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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES LEGISLATION AMENDMENT
(SERIOUS AND ORGANISED CRIME) BILL (No. 2) 2009
EXPLANATORY MEMORANDUM
(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
This Bill amends the Administrative Decisions (Judicial Review) Act 1977,
the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, the
Australian Crime Commission Act 2002, the Crimes Act 1914, the Criminal
Code Act 1995, the Customs Act 1901, the Law Enforcement Integrity
Commissioner Act 2006, the Mutual Assistance in Criminal Matters Act 1987,
the Proceeds of Crime Act 2002, the Surveillance Devices Act 2004, the
Telecommunications (Interception and Access) Act 1979, and the Witness
Protection Act 1994.
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. In June 2009, the
Government introduced the Crimes Legislation Amendment (Serious and
Organised Crime) Bill, which implements the Commonwealth's commitment at
the April SCAG meeting to enhance its legislation to combat organised
crime. In August 2009, SCAG agreed to further legislative and operational
arrangements to support the national response to organised crime.
This Bill implements legislative aspects of the national response to
organised crime that were not implemented by the first Bill, and includes
additional measures to strengthen existing laws to more effectively
prevent, investigate and prosecute organised crime activity, and target the
proceeds of organised criminal groups. The Bill:
. strengthens criminal asset confiscation and anti-money laundering laws
(Schedule 1 and Schedule 5, Part 2)
. enhances search and seizure powers and the ability of law enforcement
to access data from electronic equipment (Schedule 2)
. improves 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)
. introduces new offences that would target persons involved in organised
crime, and facilitates greater access to telecommunications
interception for the investigation of new serious and organised crime
offences (Schedule 4)
. improves the operation and accountability of the Australian Crime
Commission (Schedule 7)
. improves money laundering, bribery, and drug importation offences
(Schedule 5, Part 1, and Schedules 8 and 9), and
. makes minor and consequential amendments to correct references to
provisions dealing with the extension of criminal liability (Schedules
10 and 11).
The Bill also makes an urgent amendment to preserve the ability of federal
defendants in Victoria to appeal a finding that they are unfit to plead
(Schedule 6).
These measures are further described below.
PURPOSE
The purpose of Schedule 1 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 on the Independent Review of the Operation of the
Proceeds of Crime Act 2002 (Cth), by Mr Tom Sherman AO, which was tabled in
Parliament in October 2006.
The amendments in Schedule 1 will:
. make tests for exclusion and recovery of property fairer and more
consistent, including by strengthening protections for third parties
. improve the operation of examination provisions
. increase the effectiveness of information gathering tools under the
Proceeds of Crime Act
. clarify the operation of orders ancillary to restraining orders
. address technical recommendations with respect to the admission of
evidence
. ensure the correct calculation of pecuniary penalty orders
. expand and clarify definitions used in the Act, and
. make minor and technical amendments to the Act, including to enhance
the effectiveness of the Confiscated Assets Account.
The overarching purpose of these amendments is to improve the operation of
the Proceeds of Crime Act, to ensure that it can be used effectively to
deprive persons involved in organised crime of the financial benefits of
their criminal activity.
Schedule 2 contains search related amendments that will target two main
aspects of the search warrant provisions in the Crimes Act 1914. Firstly,
the reforms will allow material seized under Part IAA, and documents
produced under Division 4B, to be used by, and shared between,
Commonwealth, State and Territory and foreign law enforcement agencies.
This is necessary for the proper investigation of offences which cross
jurisdictional boundaries. The second component of the amendments will
ensure that law enforcement agencies are able to effectively and
efficiently access and search electronic equipment to keep up with
technological advancements.
Schedule 3 will amend the Witness Protection Act 1994 to improve the
operation of the National Witness Protection Program (NWPP). The NWPP
provides protection and assistance to people who are assessed as being
in danger because they have given, or have agreed to give, evidence or
a statement on behalf of the Crown in criminal or certain other
proceedings, or because of their relationship to such a person.
The amendments include measures that draw on recommendations made in
the Review of the National Witness Protection Program of December 2003
and are informed by operational experience with the NWPP. The
amendments will:
. provide increased protection and security for witnesses and others
included in the NWPP, as well as officers involved in the operation of
the NWPP
. allow protection and assistance available under the NWPP to be
extended to former participants and other related persons where
appropriate, and
. ensure that State and Territory participants are afforded the same
protection and have the same obligations as Commonwealth participants.
The purpose of Schedule 4 is to insert new offences targeting persons
involved in serious and organised crime into the Criminal Code Act
1995. The proposed amendments implement resolutions agreed to by the
Standing Committee of Attorneys-General (SCAG) in April and August 2009
as part of the national response to organised crime. The SCAG
resolutions included consideration of measures to enhance the
legislative response to organised crime, including through the
introduction of new criminal offences.
The amendments will introduce new offences criminalising associating
with persons involved in organised criminal activity, as well as those
who support, commit crimes for or direct the activities of a criminal
organisation. The amendments will also facilitate greater access to
telecommunications interception powers for the investigation of the new
offences.
The purpose of Part 1 of Schedule 5 is to enhance the ability of law
enforcement agencies to investigate and prosecute the money laundering
offences in Division 400 of the Criminal Code. The amendments are intended
to address problems identified by the CDPP and AFP when investigating and
prosecuting the money laundering offences in Division 400. In particular,
the amendments extend the geographical jurisdiction of those offences and
remove limitations on the scope of the offences to enable them to apply to
the full extent of the Commonwealth's constitutional power in this area.
The purpose of Part 2 of Schedule 5 is to address issues identified by
AUSTRAC, the anti-money laundering and counter-terrorism financing
regulator, when taking enforcement action against reporting entities that
do not comply with their obligations under the AML/CTF Act.
Schedule 6 will make an urgent amendment to the Crimes Act to ensure that
federal defendants in Victoria can continue to appeal a finding that they
are unfit to plead. This will address changes to Victorian legislation
that take effect from October 2009.
Schedule 7 will amend the Australian Crime Commission Act 2002 to
improve the operation and accountability of the Australian Crime
Commission (ACC), including by enhancing the ACC's powers to deal with
uncooperative witnesses, clarifying procedural powers for issuing
summons and notices to produce, and requiring regular, independent
review of the ACC.
Schedule 8 will increase the penalties for the offences of bribing a
foreign public official (section 70.2 of the Criminal Code Act 1995)
and bribery of a Commonwealth public official (section 141.1 of the
Criminal Code).
Schedule 9 will extend the definition of 'import' in Division 300 of
the Criminal Code to include 'dealing with a substance in connection
with its importation'. The effect of this amendment is that the
Commonwealth drug importation offences will capture a broader range
of criminal activity.
The purpose of Schedules 10 and 11 is to make minor and consequential
amendments to ensure that references to the extensions of criminal
responsibility provisions in Part 2.4 of the Criminal Code are correct.
FINANCIAL IMPACT STATEMENT
The amendments in this Bill have no financial impact on Government revenue.
ACRONYMS
AD(JR) Act Administrative Decisions (Judicial Review) Act 1977
ACC Australian Crime Commission
ACC Act Australian Crime Commission Act 2002
ACLEI Australian Commission for Law Enforcement Integrity
AFP Australian Federal Police
AFP Act Australian Federal Police Act 1979
CAA Confiscated Assets Account
CDPP Commonwealth Director of Public Prosecutions
CMIA Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)
IGC-ACC Inter-Governmental Committee of the ACC
ITSA Insolvency and Trustee Service Australia
NWPP National Witness Protection Program
PJC-ACC Parliamentary Joint Committee on the ACC
Sherman Report Report on the Independent Review of the Operation of the
Proceeds of Crime Act 2002 (Cth)
TIA Act Telecommunications (Interception and Access) Act 1979
TP Act Trade Practices Act 1974
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 (No.2)
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.
Clause 4: Regulation-making power
This clause will allow the Governor-General to make regulations necessary
for, or prescribed by, the Crimes Legislation Amendment (Serious and
Organised Crime) Act (No. 2) 2009. The regulation-making power will ensure
that where necessary, matters of a transitional nature relating to
amendments or repeals made by this Act may be prescribed.
Schedule 1 - Proceeds of Crime
GENERAL OUTLINE
Schedule 1 will amend the Proceeds of Crime Act 2002 (the Act) to implement
the recommendations of law enforcement agencies and arising out of the
Sherman Report.
Part 1 addresses the provisions in Chapter 2 of the Act, which enable a
person whose property has been restrained or forfeited to apply to recover
their property, have their property excluded from restraint or forfeiture,
or be compensated for their legitimately obtained interest in the property.
Part 1 amends the tests for exclusion and recovery of property in order to
achieve greater consistency and to ensure that tests are not harder for
third parties to satisfy than for respondants. Part 1 also introduces a
new provision enabling a person to apply to be compensated for their
legitimately obtained interest in the property if it was forfeited
'automatically' (that is, upon conviction of a serious offence).
Part 1 introduces a new provision which requires the CDPP to provide
notification of the date on which 'automatic' forfeiture will occur. The
provision will require the CDPP to notify all persons reasonably suspected
to be affected by the forfeiture, so that these persons are aware of the
date of forfeiture and have an opportunity to consider their rights in
relation to the property.
Part 1 also clarifies the definition of 'conviction day', as the current
definition has proven to be ambiguous. This clarification is essential as
the date on which property is forfeited to the Commonwealth is determined
by reference to the date of conviction.
Part 2 addresses the provisions in Part 2-4 of the Act, which relate to
pecuniary penalty orders. Part 2 ensures that provisions governing the
calculation of pecuniary penalty orders are clear. It introduces the
ability for the court to reconsider a pecuniary penalty order in certain
circumstances (for example, where property that was excluded from
forfeiture is subsequently excluded, recovered or in respect of which
compensation is paid) and clarifies the way pecuniary penalty orders are
calculated. Part 2 also clarifies provisions relating to the jurisdiction
of magistrates.
Part 3 expands the circumstances in which examination orders can be made.
This will enhance the ability to identify property for enforcement action
and assist determination of whether applications for compensation and/or
recovery and exclusion of property are legitimate. Part 3 also clarifies
that applications for examination orders can be made ex parte, strengthens
existing penalties for offences relating to examinations and introduces a
new offence of providing false or misleading answers or documents in
connection with an examination.
Part 4 amends provisions relating to information gathering, to increase
efficiency. Electronic production of documents is now provided for, as is
the ability to reduce the time in which documents and information must be
produced in accordance with an order or notice. This power is intended to
apply only in urgent situations. The definition of 'account' has been
expanded to include credit card accounts, loan accounts and closed
accounts, and a power to obtain information about stored value cards has
also been included.
Part 5 clarifies the way in which orders ancillary to restraining orders
are to be made and operate. Part 5 removes the privilege against self-
incrimination in relation to providing a sworn statement about particulars
of, or dealings with, property. The removal of the privilege is in
response to a court decision which held that the privilege was impliedly
removed. The provision is designed to clarify the existing position, but
provides a use immunity.
Part 6 implements technical recommendations of the Sherman Report about the
use of transcripts of evidence from examination hearings in other
proceedings under the Act. Part 7 clarifies definitions used in the Act,
including the definitions of 'effective control' and 'serious offence'.
Part 8 also implements technical recommendations of the Sherman Report that
relate to the circumstances in which the court can make certain orders.
Part 9 amends provisions relating to the Confiscated Assets Account. These
provisions are designed to increase the effective administration of the
Account, and to make clear on the face of the legislation, the source of
funds coming into, and out of, the account.
Part 10 amends the Administrative Decisions (Judicial Review) Act 1977 to
state that decisions of the CDPP to apply for an order under the Act are
not subject to judicial review. As with criminal proceedings, questions
about the validity of proceedings under the Act can be examined during the
course of proceedings under the Act and a separate stage of review is not
necessary.
Part 1 - Exclusion, recovery and compensation
Proceeds of Crime Act 2002
Item 1 - Subsection 29(1)
This item omits 'may' and inserts 'must' into subsection 29(1) of the Act.
The effect of this amendment will be that a court is required to exclude
property from a restraining order where certain criteria are satisfied.
This amendment aligns the requirement for a court to exclude property from
a restraining order, with the court's existing requirement for a court to
exclude property from a forfeiture order under sections 73 and 94 (as
amended by Item 50).
Item 2 - Subsection 29(1)
This item omits the term 'specified' and substitutes 'a specified *interest
in'.
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 3 - Paragraph 29(1)(b)
This item omits the term 'property' from paragraph 29(1)(b) and substitutes
that term with 'interest'.
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 4 - Subsection 29(2)
This item omits the term 'specified' and substitutes 'a specified *interest
in'.
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 5 - Paragraphs 29(2)(a), (b), (c) and (d)
Item 5 will omit the term 'property' from paragraphs 29(2)(a), (b), (c) and
(d) and substitutes that term with 'interest'.
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 6 - Subsection 29(3)
Item 6 inserts 'a specified *interest in' before 'property' in subsection
29(3) of the Act.
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 7 - Paragraphs 29(3)(a) and (d)
Item 7 will omit the term 'property' from paragraphs 29(3)(a)and (d) and
substitutes that term with 'interest'.
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 8 - Subsection 29(4)
Item 8 inserts 'a specified *interest in' before the first occurring
reference to 'property' in subsection 29(4).
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 9 - Paragraph 29(4)(a)
Item 9 omits the words 'owns the property' and substitutes 'has the
interest'.
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 10 - Paragraph 29(4)(b)
Item 10 omits the terms 'property is not owned' and substitutes that term
with 'interest is not held'.
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 11 - Section 29A
Item 11 omits 'may' and inserts 'must' into section 29A of the Act. The
effect of this amendment will be that a court is required to exclude
property from a restraining order where certain criteria are satisfied.
This amendment aligns the requirement for a court to exclude property from
a restraining order, with the requirement for a court to exclude property
from a restraining order under section 29 and from a forfeiture order under
sections 73 and 94 (as amended by Item 50).
Item 12 - Section 29A
Item 12 omits the term 'specified' and substitutes 'a specified *interest
in'.
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 13 - Paragraph 29A(b)
Item 13 repeals paragraph 29A(b) and replaces it with a provision that
refers to an 'interest' held by a person instead of 'property of a person'.
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 14 - Section 29A (note)
Item 14 omits the words 'an examination of the applicant' and substitutes
'examinations in relation to the restraining order'. This is a
consequential amendment, necessary because of Item 18 which amends
paragraph 32(1)(b).
Item 15 - Subsection 30(1)
This item repeals subsection 30(1) and substitutes a new subsection that
removes the time limit requiring a person to make an application to exclude
property from a restraining order within 14 days of being notified of the
application for the order.
The effect of the new paragraph is that, if a restraining order could cover
property in which a person claims an interest, that person may apply under
section 30 up until the time the restraining order is made. This amendment
will encourage people who have an interest in property to apply for an
order at an early stage in proceedings. It also corrects the anomalous
situation under the existing subsection, where a person who fails to make
an application within the time limit has to wait for the restraining order
to be made so that they can seek to have the property excluded from the
restraining order under section 31.
This item also updates the heading to section 30 by omitting 'after notice
of the application for the order' and substituting 'before restraining
order has been made'.
Item 16 - Subsection 31(1)
Item 16 repeals subsection 31(1) and inserts new subsections (1) and (1A).
Currently, a person can only apply under subsection 31(1) for an order to
exclude property after he or she has been notified of the restraining
order. The effect of this subsection is that a person who has a lawfully
obtained interest in property, but was not notified of the restraining
order, may be ineligible to apply under this section to have their interest
in the property excluded from the restraining order.
This amendment will allow any person, who claims an interest in the
property specified in the restraining order, to apply for an exclusion
order regardless of whether notice has been provided to the person.
Subsections 31(1) and (1A) provide that an application may be made at any
time after the restraining order is made. An application must be made to
the court that made the restraining order.
This item also updates the heading to section 31 by omitting 'notice of the
order' and substituting 'restraining order has been made'.
Item 17 - At the end of subsection 31(6)
Item 17 inserts a new sentence at the end of subsection 31(6) to align this
subsection with subsection 75(3). This item implements recommendation D5
of the Sherman Report.
Under subsections 31(6) and 75(3) of the Act the CDPP is required to give
notice of the grounds on which it proposes to contest an application to
exclude property from a restraining order or forfeiture order respectively.
However, subsection 75(3) provides that notice need not be given until the
CDPP has had a reasonable opportunity to examine the applicant. This
ensures the CDPP has an opportunity to explore an applicant's property for
any links to proceeds of crime, prior to a court considering whether to
exclude that property from forfeiture. There is no equivalent provision in
subsection 31(6).
This item inserts a new sentence into subsection 31(6) which clarifies that
the CDPP does not need to give notice of the grounds on which it proposes
to contest an application until it has had a reasonable opportunity to
conduct examinations in relation to the restraining order.
Item 18 - Paragraph 32(b)
Item 18 omits 'an *examination of the applicant' and substitutes
'*examinations in relation to the application'.
Currently under the Act, a court must not hear an application to exclude
specified property from a restraining order unless the CDPP has been given
a reasonable opportunity to conduct an examination of the applicant.
However, there are some cases where the CDPP may need to examine not only
the applicant but also one or more other persons prior to the hearing of
the exclusion application. This can arise for example, where property of a
third party is restrained on the basis that it is subject to the effective
control of the suspect, and the third party applies for the application for
the property to be excluded on the basis that the property is not in fact
subject to the suspect's effective control. In this case, it may be
necessary for the CDPP to have the opportunity to examine not only the
third party applicant, but also the suspect, prior to the hearing of the
exclusion application.
This amendment will ensure the CDPP is given the opportunity to examine any
person that may have information relevant to an application for an
exclusion order, prior to the application being heard by a court.
Items 18 and 28 implement recommendation D6 of the Sherman Report.
Item 19 - Application
This item sets out the application of amendments to Division 3 of Part 2-1
of the Act (excluding property from restraining orders), that are contained
in this Part. The amendments apply in relation to restraining orders
applied for on or after the commencement of this item, whether the conduct
constituting the offence to which the restraining order relates occurs
before, on, or after the commencement of this item.
Item 20 - Subsection 73(1)
This item inserts the words 'a specified *interest in' before 'property' in
subsection 73(1).
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 21 - Paragraph 73(1)(b)
This item omits the reference to 'the applicant's property' and substitutes
'property in which the applicant has an interest.'
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 22 - Paragraphs 73(1)(c), (d) and (e)
This item repeals paragraphs 73(1)(c), (d) and (e) and introduces new
paragraphs 73(1)(c) and (d) in relation to excluding property from a
forfeiture order.
Currently, paragraph 73(1)(d) specifies the test which allows a third party
to apply for exclusion of property from a forfeiture order under sections
47 and 49. Paragraph 73(1)(c) specifies the test that applies to a
suspect. At present, the provisions are more onerous for a third party than
for a suspect, as a third party must show that they were not involved in
the commission of any of the offences to which the application relates. The
same requirement does not apply to a suspect. It is anomalous that a third
party would face a more difficult test than a suspect. This item ensures
that all parties have the same test when they apply for an exclusion order.
This item repeals these provisions and inserts a new test in paragraph
73(1)(c) that applies equally to suspects and third parties in relation to
exclusion from a forfeiture order under section 47 and 49. Under this
test, before granting an exclusion order, a court must be satisfied that
the applicant's interest is not proceeds of unlawful activity or, if the
forfeiture order was based on a serious offence, an instrument, of that
offence.
A new test is also added in subsection 73(1)(d) that applies to a
forfeiture order under section 48. Under this test, before granting an
exclusion order, a court must be satisfied that the applicant's interest in
property is not proceeds, or an instrument of, any of the offences to which
the forfeiture order or forfeiture application relates.
Items 23 and 24 - Paragraphs 73(2)(a),(b), (c) and (d)
These items omits the term 'property' from the above paragraphs and
substitutes that term with 'interest'.
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. These amendments are part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 25 - Subsection 74(1)
This item omits the reference to 'the *person's property' and substitutes
'property in which the person claims an *interest.'
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 26 - Subsections 74(2) and (3)
This item repeals subsections 74(2) and (3) and inserts new provisions
governing when a person can make an application for an exclusion order
after a forfeiture order has been made.
This item will ensure consistency between the application provisions for
exclusion of property from a restraining order (section 31) and exclusion
of property from a forfeiture order.
Under the new provisions, once a forfeiture order has been made, subsection
74(2) enables a person who claims an interest in property specified in that
forfeiture order, to apply to have that interest in property excluded.
Subsection 74(3) restricts the ability for a person to apply for an order,
if the person appeared at the hearing of the forfeiture application, or if
the person was notified of the application for the forfeiture order and did
not appear at the hearing of that application. In these instances a person
can only make an application where the court gives leave.
Where a person seeks the leave of the court, subsection 74(4) provides that
the court may only grant leave if certain circumstances apply. If the
person was notified of the application for a forfeiture order and failed to
appear at the hearing of that application, the court may grant leave if the
person had a good reason for not appearing. If the person did appear, the
court may grant leave if that person now has new evidence (which was not
available at the time of hearing). Paragraph 74(4)(c) also provides the
court with a discretion to grant leave if there are special grounds.
The aim of this amendment is to encourage people to make an application for
property to be excluded, prior to forfeiture of property. This will assist
in the timely administration of the Act, as a court can consider an
application to exclude property within the context of the forfeiture
proceedings. The circumstances where a person is required to seek the
court's leave are limited to situations where a person has already had a
reasonable opportunity to raise their claim to an interest in property
prior to a forfeiture order being made (either because they have been given
notice of the application for forfeiture and did not appear, or appeared at
the hearing of the forfeiture application and new evidence is available
that was not available at the time of hearing).
Items 27 - Subsection 75(3)
Item 27 omits the words 'examine the applicant under Part 3-1" and
substitutes 'conduct *examinations in relation to the application'. This
item is consequential on the amendment of section 76 by Item 28.
Item 28 - Section 76
Item 28 omits the words 'examine the applicant under Part 3-1" and
substitutes 'conduct *examinations in relation to the application.'
Currently under the Act, the court must not hear an application to exclude
specified property from a forfeiture order unless the CDPP has been given a
reasonable opportunity to conduct an examination of the applicant.
However, there are some cases where the CDPP may need to examine not only
the applicant but also one or more other persons prior to the hearing of
the exclusion application.
Item 28 will ensure the CDPP is given the opportunity to examine any person
that may have information relevant to an application for an exclusion
order, prior to the application being heard by a court.
Items 18 and 28 implement recommendation D6 of the Sherman Report.
Item 29 - Subdivision C of Division 5 of Part 2-2 (heading)
This item repeals the current heading to Subdivision C of Division 5 of
Part 2-2, and replaces it with 'compensating for proportion of property not
derived or realised from commission of any offence'. This more accurately
reflects the new wording of subsection 77(1), as amended by Item 30.
Item 30 - Subsection 77(1)
Item 30 repeals subsection 77(1) and replaces it with a new subsection
relating to making a compensation order.
Currently, section 77 refers to compensation being available if, when the
property first became proceeds of that offence a proportion of the property
was not acquired using the proceeds of an offence. This limits a court's
consideration to a particular moment in time, which could frustrate the
purpose of the Act. For example, if a $500,000 house was purchased with a
deposit of $50,000 derived from crime and a legitimate loan of $450,000,
only 10% of the value was obtained with illegitimate funds when the
property first became the proceeds of crime. If mortgage payments are
subsequently made entirely with proceeds of crime, a court might be
prevented from considering the later use of illegitimate funds because they
are not relevant to when the house first became proceeds. This could
result in compensation being paid where it should not be paid.
Under the new subsection 77(1), before making a compensation order, a court
must be satisfied that the portion of the applicant's interest that is to
be compensated was not derived or realised, directly or indirectly, from
the commission of any offence, and is not an instrument of any offence.
Item 31 - Paragraph 77(2)(b)
Item 31 inserts the words 'once the property has vested absolutely in it'
into paragraph 77(2)(b).
This amendment clarifies that the Commonwealth is not required to carry out
the directions specified by the court under paragraph 77(2)(b) until the
property vests absolutely in the Commonwealth. The current phrasing of
paragraph 77(2)(b) could arguably require the Commonwealth to handle
property where it only has a limited ability to deal with that property in
practice. For example, for certain types of property the Commonwealth only
gains an equitable interest on the making of a forfeiture order and the
property does not vest absolutely in the Commonwealth until certain
registration requirements have been complied with. For the period that the
Commonwealth only has an equitable interest, the Commonwealth is limited in
its ability to dispose of property because it is not listed as the
registered owner. This amendment ensures that an obligation is not placed
on the Commonwealth that is contrary to its actual ability to deal with
property.
Item 32 - Section 78
Item 32 repeals section 78 and inserts a new section on applying for
compensation orders.
This item aligns section 78 with the provisions relating to applying for an
order to exclude property from a restraining order (under section 31) or a
forfeiture order (under section 74, as amended by Item 26).
Under the new provisions, subsection 78(1) sets out the process for
applying for a compensation order prior to forfeiture. This subsection
states that a person who claims an interest in property that is specified
(or could be specified) in an application for a forfeiture order may apply
to a court for a compensation order.
If a forfeiture order has been made, subsection 78(2) enables a person who
claims an interest in property specified in that forfeiture order to apply
to the court that made the forfeiture order, for a compensation order.
Subsection 78(3) restricts the ability of a person to apply under
subsection 78(2), if a person was notified of the application for the
forfeiture order and did not apply for a compensation order prior to
forfeiture, or if they appeared at the forfeiture order hearing. In these
instances a person can only make an application where the court gives
leave.
Where a person seeks the leave of the court, subsection 78(4) provides that
the court may only grant leave if certain circumstances apply. If the
person was notified of the application for a forfeiture order and failed to
make an application for compensation prior to forfeiture, the court may
grant leave if a person had a good reason for not making an application.
The court may also grant leave if that person has new evidence (which was
not available at the time of hearing) or if the court is satisfied that
there are special grounds for granting leave.
The aim of these amendments is to encourage people to make an application
for property to be compensated, prior to forfeiture of property. This will
assist in the timely administration of the Act, as a court can consider an
application for compensation within the context of the forfeiture
proceedings. The circumstances where a person is required to seek the
court's leave are limited to situations where a person has had a reasonable
opportunity to exercise their claim to property prior to forfeiture (either
because they have been given notice of the application for forfeiture or
have appeared at the hearing of the forfeiture application and new evidence
is now available), and have not done so.
Item 33 - At the end of subsection 79(3)
Item 33 amends subsection 79(3) to provide that the CDPP need not give
notice of the reasons that it proposes to contest an application for
compensation until it has had a reasonable opportunity to conduct
examinations in relation to the application. This amendment is
consequential on Item 103, which inserts section 180B.
Item 34 - At the end of Subdivision C of Division 5 of Part 2-2
Item 34 inserts a new section 79A, which provides that a court must not
hear an application for a compensation order until the CDPP has had a
reasonable opportunity to conduct examinations in relation to the
application. This amendment is consequential on Item 103, which inserts
section 180B.
Item 35 - Application
This item sets out the application of amendments of this Part applying
Subdivisions B and C of Division 5 of Part 2-2. The application of these
amendments is determined by reference to either the date of application for
a restraining order, or the date of application for a forfeiture order.
Where the provisions relate to a forfeiture order that was or would be made
under sections 47 or 49 of the Act, the date of application for the
restraining order (upon which the forfeiture order relies) is the relevant
date for determining when these amendments apply. The restraining order
must be applied for on or after the commencement of this item for these
amendments to apply. This is regardless of whether the conduct
constituting the offence (which led to the commencement of confiscation
action) occurred or occurs before, on or after the commencement.
Where the provisions relate to a forfeiture order that was or would be made
under section 48 of the Act, the date of application for the forfeiture
order is the relevant date for determining the application of the
amendments. The forfeiture order must be applied for on or after the
commencement of these amendments to apply. This is regardless of whether
the conduct constituting the offence (which led to the commencement of
confiscation action) occurred or occurs before, on or after the
commencement.
Item 36 - Section 91 (simplified outline)
This item inserts a simplified outline that indicates there are cases in
which compensation is payable to the Commonwealth.
Item 37 - Paragraph 92(1)(a)
Item 37 omits the word 'the' and substitutes 'a' in paragraph 92(1)(a).
This amendment is to remove ambiguity as to the identity of 'the person'.
Referring to 'the person' in section 92 may leave the provision open to
being interpreted by reference to 'the person' in other sections. This
could have unintended consequences for the operation of the section. By
referring to 'a person' in paragraph 92(1)(a) it removes the possibility of
this term being interpreted by reference to other sections. The reference
to 'a person' in paragraph 92(1)(a) links all subsequent references to 'the
person' in section 92 back to the person referred to in paragraph 92(1)(a).
Item 38 - Subparagraph 92(1)(b)(i)
Item 38 inserts the words 'under section 17 or 18' after 'order' in
subparagraph 92(1)(b)(i).
This item clarifies that automatic forfeiture under section 92 is only
intended to apply to property subject to a restraining order under sections
17 or 18. By specifically referring to sections 17 and 18, it removes the
possibility of property that is subject to restraining orders under
sections 19, 20 and 20A being subject to automatic forfeiture.
Item 39 - Paragraph 92(3)(a)
Item 39 omits the reference to 'day of the conviction' and substitutes
'*conviction day'. This amendment is consequential on Item 66, which
amends the definition of 'conviction day' in paragraph 333(1)(a).
Item 40 - After section 92
Item 40 inserts section 92A after section 92 of the Act. Section 92A will
require the CDPP to take reasonable steps to give certain people notice of
the date of automatic forfeiture.
Currently under the Act, there is no requirement that a defendant or any
other person be notified of the potential for automatic forfeiture. This
creates a risk that a person may have their property forfeited to the
Commonwealth without knowing the date that forfeiture is due to take place
or having the opportunity to consider their rights in relation to the
property. The purpose of this amendment is to ensure that a person who may
have an interest in property will be given notice of the automatic
forfeiture and their associated rights in relation to that property.
Subsection 92A(1) sets out the people to whom the CDPP must give notice to
including any person who has (or claims) an interest or whom the CDPP
reasonably believes may have an interest in the property that will be
subject to automatic forfeiture. Paragraphs 92A(1)(a),(b) and (c) state
what the notice must contain, which includes the date that the property is
due to be forfeited and the rights the person has to seek certain orders in
relation to the property. Those orders include extending the period before
property is forfeited, exclusion of property from the restraining order or
from forfeiture, and compensation.
Subsection 92A(2) provides that the CDPP does not need to give a notice to
a person if that person has made an application for an exclusion order
(under sections 30, 31 or 94) and an application under section 93 to extend
the period before property is forfeited.
Item 41 - Paragraph 93(1)(a)
Item 41 omits the last occurring reference to 'day of' and substitutes
'conviction day for'. This amendment is consequential on Item 66 which
amends the definition of 'conviction day' in paragraph 333(1)(a).
Items 42 and 43 - Paragraphs 93(1)(b) and (c)
These items omit the reference to '31' and substitutes 'references to
sections 30, 31 or 94'.
If a person is convicted of a serious offence, section 92 of the Act
provides that six months after the conviction is recorded, any property
covered by a restraining order relating to that offence is forfeited to the
Commonwealth.
Currently under section 93, a court may extend the time period before
property is forfeited under section 92, if a person has applied for
property to be excluded from a restraining order under section 31.
However, it is also possible for a person to make an application for
property to be excluded from a restraining order under section 30 or from
forfeiture under section 94. These items amends section 93 to provide that
a court may also extend the time period before property is forfeited if a
person has applied for property to be excluded under sections 30 and 94.
These items implements Recommendation D14 of the Sherman Report.
Item 44 - Subsection 93(1)
Item 44 omits the last occurring reference to 'day of' and substitutes
'conviction day for'. This amendment is consequential on Item 66 which
amends the definition of 'conviction day' in paragraph 333(1)(a).
Item 45 - Subsection 93(2)
Item 45 omits the reference to '31' and substitutes '30, 31 or 94'. This
item is consequential on Items 42 and 43 which amends paragraphs 93(1)(b)
and (c).
Item 46 - Subsection 93(2)
Item 46 omits the reference to 'day of' and substitutes 'conviction day
for'. This amendment is consequential on Item 66 which amends the
definition of 'conviction day' in paragraph 333(1)(a).
Item 47 - Subsection 93(3)
Item 47 omits the reference to '31' and substitutes '30, 31 or 94'. This
item is consequential on Item 42 which amends paragraphs 93(1)(b) and (c).
Item 48 - At the end of section 93
Item 48 inserts new subsection 93(4).
The effect of this subsection is that, when an order extending the date of
forfeiture is made under section 93, the CDPP will be required to give
certain people a written notice.
Subsection 93(4) specifies whom the CDPP must provide notice to, including
a person who has or claims an interest in the property that may be
forfeited, and any person that the CDPP reasonably believes may have an
interest in the property.
Paragraphs 93(4)(a) and (b) state what must be included in the contents of
the notice. This includes the date on which the property is due to be
forfeited and the effect of subsections 93(2) and (3). This amendment
ensures that people who have an interest in the property are made aware of
the date of forfeiture.
Item 49 - Subsection 94(1)
This item omits 'the *restraining' and inserts 'a *restraining'. This is
to maintain consistent wording with section 94A, which is inserted by Item
57.
Item 50 - Subsection 94(1)
This item omits 'may' and inserts 'must' into subsection 94(1) of the Act.
The effect of this amendment will be that a court is required to exclude
property from forfeiture where certain criteria are satisfied. This
amendment aligns the requirement for a court to exclude property from
forfeiture, with the requirement for the court to exclude property from a
restraining order and a forfeiture order under section 29 (as amended) and
section 73 respectively.
Item 51 - Paragraphs 94(1)(a),(b) and (c)
Item 51 repeals paragraphs 94(1)(a),(b) and (c) and inserts two new
paragraphs.
Under the current section 94, only a suspect can apply under the section to
have property excluded from forfeiture. Currently, where a third party
claims an interest in property they can either apply for an order to
exclude property from the restraining order, or wait until forfeiture has
occurred and apply for recovery of the property.
This amendment corrects this anomaly and expands the provision so that it
applies equally to third parties and suspects. The effect of this
amendment is that a court must exclude property from forfeiture where it is
satisfied that a person has an interest in property covered by a
restraining order that the interest is not proceeds of unlawful activity or
an instrument of unlawful activity, and that the interest has been lawfully
acquired.
Item 52 - Paragraph 94(1)(d)
Item 52 omits the word 'the' and substitutes 'a' in paragraph 94(1)(d).
This item is consequential on Item 51, which amends section 94 to allow
either the person convicted of the serious offence or a third party to make
an application.
Item 53 - Paragraph 94(1)(e)
Item 53 inserts the words 'applicant's interest in the' before 'property'
in paragraph 94(1)(e).
The Act currently uses the terms '*property' and '*interests'
interchangeably and with little uniformity. This amendment is part of a
broader set of amendments to the Act which will make the use of these terms
more consistent.
Item 54 - Paragraph 94(1)(f)
Item 54 omits the term 'defendant's' and replaces that term with
'applicant's'. This item is consequential on Item 51, which amends section
94 to allow either the person convicted of the serious offence or a third
party to make an application.
Item 55 - At the end of subsection 94(5)
Item 55 inserts the words 'However, the DPP need not do so until it has had
a reasonable opportunity to conduct *examinations in relation to the
application'.
This amendment clarifies that the CDPP does not need to give notice of the
grounds on which it proposes to contest an application until it has had a
reasonable opportunity to conduct examinations in relation to the
restraining order.
This item aligns subsection 94(5) with similar provisions in subsections
31(6) (as amended) and 75(3).
Item 56 - At the end of section 94
Item 56 inserts subsection 94(6) at the end of section 94.
New subsection 94(6) provides that an application for an exclusion order
must not be heard until the CDPP has had a reasonable opportunity to
conduct examinations in relation to an application. This amendment will
ensure the CDPP has an opportunity to explore whether the relevant property
has any links to proceeds of crime, prior to a court considering whether to
exclude that property from forfeiture.
This item is based on similar provisions in sections 32 and 76.
Item 57 - After section 94
Item 57 inserts a new section 94A after section 94 of the Act.
This item corrects an anomaly in the Act, whereby compensation is available
if property has been forfeited to the Commonwealth under a forfeiture order
but not if it has been automatically forfeited under section 92.
Section 94A inserts a new provision relating to the granting of
compensation where property has been forfeited under section 92. This
amendment will ensure that where property that was automatically forfeited
was acquired with both the proceeds of an offence and legitimately obtained
funds, the owner of the forfeited property is compensated for the
legitimately obtained proportion of the property. This provision has been
modelled on section 77 of the Act, which allows for compensation where a
forfeiture order has been made.
Under subsection 94A(1), the court must be satisfied that the applicant has
an interest in the property, and that a proportion of the value of the
applicant's interest was not derived or realised, directly or indirectly,
from the commission of any offence, and is not an instrument of any
offence. Once the court is satisfied of this, the court must make a
compensation order.
Subsection 94A(2) provides that the order must specify the proportion of
the value of that property that was not derived or realised from the
commission of any offence and is not the instrument of any offence, and
direct the Commonwealth to dispose of the property and pay the applicant
that proportion of the sum received after the costs and disbursements of
the Official Trustee are paid.
Subsection 94A(3) allows a person who claims an interest in property that
is to be forfeited under section 92 to apply to the court for a
compensation order at any time.
Subsection 94A(4) restricts the ability for a person to make an application
for a compensation order if the person received notice of automatic
forfeiture and did not apply for a compensation order prior to forfeiture
occurring. In these instances a person can only make an application where
the court gives leave.
Where a person seeks the leave of the court, subsection 94A(5) provides
that the court may only grant leave if it is satisfied that:
. the person had a good reason for not making a compensation application
prior to forfeiture,
. the person has evidence relevant to their application for compensation
that was not available before forfeiture occurred, or
. there are special grounds for granting the leave.
The aim of these amendments is to encourage people to make an application
for property to be compensated, prior to forfeiture of property. The
circumstances where a person is required to seek the court's leave are
limited to situations where a person has either been given an indication of
their right to seek certain orders in relation to their interest in
property prior to forfeiture or their actions indicate that they are aware
of their rights in this regard. This includes when a person has been given
a notice under subsection 92A(1).
Subsection 94A(6) provides that the person must give the CDPP notice of the
application for compensation and the grounds on which compensation is being
sought. Subsection 94A(8) requires the CDPP to give the applicant notice of
any grounds on which it proposes to contest the application. However, the
CDPP does not need to provide this notice until it has had a reasonable
opportunity to conduct examinations in relation to the order.
Subsection 94A(9) provides that a court must not hear an application for
compensation until the CDPP has had a reasonable opportunity to conduct
examinations in relation to the order.
Item 58 - Subsection 102(1)
Item 58 omits (1) from the start of subsection 102(1). This amendment is a
consequence of Item 62 which repeals subsections 102(2) and (3).
Item 59 - Subsection 102(1)
This item omits 'may' and inserts 'must' into subsection 102(1) of the Act.
The effect of this amendment will be that a court is required to make an
order directing the Commonwealth to transfer the applicant's interest back
to the applicant or requiring the Commonwealth to pay the applicant an
amount equal to the value of their interest, where certain criteria are
satisfied. This amendment aligns the requirement for a court to make an
order under section 102, with the requirement for a court to exclude
property from a restraining order under section 29 (as amended by Item 1)
or from a forfeiture order under sections 73 and 94 (as amended by
Item 50).
Item 60 - Paragraph 102(1)(b)
Item 60 repeals paragraph 102(1)(b) and substitutes a new paragraph 102(b).
The effect of this amendment is to change the test for recovery of
property under section 102.
The purpose of this amendment is to align the test for recovery of property
under section 102 with the test for exclusion of property under section 94.
Currently, the test for exclusion of property could be viewed as more
difficult to prove than the test for recovery of property, as it contains
an additional requirement that the court must be satisfied that the
applicant's interest in property was lawfully acquired. This creates an
anomalous situation where a person who unsuccessfully applies for exclusion
of property may be able to apply for recovery of their property after
forfeiture has occurred.
Under the new paragraph 102(b), before making an order a court must be
satisfied that the applicant had an interest in the property that was
forfeited and that the interest was not the proceeds of unlawful activity
or an instrument of unlawful activity. The court must also be satisfied
that the applicant's interest in the property was lawfully acquired.
Item 61 - Subparagraph 102(1)(d)(ii)
This item omits the words 'declaring that there is payable by the
Commonwealth' and substitutes 'directing the Commonwealth to pay'.
This amendment is to make subparagraph 102(1)(d)(ii) more consistent with
the wording of subparagraphs 77(2)(b)(ii) and 94(2)(b)(ii), which contain
similar directions.
Item 62 - Subsections 102(2) and (3)
Item 62 repeals subsections (2) and (3). This item is a consequence of
Item 60, which inserts a new test for recovery of property into section
102.
Item 63 - Section 104
Item 63 repeals the existing section 104 and inserts a new section 104 in
relation to applying for orders under sections 102 and 103. This amendment
will align the application provision under section 104 with similar
provisions under sections 31, 74, 78, and 94A.
Under new subsection 104(1), a person who claims an interest in property
that has been forfeited under section 92, may apply to the court at any
time for an order to transfer the property back to the applicant (under
section 102) or an order allowing the applicant to buy back the forfeited
property (under section 103).
Subsection 104(2) limits the ability of a person to apply for an order
under section 102 if they have previously been given a notice under
subsection 94A(1) in relation to the property (or were not required to be
given notice due to subsection 92A(2)), and they either did not make an
application for the property to be excluded (under sections 29 or 94), or
made and appeared at the hearing of an application under sections 29 or 94.
In these instances a person can only make an application where the court
gives leave.
Where a person seeks the leave of the court, subsection 104(3) provides
that the court may only grant leave if certain circumstances apply. If the
person received a notice under section 92A (or was not required to be
provided with a notice due to subsection 92A(2)) and failed to make an
application under section 29 or 94, the court may grant leave if the person
had a good reason for not making an application. If the person made an
application and appeared at the hearing of the application, the court may
grant leave if that person now has new evidence (which was not available at
the time of hearing). Paragraph 104(3)(c) also provides the court with a
discretion to grant leave if there are special grounds.
The aim of these amendments is to encourage people to make an application
for exclusion of property prior to forfeiture of property, rather than
waiting until after forfeiture. The circumstances where a person is
required to seek the court's leave are limited to situations where a person
has either been given an indication of their right to seek certain orders
in relation to their interest in property prior to forfeiture (or their
actions indicate that they are aware of their rights in this regard), and
that person has either chosen not to make an application or made (and
appeared at) that application. A person is not required to seek the leave
of the court if they are applying for an order under section 103. This is
because there is no equivalent pre-forfeiture provision to section 103.
Subsection 104(4) provides that the person must give the CDPP notice of the
application for an order under sections 102 or 103 and the grounds on which
the order is being sought. Subsection 104(6) requires that the CDPP give
the applicant notice of any grounds on which it proposes to contest the
application. However, the CDPP does not need to provide this notice until
it has had a reasonable opportunity to conduct examinations in relation to
the order.
Subsection 104(7) provides that a court must not hear an application for an
order under section 102 until the CDPP has had a reasonable opportunity to
conduct examinations in relation to the order.
Item 64 - Paragraph 106(b)
This item removes the reference to 'subparagraph 102(1)(d)(i)' and replaces
it with 'subparagraph 102(d)(i)'. This is necessary because Item 58 omits
subsection (1) from section 102.
Item 65 - Application
This item sets out the application of amendments to Part 2-3 of the Act
(forfeiture on conviction of a serious offence) that are contained in this
Part. The amendments apply in relation to property covered by a
restraining order made on or after the commencement of this item, whether
the conduct constituting the offence occurred or occurs before, on, or
after that commencement.
Item 66 - Paragraph 333(1)(a)
This item amends the definition of 'conviction day' in paragraph 333(1)(a)
of the Act. Paragraph 333(1)(a) provides that 'conviction day' is the day
on which a person was convicted of the offence. Subsection 333(2) provides
that the day on which a person was convicted of the offence is taken to be
'the first day on which the court acted on the finding that the offence was
proved against the person (whether or not the court passed sentence on that
day in relation to the offence)'.
This definition reflects the common law position (see, for example,
Griffiths v R (1977) 137 CLR 293; DPP (Vic) v McCoid [1988] VR 982; Della
Patrona v DPP (Cth) (No.2) (1995) 38 NSWLR 257). However, the common law
position is complex and has created uncertainty as to the exact 'conviction
day' in certain circumstances. For example, if the court exercises
discretion not to impose a penalty, can this be interpreted to be acting on
a finding that the offence was proved? It is imperative that the
'conviction day' is a clearly defined date, as the date that property is
automatically forfeited is determined by reference to this date.
The item amends paragraph 333(1)(a) to provide that the 'conviction day' is
taken to mean the date at which the court passes sentence. This will
include circumstances where a person pleads or is found guilty, but the
court does not impose a fine, term of imprisonment or other punishment.
The item will provide certainty for persons whose property is being
forfeited, and to the CDPP in meeting its obligation to notify all relevant
persons that property is to be forfeited on a certain day.
Item 67 - Application
This item sets out the application of amendments to paragraph 333(1)(a) of
the Act, as contained in this Part. The amendments apply in relation to a
person about whom a court passes sentence on or after the commencement of
this item, whether the conduct constituting the offence concerned occurred
or occurs before, on or after the commencement.
Part 2 - Pecuniary Penalty Orders
Proceeds of Crime Act 2002
Item 68 - Subparagraph 121(4)(a)(i)
This item amends subparagraph 121(4)(a)(i) to add a reference to property
being subject to the effective control of a person. Section 121 directs a
court how to determine the value of a pecuniary penalty order.
Subparagraph 121(4)(a)(i) directs the court to consider a person's property
that is covered by a restraining order, but makes no reference to property
of another person that is under the person's effective control. This
omission can result in a court not taking into consideration the full range
of criminal benefits a person has gained.
This item inserts a reference to property being under a person's effective
control, so that a pecuniary penalty order is determined by the court
having regard to all benefits a person has derived.
Items 69 and 70 - Paragraphs 122(1)(a) and (b)
These items amend paragraphs 122(1)(a) and 122(1)(b) by removing the
references to a person's 'request or control'. These items implement
recommendation D17 of the Sherman Report.
The effect of paragraphs 122(1)(a) and 122(1)(b) (as they currently stand)
is that, for the purpose of calculating a pecuniary penalty order, a
payment that was made to a third party at the 'request or direction' of
the defendant is treated as if it was a payment made to the defendant.
However, the Sherman Report identified that, in some cases, a payment will
be made to a third party not because of anything the defendant has said or
done, but because of the way a particular scheme operates. For example, if
a person lodges a fraudulent claim for payment on behalf of a company, the
resulting payment will, as a matter of course, be made to the company and
not the person. The CDPP is therefore required to prove that the defendant
impliedly requested or directed that money or a benefit went into the hands
of a third party. This creates an unnecessary hurdle for the CDPP which is
contrary to the intention of the Act.
These amendments address this potential loophole.
Item 71 - Paragraph 124(1)(c)
This item amends paragraph 124(1)(c) by inserting a reference to 'other
unlawful activity'. Section 124 determines how a pecuniary penalty order
is to be calculated. Paragraph 124(1)(c) refers to evidence given about
the value of the person's property during or after the 'illegal activity or
other unlawful activity'. However, at the end of the paragraph, only
illegal activity is referred to. The omission of 'other unlawful activity'
appears to be a drafting error; there is no policy justification for
mentioning 'other unlawful activity' in the subparagraphs contained in
paragraph (c), but not at the end of paragraph (c).
This item corrects this unintended omission by inserting the reference to
'other unlawful activity' at the end of paragraph 124(1)(c). This means
that the full range of unlawful activity undertaken by the person can be
taken into account by the court when determining a pecuniary penalty order.
Item 72 - Paragraph 124(5)(a)
This item amends paragraph 124(5)(a) to add a reference to property being
subject to the effective control of a person. Section 124 directs a court
how to determine the value of a pecuniary penalty order. Paragraph
124(5)(a) directs the court to consider a person's property that is covered
by a restraining order, but makes no reference to property of another
person that is under the person's effective control. This omission can
result in a court not taking into consideration the full range of criminal
benefits a person has gained.
This item inserts a reference to property under a person's effective
control, so that a pecuniary penalty order is determined by the court
having regard to all benefits a person has derived.
Items 73 and 74 - Section 130 and paragraph 130(a)
These items amend section 130 to ensure that the formula for calculating
pecuniary penalty orders does not result in a person being required to
account for criminal benefits twice.
Section 130 provides that a pecuniary penalty order can be reduced by an
amount equal to the value of any property that has been forfeited (or an
application has been made for forfeiture). This is to prevent the
Commonwealth from penalising a person twice - once by forfeiting property,
and again by imposing a pecuniary penalty order. The current wording of
section 130 requires that a pecuniary penalty order be reduced by an amount
equal to the value of any property forfeited to the Commonwealth (or the
subject to a forfeiture application) which is, or was, the proceeds of the
offence to which the pecuniary penalty order relates. However, under
section 116, pecuniary penalty orders are calculated taking into account
benefits obtained from the offence and any 'unlawful activity'.
These items insert references to 'unlawful activity' in section 130 to
rectify a drafting error. This means that pecuniary penalty orders can be
reduced to take into account the value of property that has, or will be
forfeited, the proceeds of any offence and any unlawful activity.
Items 75 and 76 - Subsection 133(1) and after subsection 133(2)
These items amend section 133, which relates to the ability to vary a
pecuniary penalty order, and implement Recommendation D19 of the Sherman
Report.
Section 130 provides that a pecuniary penalty order must be reduced by an
amount equal to the value of any property forfeited to the Commonwealth, or
subject to a forfeiture application. However, if, after forfeiture,
property is excluded or recovered or a person is compensated for a portion
of the property that was not tainted with the proceeds of crime, there is
currently no ability under section 133 to vary the pecuniary penalty order
to take account of this. This means that a person will not account for the
full value of their offences, because the pecuniary penalty order would
have been reduced to account for 'forfeited' property that a person does
not, in the end, actually forfeit.
These items provide that the amount of a pecuniary penalty order may be
increased if a property has, or will, be forfeited, and one of the
following orders has been made:
. an order to exclude an interest in property from forfeiture,
. an order directing the Commonwealth to pay an amount of compensation to a
person, or
. an order to recover an interest in the property.
The court determines the amount of the increase to the pecuniary penalty
order, taking into account:
. the value of the interest at the time that the exclusion or recovery or
was made
. in the case of compensation, the amount the Commonwealth paid in
compensation to the person, and
. any other matter the court considers relevant.
Item 77 - Application
This item sets out the application of amendments by this Part to Division 2
of Part 2-4 of the Act (pecuniary penalty order amounts). The amendments
apply in relation to pecuniary penalty orders applied for on or after the
commencement of this item, whether the conduct constituting the offence
concerned occurred or occurs before, on or after that commencement.
Item 78 - At the end of section 134
This item inserts new subsection 134(6), which empowers a court to hear an
application of the CDPP for a pecuniary penalty order, outside of the time
limits in section 134 if it is in the interests of justice to do so.
Section 134 currently provides time limits in which applications for
pecuniary penalty orders must be made. However, there are certain
circumstances in which these time limits can be contrary to the intention
of the Act.
If property is forfeited from a person and, at the time of forfeiture, the
CDPP believes that the entire property was, or was obtained with, the
proceeds of crime, the CDPP will not seek a pecuniary penalty order (as to
do so would effectively punish the person twice). However, if that
property, or a portion of that property, is later excluded from forfeiture,
the CDPP might not be able to seek a pecuniary penalty order if the
applicable time limits in subsections 134(2) and (3) have expired.
By way of example, assume a person defrauds the Commonwealth of $1 million,
and owns a house worth $1 million. Following an investigation, it appears
that the house was purchased using the proceeds of the fraud, so the house
is restrained and then forfeited. Subsequently, another person
demonstrates that they contributed $250,000 in legitimate funds to purchase
the house, and is therefore entitled to be compensated for this amount.
The person who committed the offence has therefore only forfeited 75% of
the value of the offence. If the CDPP was aware of this at the time of
restraint, a pecuniary penalty order would have been issued for the
$250,000. However, if the CDPP became aware after forfeiture, it is
prevented by section 134 from obtaining a pecuniary penalty order.
This item amends section 134 to provide that the CDPP may apply to the
court for a pecuniary penalty order despite the time limits in subsections
134(2) and (3), if the court is satisfied that it is in the interests of
justice to allow the application. This item ensures that persons are
adequately held to account for the full amount of the benefits they have
unlawfully derived.
Items 79 and 80 - Subsections 136(2), (3) and (4)
These items implement Recommendation D20 of the Sherman Report by amending
section 136 so that the CDPP must provide a defendant with any affidavit
that will be relied upon in a pecuniary penalty order hearing, within a
reasonable time before the court conducts a hearing.
Section 136 currently provides that the CDPP must give a person written
notice of the application for the pecuniary penalty order and any
supporting affidavit. In practice, however, applications for pecuniary
penalty orders are often made at the time a restraining order is sought or
shortly thereafter (to ensure that the restraining order does not lapse).
This makes it difficult for the CDPP to provide a person with notice of an
application and supporting affidavits, as at an early stage of proceedings,
the information stated in the affidavits might not yet be available.
To better reflect the practical operation of the Act, these items amend
section 136 to provide that the CDPP must give a copy of any affidavit
supporting an application for a pecuniary penalty order to the affected
person within a reasonable time before the hearing of the application.
This item also ensures fairness to the person affected by the application,
so that they can receive complete information within a reasonable time
before the hearing of the application.
Item 81 - Application
This item sets out the application of amendments made by this Part to
Division 3 of Part 2-4 of the Act (how pecuniary penalty orders are
obtained). The amendments apply in relation to applications made for
pecuniary penalty orders on or after the commencement of this item, whether
the conduct constituting the offence concerned occurred or occurs before,
on or after the commencement.
Items 82, 83, 84, 85 - Subsections 146(1), (2) and (3)
These items implement Recommendation D21 of the Sherman Report by amending
section 146 to allow a court to vary a pecuniary penalty order where the
order was made on the basis of a number of convictions, and one conviction
was subsequently quashed.
Currently, section 146 provides that a pecuniary penalty order made in
relation to a person's conviction of a serious offence is discharged if
that conviction is quashed (even if the pecuniary penalty order relates to
a person's conviction of other offences that have not been quashed) and the
CDPP does not apply to have the pecuniary penalty order confirmed within 14
days of the quashing of the conviction. If the CDPP does apply to have the
order confirmed, under section 149 it is required to prove the quashed
offence to a civil standard (that is, the balance of probabilities).
The effect of the current subsection 146(1) is that if a pecuniary penalty
order relates only to indictable offences (or a serious offence is not
confirmed under section 149), the entire pecuniary penalty order will be
discharged, even if the quashed offence only accounts for a small part of
the total benefit.
For example, assume that a person is convicted of ten fraud offences, each
involving a benefit of $5,000. As a result, the CDPP obtains a pecuniary
penalty order of $50,000. If a person appeals one of those ten convictions
and has their conviction set aside or quashed, the entire pecuniary penalty
would be discharged. This occurs even though convictions in relation to
$45,000 worth of fraud still stand.
Item 82 amends subsection 146(1) to provide that if a conviction is
quashed, a pecuniary penalty is discharged unless the CDPP applies to the
court within 14 days to have the pecuniary order confirmed or varied. Item
91 inserts a new section 149A which sets out the procedure for varying a
pecuniary penalty order.
Items 86 - Section 147 (including the note)
This item is a consequential amendment arising from the introduction of new
section 149A (Item 91). Section 147 currently provides that the CDPP must
give written notice of an application for confirmation of a pecuniary
penalty order. This amendment includes the words 'or variation' so that
the CDPP is now required to give written notice of an application for
confirmation or variation of a pecuniary penalty order. This item also
amends the heading to section 147 by inserting 'or variation' after
'confirmation'. This ensures that the heading reflects that the provision
relates to notice of an application for confirmation or variation of a
pecuniary penalty order.
Items 87 - Subsection 148(1)
This item is a consequential amendment arising from the introduction of new
section 149A (Item 91). Subsection 148(1) currently provides that a person
may appear and adduce evidence at the hearing of the application for
confirmation of the order. This item inserts the words 'or variation' so
that a person may appear and adduce evidence at the hearing of the
application for confirmation or variation of the order.
Items 88, 89 and 90 - Subparagraphs 148(2)(a)(i) and (ii) and
paragraph 148(2)(a)
These amendments clarify the operation of section 148, where a pecuniary
penalty is made in relation to multiple offences. Currently, section 148
could be narrowly interpreted to mean that the court could only have regard
to the transcript of a single offence. These amendments clarify that in
determining an application to confirm or vary a pecuniary penalty order,
the court may have regard to transcripts relating to any of the offences to
which the pecuniary penalty relates.
Item 91 - After section 149
This item inserts new section 149A, which enables the court to vary a
pecuniary penalty order. The section provides that the court may vary a
pecuniary penalty order by reducing the pecuniary amount if it is satisfied
that the order relates to more than one offence, and one or more of those
offences has not been quashed. The section empowers a court to determine
the amount of variation to the pecuniary penalty order, having regard to:
. transcripts and evidence of the offence(s) for which the person was
convicted
. transcripts and evidence given in proceedings relating to the application
for the pecuniary penalty order, or to vary the amount of the order, and
. any other matter the court considers relevant.
The power to vary a pecuniary penalty order is necessary to ensure that a
pecuniary penalty order can still be enforced against a person who has some
(but not all) of their convictions quashed.
Item 92 and 93 - Subsections 150(1) and (2)
These items are consequential amendments arising from the introduction of
new section 149A (Item 91). Section 150 provides that, if the court
confirms a pecuniary penalty order, the order is taken not to be affected
by the quashing of the person's conviction of the offence. It also
provides that if a court decides not to confirm a pecuniary penalty order,
the order is discharged.
These items insert references to variation of a pecuniary penalty order
under section 149A, so that section 150 now provides that, if the court
confirms the pecuniary penalty order under section 149, or varies the order
under section 149A, the order is taken not to be affected by the quashing
of the person's conviction of the offence. It also provides that if a
court decides not to confirm or vary a pecuniary penalty order, the order
is discharged.
Item 94 - Application
This item sets out the application of amendments made by this Part to
Division 5 of Part 2-4 of the Act (the effect of pecuniary penalty orders
on convictions being quashed). The amendments apply in relation to a
conviction that is quashed on or after the commencement of this item,
whether conduct constituting the offence concerned occurred or occurs
before, on or after that commencement.
Items 95, 96 and 97 - Paragraphs 335(6)(a), (b) and subsection 335(6)
These items implement Recommendation D31 of the Sherman Report by granting
magistrates jurisdiction to determine conviction-based pecuniary penalty
and forfeiture orders, if the conviction is dealt with summarily by a
magistrate of the same court.
Subsection 335(6) provides that magistrates may exercise 'proceeds
jurisdiction (that is, the jurisdiction to make certain orders). However,
the present drafting of subsection 335(6) implies that only the magistrate
who convicted the person has the appropriate jurisdiction. This is an
unintended consequence, which could create unnecessary delay for both
parties and magistrates in trying to secure court time before the actual
magistrate who convicted the person. Accordingly, Items 96 and 97 amend
subsection 335(6) to clarify that any magistrate belonging to the same
court as the convicting magistrate may determine conviction-based pecuniary
penalty and forfeiture orders.
Item 95 amends paragraph 336(6)(a) to extend the jurisdiction of
magistrates to apply to pecuniary penalty orders made under subparagraph
116(1)(b)(i). This amendment is necessary because, presently, after a
magistrate convicts a person, there is no ability for the magistrate to
make a pecuniary penalty order in relation to that person. The CDPP is
therefore forced to apply to a superior court to commence fresh proceedings
to apply for a pecuniary penalty order. This amendment will benefit both
the CDPP and the person to whom the pecuniary penalty order relates, as it
enables an application to be heard and decided quickly and efficiently and
without any additional costs incurred by bringing the application to a
higher court.
Item 98 - Application
This item sets out the application of amendments made by this Part to
subsection 335(6) of the Act. The amendments apply in relation to a person
convicted before a magistrate on or after the commencement of this item,
whether the conduct constituting the offence occurred or occurs before, on
or after the commencement.
Part 3 - Examinations
Proceeds of Crime Act 2002
Item 99 - Paragraph 180(1)(b)
This item amends the wording of paragraph 180(1)(b) to omit the reference
to 'a person whom the restraining order states to be a suspect...' and
replace it with 'a person who is a suspect in relation to the restraining
order'. This is because, in practice, restraining orders do not name
suspects. Rather, suspects are named in the affidavit supporting the
application for a restraining order. This amendment implements
Recommendation D22(a) of the Sherman Report.
Item 100 - Subsection 180(1)
This item inserts an asterisk before 'affairs' in subsection 180(1), to
indicate that the term has now been defined in the Dictionary to the Act
contained in section 338.
Item 101 - Subsection 180(1)
This item removes the reference to 'the nature and location of any
property' from subsection 180(1). Because the term 'affairs' is now
defined in the Dictionary to the Act in section 338, there is no longer a
need to refer to what may be included in the definition of 'affairs' in the
subsection.
Item 102 - Application
This item sets out the application of amendments made by this Part to
section 180 of the Act. The amendments apply in relation to restraining
orders applied for on or after the commencement of this item, whether the
conduct constituting the offence concerned occurred or occurs before, on or
after the commencement.
Item 103 - After section 180
This item inserts new sections 180A - 180E after section 180, to permit the
court to make an examination order in certain circumstances where a
restraining order is not in place. These circumstances are where:
. an application is made to have property excluded from a forfeiture order
. an application is made for compensation for the proportion of property
that did not involve proceeds of an offence, after the property has been
forfeited
. an application is made to recover the interest in forfeited property that
is neither the proceeds of unlawful activity nor an instrument of
unlawful activity, and
. a confiscation order has been made but not satisfied.
This item gives effect to Recommendation D22(b) of the Sherman Report and
reflects the position in Western Australia, the Northern Territory and the
Australian Capital Territory, that an examination order is not dependent on
a restraining order being in force. The item enables identification of
property for enforcement action and to examine whether it is appropriate to
provide compensation or permit recovery of property, without the
requirement that a restraining order be in place.
180A Examination orders relating to applications for exclusion from
forfeiture
Section 180A enables the court to which an application is made for an order
to exclude property from forfeiture under sections 73 or 94, to make an
order for the examination of any person, including a person who has or
claims an interest in property (paragraph 180A(1)(a)) or the spouse or de
facto partner of a person who has or claims an interest in the property
(paragraph 180A(1)(b)). It may also include persons such as lawyers,
accountants, bankers and other advisers of the persons stated in paragraphs
180A(1)(a) and (b). The examination is in relation to the 'affairs' of the
persons stated in paragraphs 180A(1)(a) and (b). 'Affairs' is defined in
section 338 of the Act.
The examination order ceases to have effect when the application for an
order to exclude property from forfeiture is either withdrawn or decided
upon by the court.
The insertion of section 180A overcomes an anomaly that currently exists in
the Act. Under section 76, an application for an order to exclude property
from forfeiture must not be heard until the CDPP has had a reasonable
opportunity to examine. However, under section 180, an examination order
cannot occur unless a restraining order is in place, and a restraining
order ceases to have effect when a forfeiture order is made. Thus, the
CDPP is unable to obtain an examination order after forfeiture, but is also
unable to participate in the hearing of an application to exclude property
from forfeiture until it has had a reasonable opportunity to examine. This
amendment ensures that the CDPP has had the opportunity to examine relevant
persons before an exclusion order is made.
180B Examination orders relating to applications for compensation
Section 180B enables the court to which an application for an order for
compensation is made under sections 77 or 94A, in relation to property that
has or may be forfeited, to make an order for the examination of any
person, including a person who has or claims an interest in property
(paragraph 180B(1)(a)) or the spouse or de facto partner of a person who
has or claims an interest in the property (paragraph 180B(1)(b)). It may
also include persons such as lawyers, accountants, bankers and other
advisers of the persons stated in paragraphs 180B(1)(a) and (b). The
examination is in relation to the 'affairs' of the persons stated in
paragraphs 180B(1)(a) and (b). 'Affairs' is defined in section 338 of the
Act.
The examination order ceases to have effect when the application for
compensation is either withdrawn or decided upon by the court.
This provision will address an anomaly in the Act. Currently, if a person
applies for compensation before property is forfeited (that is, when a
restraining order is still in place), the CDPP can apply for an examination
order. However, if a person applies for compensation after property has
been forfeited, a restraining order is no longer in place, so there is no
basis on which to obtain an examination order. This section will enable
the CDPP to apply for examinations in relation to application for
compensation when a restraining order is not in place. These examinations
are necessary to determine the circumstances giving rise to an application
for compensation.
180C Examination orders relating to applications under section 102
Section 180C enables the court to which an application is made under
section 104 to recover forfeited property under section 102, to make an
order for the examination of any person, including a person who has or
claims an interest in property (paragraph 180C(1)(a)) or the spouse or de
facto partner of a person who has or claims an interest in the property
(paragraph 180C(1)(b)). It may also include persons such as lawyers,
accountants, bankers and other advisers of the persons stated in paragraphs
180C(1)(a) and (b). The examination is in relation to the 'affairs' of the
persons stated in paragraphs 180C(1)(a) and (b). 'Affairs' is defined in
section 338 of the Act.
The examination order ceases to have effect when the application to recover
forfeited property is either withdrawn or decided upon by the court.
This provision will address an anomaly in the Act. Currently, if a person
applies to recover property before it is forfeited (that is, when a
restraining order is still in place), the CDPP can apply for an examination
order. However, if a person applies to recover property after it has been
forfeited, a restraining order is no longer in place, so there is no basis
on which to obtain an examination order. This section will enable the CDPP
to apply for examinations in relation to recovery applications when a
restraining order is not in place. These examinations are necessary to
determine the circumstances giving rise to an application for recovery.
180D Examination orders relating to enforcement of confiscation orders
Where a confiscation order has been made but not satisfied, the court that
made the confiscation order may, under section 180D, make an order for the
examination of any person, including a person against whom the confiscation
order was made (paragraph 180D(1)(a)) or the spouse or de facto partner of
a person against whom the confiscation order was made (paragraph
180D(1)(b)). It may also include persons such as lawyers, accountants,
bankers and other advisers of the persons stated in paragraphs 180D(1)(a)
and (b). The examination is in relation to the 'affairs' of the persons
stated in paragraphs 180D(1)(a) and (b). 'Affairs' is defined in section
338 of the Act.
The examination order ceases to have effect when the confiscation order is
finally determined, withdrawn or otherwise disposed of.
This provision will assist to ensure that confiscation orders made under
the Act are given effect. It will enable the CDPP to locate any additional
property which has been forfeited, or on which it is necessary to rely in
order to satisfy a pecuniary penalty order or literary proceeds order.
180E Examination orders relating to restraining orders revoked under
section 44
Section 180E enables a court that revoked a restraining order under section
44 to make an order for the examination of any person, including a person
whose property is, or a person who has an interest in property that is, the
subject of the restraining order (paragraph 180E(1)(a)) or the spouse or de
facto partner of a person referred to in paragraph 180E(1)(a) (paragraph
180E(1)(b)). It may also include persons such as lawyers, accountants,
bankers and other advisers of the persons stated in paragraphs 180E(1)(a)
and (b). The examination is in relation to the 'affairs' of the persons
stated in paragraphs 180E(1)(a) and (b). 'Affairs' is defined in section
338 of the Act.
The examination order ceases to have effect when the restraining order
would have ceased to have had affect, assuming it had not been revoked
under section 44.
This provision will address an anomaly in the Act that is created by
section 44. Section 44 provides that, if a person provides security or an
undertaking in relation to restrained property, then the restraining order
is set aside. However, the ability to conduct examinations is currently
tied to the existence of a restraining order. Without a restraining order
in place, there is no ability to conduct an examination under the Act to
determine relevant information about the nature and location of property
which may be proceeds of crime.
This provision will enable applications to be made for examinations despite
the revocation of a restraining order under section 44.
Item 104 - Application
This item sets out the application of sections 180A and 180B (as inserted
by Item 103). The application of sections 180A and 180B is determined by
reference to either the date of application for a restraining order, or the
date of application for a forfeiture order.
Where the application for exclusion or compensation (under sections 73 or
77) relates to a forfeiture order that was or would be made under sections
47 or 49 of the Act, the date of application for the restraining order
(upon which the forfeiture order relies) is the relevant date for
determining the application of sections 180A and 180B. The restraining
order must be applied for on or after the commencement of this item for
sections 180A and 180B to apply. This applies regardless of whether the
conduct constituting the offence (which led to the commencement of
confiscation action) occurred or occurs before, on or after the
commencement.
Where the application for exclusion or compensation (under sections 73 or
77) relates to a forfeiture order that was or would be made under section
48 of the Act, the date of application for the forfeiture order is the
relevant date for determining the application of sections 180A and 180B.
The forfeiture order must be applied for on or after the commencement of
this item for sections 180A and 180B to apply. This applies regardless of
whether the conduct constituting the offence (which led to the commencement
of confiscation action) occurred or occurs before, on or after the
commencement.
Where the application is for exclusion or compensation (under sections 94
or 94A), the date of application for the restraining order is the relevant
date for determining the application of sections 180A and 180B. The
restraining order must be applied for on or after the commencement of this
item, regardless of whether the conduct constituting the offence occurred
or occurs before, on or after the commencement.
Sections 180C applies in relation to an application for recovery of
property after forfeiture, where that forfeiture is based on a restraining
order that is applied for on or after the commencement of this item,
regardless of whether the conduct constituting the offence occurred or
occurs before, on or after the commencement.
Section 180E applies in relation to restraining orders applied for on or
after the commencement of this item, regardless of whether the conduct
constituting the offence occurred or occurs before, on or after the
commencement.
Section 180D applies in relation to confiscation orders applied for on or
after the commencement of this item, whether the conduct constituting the
offence concerned occurred or occurs before, on or after the commencement.
Item 105 - Subsection 181(1)
This item inserts an asterisk before 'affairs' in subsection 181(1), to
indicate that the term has now been defined in the Dictionary to the Act
contained in section 338.
Item 106 - Subsection 181(1)
This item removes the reference to 'the nature and location of any
property' from subsection 181(1). Because the term 'affairs' is now being
defined in the Dictionary to the Act in section 338, there is no longer a
need to refer to what may be included in the definition of 'affairs' in the
subsection.
Item 107 - Application
This item sets out the application of amendments to section 181 made by
this Part. Section 181 applies in relation to convictions quashed on or
after the commencement of this item, whether the conduct constituting the
offence concerned occurred or occurs before, on or after that commencement.
Item 108 - Section 182
This item inserts '(1)' at the beginning of the section. It is a
consequential amendment arising from the insertion of new subsection
182(2).
Item 109 - At the end of section 182
This item inserts new subsection 182(2), which requires a court to consider
an application made by the CDPP for an examination order ex parte, if the
CDPP requests that the court do so. This item implements Recommendation
D22(d) of the Sherman Report. The Sherman Report noted the necessity to
examine persons as soon as possible after restraining orders are obtained
in order to preserve property and progress confiscation proceedings.
Expressly allowing the CDPP to apply for examination orders ex parte will
enable the CDPP to make such an application at the same time as an
application for a restraining order. This will reduce court burden and
assist authorised examiners to conduct examinations early to ensure that
all relevant property is identified quickly and, if appropriate, restrained
early in an investigation.
Presently, the sole requirement for the DPP to satisfy in applying for an
examination order under section 180 is that a restraining order is in
force. Thus, there currently exists an implied ability for the DPP to
apply for an examination order ex parte. This item expressly confirms the
ability of the court to consider an application for an examination order ex
parte.
Item 110 - Subsection 187(4)
This item inserts an asterisk before 'affairs' in subsection 187(4), to
indicate that the term has now been defined in the Dictionary to the Act
contained in section 338.
Item 111 - After paragraph 187(4)(a)
This item inserts additional circumstances in which an examination must not
relate to a person's affairs. The item states that an examination must not
relate to a person's affairs if the person is no longer a person whose
affairs can be subject to examination under sections 180, 181, 180A, 180B,
180C, 180D or 180E. This item is consequential on the inclusion of new
sections 180A, 180B, 180C, 180D and 180E.
Item 112 - Paragraph 187(5)(b)
This item is a consequential amendment. It includes references to new
sections 180A, 180B, 180C, 180D and 180E, it marks that the term 'affairs'
is now defined in the Dictionary and it omits the reference to 'the nature
and location of any property', as this is now included in the definition of
'affairs'. The effect of the paragraph is that an examined person may be
required by an approved examiner to answer a question that is relevant to
the affairs of persons in sections 180, 180A, 180B, 180C, 180D, 180E and
181.
Item 113 - Application
This item sets out the application of amendments to sections 182 and 187.
These sections apply in relation to an examination order applied for on or
after the commencement of this item.
Item 114 - Section 195 (penalty)
This item increases the penalty for the offence of failing to attend an
examination from six months and/or 30 penalty units, to two years and/or
120 penalty units, and implements Recommendation D24 of the Sherman Report.
For example, the penalty for failing to attend an examination under the
Australian Securities and Investments Commission Act 2001 is two years
imprisonment and/or 100 penalty units. The increase reflects the
seriousness of the offence and is more likely to act as a deterrent for
offenders who may be tempted to avoid examination questions in an attempt
to protect illicit wealth.
Item 115 - Subsection 196(1) (penalty)
This item increases the penalty for offences relating to appearance at an
examination from six months months and/or 30 penalty units, to two years
and/or 120 penalty units. These offences are:
. refusing or failing to be sworn or affirmed
. refusing or failing to answer a question that is required to be answered
. refusing or failing to produce a document specified in the examination
notice, or
. leaving the examination before being excused by the approved examiner.
This item implements Recommendation D24 of the Sherman Report. The
increase ensures that the offences are commensurate with other equivalent
Commonwealth offences. For example, the penalty for failing to attend an
examination under the Australian Securities and Investments Commission Act
2001 (ASIC Act) is two years imprisonment and/or 100 penalty units. The
increase reflects the seriousness of the offences and is more likely to act
as a deterrent for offenders who may be tempted to avoid examination
questions in an attempt to protect illicit wealth.
Item 116 - After section 197
This item introduces a new offence of giving false or misleading
information at an examination. A person commits this offence if they
attend an examination and give an answer or produce a document and the
answer or document is either false or misleading or omits a matter or
thing, without which the answer or document is false or misleading. The
penalty of this offence is, consistent with the increased penalties for
other examination offences, imprisonment of two years and/or 120 penalty
units.
This item implements Recommendation D25 of the Sherman Report. The Report
considered that, while the Criminal Code 1995 (Cth) (Criminal Code)
offences for using false or misleading information or documents may be used
in addition to the specified offences in Division 4 of the Act, the
penalties attached to these offences (12 months imprisonment) were in a
lower range than equivalent provisions in State and Territory confiscation
legislation and other Commonwealth legislation (such as the ASIC Act
referred to above). The Sherman Report recognised that the Criminal Code
offences were very general and intended to be used in a wide variety of
circumstances, and recommended that, commensurate with the approach in the
ASIC Act, a new offence should be created to address the particular
circumstance of an examination order.
Item 117 - Subparagraph 269(a)(ii)
This item inserts an asterisk before 'affairs' in subparagraph 269(a)(ii),
to indicate that the term has now been defined in the Dictionary to the Act
contained in section 338.
Item 118 - Section 338
This item inserts a new definition of 'affairs' in the Dictionary in
section 338 of the Act, to clarify its meaning. The term is used in the
context of conducting examinations to elicit information about a person's
property.
This amendment became necessary after diverging views in the interpretation
of the term arose in judgments in NSW and QLD (legislation in those States
contain provisions closely worded to section 180 of the Act). In NSW, Greg
James J held in NSWCC v Murchie (2000) 49 NSWLR 465, that the term
'affairs' encompassed matters which are relevant to the existence of
serious crime related activity or illegal activity by a person to whom a
restraining order relates. In other words, 'affairs' can encompass the
asking of questions solely relevant to the commission of criminal conduct
by a person, if that conduct was potentially relevant to a confiscation
outcome in the matter.
By contrast, in QLD, in Meredith v State of Queensland [2007] 1 Qd R 334,
the Queensland Court of Appeal held that there must be at least an arguable
connection between the activity of a suspect and the property of the
suspect to support the proposed line of questioning (in other words,
'affairs' meant 'financial affairs').
The new definition of 'affairs' is intended to pick up the interpretation
in Murchie, by providing that the affairs of a person includes, but is not
limited to, the nature and location of the person's property (or property
in which the person has an interest), and any of the person's activities
that are, or may be, relevant to whether or not the person has engaged in
unlawful activity of a kind relevant to the making of an order under the
Act.
Item 119 - Section 338 (definition of examination order)
This item is a consequential amendment to insert references to new sections
180A, 180B, 180C, 180D and 180E in the Dictionary definition of
'examination order'.
Part 4 - Notices
Proceeds of Crime Act 2002
Item 120 - After paragraph 202(5)(c)
This item inserts new paragraph 202(5)(ca) in subsection 202(5), which
defines the scope of a 'property-tracking document'. It will ensure that a
document relevant to identifying, locating or quantifying property
suspected of being proceeds of an indictable offence, foreign indictable
offence or indictable offence of Commonwealth concern, or an instrument of
a serious offence, is included in the definition of 'property-tracking
document'. This item implements Recommendation D26(a) of the Sherman
Review.
The current definition of 'property-tracking document' is person-directed.
That is, it is linked to 'a person' either being convicted of, charged
with, being proposed to be charged with, or being reasonably suspected of
having committed, one of the relevant types of offences. There is no
provision covering a situation where the identity of the person who
committed the offence is not known. This means that production orders are
currently unavailable where property has been restrained or may be
restrained under section 19 of the Act (which permits restraint of property
without reference to 'a person'). This item remedies the gap in the
definition and will allow production orders to be used where the identity
of the person is not known.
Item 121 - Paragraph 202(5)(d)
This item is a consequential amendment. It includes a reference to new
paragraph 202(5)(ca) in paragraph 202(5)(d), so that that paragraph now
defines a 'property-tracking document' to include a document relevant to
identifying or locating any document necessary for the transfer of property
referred to in paragraph (c) or (ca).
Item 122 - Paragraph 202(5)(f)
This item is a consequential amendment. It includes a reference to new
paragraph 202(5)(ca) in paragraph 202(5)(f), so that that paragraph now
defines a 'property-tracking document' to include a document that would
assist in the reading or interpretation of a document referred to in
paragraph (a), (b), (c), (ca), (d) or (e).
Item 123 - Subsection 202(6)
This item is a consequential amendment. It includes a reference to new
paragraph 202(5)(ca) in subsection 202(6). This clarifies that, for the
purposes of subparagraph 202(5)(c)(ii) and paragraph 202(5)(ca), it is
sufficient that a document is relevant to identify, locating or quantifying
proceeds of some offence or other of a kind referred to in that paragraph
or subparagraph. It does not need to be relevant to identifying, locating
or quantifying proceeds of a particular offence.
Item 124 - Subsection 202(6)
This item is a consequential amendment. It changes the phrase 'of a kind
referred to in that subparagraph' to 'of a kind referred to in that
provision'. This is because new paragraph 202(5)(ca) is now referred to in
subsection 202(6). Thus, a reference to 'that subparagraph' is incorrect,
as there are now references to a subparagraph and a paragraph.
Item 125 - After paragraph 203(1)(c)
This item inserts new paragraph (ca) into subsection 203(1), which deals
with the contents of production orders. The new paragraph requires that
the manner and form in which documents are to be produced must be specified
in the production order.
This item implements Recommendation D26(b) of the Sherman Report. It is
designed to enable documents produced under a production order to be
received electronically. As noted in the Sherman Report, electronic
receipt of documents has the potential to be cost and time efficient,
particularly when dealing with a large number of documents.
Item 126 - Subsection 203(2)
This item repeals subsection 203(2) and replaces it with two new
subsections governing the time in which documents, the subject of a
production order, must be produced. New subsection 203(2) provides a
minimum period of 14 days after the production order is made before
documents must be produced. If a magistrate who made the production order
is satisfied that it is appropriate, the time period may be shortened to no
less than three days after the day on which the production order is made.
New subsection 203(3) provides the matters to which a magistrate must have
regard when deciding whether to specify an earlier time for production
under subsection 203(2). These are: the urgency of the situation, and any
hardship that may be caused to the person required to produce documents or
make documents available under the production order.
This provision provides for situations where there is a genuinely urgent
need for documents to be produced in less than 14 days. The specified
minimum of three days provides certainty for the person complying with the
order by setting a clear parameter for the minimum time for compliance.
Item 127 - At the end of section 211
This item inserts new subsection (3) at the end of section 211, which is a
defence to the offence of failing to comply with a production order. It
states that, if a person failed to comply with a production order only
because they did not produce the specified document or documents within the
time specified in the order, and the person took all reasonable steps to
produce the document or documents within that time, it is a defence against
the offence in subsection 211(1).
This new item provides a safeguard for those who may be required to comply
with a shortened production time under subsection 203(2).
Item 128 - Application
This item sets out the application of amendments made by this Part to Part
3-2 of the Act (production orders). The amendments apply in relation to
production orders applied for on or after the commencement of this item,
whether the conduct constituting the offence occurred or occurs before, on
or after the commencement.
Item 129 - Paragraphs 213(1)(a) and (b)
This item is a consequential amendment, resulting from the changed
definition of 'account' (which is amended to include closed accounts). The
item introduces the past tense when referring to accounts. Accordingly,
paragraph 213(1)(a) is amended to refer to an account that 'is or was' held
by a specified person, and paragraph 213(1)(b) is amended to refer to
whether a person 'is or was' a signatory to an account.
Item 130 - Paragraph 213(1)(d)
This item is a consequential amendment, resulting from the changed
definition of 'account' (which is amended to include closed accounts). The
item removes 'such', so that paragraph 213(d) is no longer linked to
paragraph 213(c) (which refers to a current account). This has the effect
of removing the inference that the account referred to in paragraph 213(d)
is an open account.
Item 131 - Paragraph 213(1)(e)
This item is a consequential amendment, resulting from the changed
definition of 'account' (which is amended to include closed accounts). The
item introduces the past tense when referring to accounts. Accordingly,
paragraph (1)(e) is amended to refer to persons who 'hold or held'
accounts.
Item 132 - After paragraph 213(1)(e)
This item introduces two new situations in which an authorised officer may
provide written notice to a financial institution. These are: to determine
whether a stored value card was issued to a person by a financial
institution, and to obtain details of transactions made using a stored
value card over a specified period not exceeding six months. A stored
value card is defined in section 338 of the Act. Enabling authorised
officers to obtain information about stored value cards will assist in
identifying proceeds of crime and ensuring these funds are not dispersed.
Item 133 - At the end of subsection 213(3)
This item implements Recommendation 4 of the Sherman Report by expanding
the list of officers who may give notices to financial institutions under
section 213. Section 213 notices require financial institutions to provide
information about accounts held by them to authorised officers. The
expanded list names the Commissioner of Taxation, the Chief Executive
Officer of Customs and the Chairperson of the Australian Securities and
Investments Commission as officers who may give a notice to a financial
institution.
Including these officers in the list of authorised officers is necessary
given the importance of section 213 notices as effective information
gathering tools under the Act. The limited number of authorised officers
has meant that officers from named agencies have had to issue notices on
behalf of other agencies, creating critical delays in identifying property
that should be restrained. This amendment will assist in overcoming the
delays currently caused by the limited number of authorised officers. The
amendment does not allow the power to issue a notice to be delegated for
the new specified officers, which safeguards against possible misuse of the
power.
Item 134 - Section 214
This item inserts '(1)' at the beginning of the section. It is a
consequential amendment arising from the insertion of new subsection
214(2).
Item 135 - Paragraph 214(d)
This item amends paragraph 214(1)(d) so that an authorised officer who
issues a notice requiring a financial institution to provide information
must have regard to the record-keeping capabilities of the financial
institution, to the extent that those record keeping capabilities are known
to the officer. The intent of this provision is to place a positive
obligation on the authorised officer to consider whether the financial
institution is reasonably able to comply with the request being made. This
provision is included because the time in which information or documents
must be produced has been amended to allow for production in less than 14
days (but no less than three days) after giving the notice.
Item 136 - Paragraph 214(e)
This item replaces paragraph (e), which provides that information must be
provided by a financial institution to the authorised officer within 14
days of the notice, with a new paragraph which enables provision of
information in less than 14 days (but not less than three days) if the
authorised officer issuing the notice believes that a lesser timeframe is
appropriate. In forming the belief that it is appropriate to specify a
lesser timeframe, the authorised officer must have regard to the matters in
new subsection 214(2). Receipt of information from financial institutions
in a shortened timeframe will, in appropriate situations, ensure that
property obtained with the proceeds of crime that is capable of restraint
is quickly identified before it can be dissipated.
Item 137 - At the end of section 214
This item inserts new subsection 214(2), which specifies the matters to
which an authorised officer must have regard in deciding whether to require
production of information under a notice to a financial institution in less
than 14 days. The authorised officer must have regard to the urgency of
the situation and any hardship that may be caused by the financial
institution by the reduced timeframe. Receipt of information from
financial institutions in a shortened timeframe will, in appropriate
situations, ensure that property obtained with the proceeds of crime that
is capable of restraint is quickly identified before it can be dissipated.
This item sets the parameters for the use of shortened timeframes and
ensures that adequate consideration is given by authorised officers in
determining that a shorter time frame is necessary. The item is intended
for use in genuinely urgent situations only. It does not exist to be used
merely for matters of convenience for the authorised officer. For example,
if the investigating agency has been lax in drafting and giving a notice to
a financial institution, it would not be sufficient justification to reduce
the time in which a financial institution has to comply with the notice.
Item 138 - Section 218
This item inserts '(1)' at the beginning of the section. It is a
consequential amendment arising from the insertion of new subsection
218(2).
Item 139 - At the end of section 218
This item inserts new subsection 218(2), which provides a defence to the
offence of failing to comply with a notice given under section 213. If a
person from a financial institution does not produce the required
information or document within the specified period, and that person took
all reasonable steps to provide the information, then, provided the
information is produced as soon as practicable, the defence is made out.
This item is a safeguard to ensure that persons who are genuinely unable to
provide the required information within the specified time are not exposed
to a penalty.
Item 140 - Application
This item sets out the application of amendments made by this Part to Part
3-3 of the Act (notices to financial institutions). The amendments apply
in relation to a notice given under section 213 of the Act on or after the
commencement of this item, whether the conduct constituting the offence
concerned occurred or occurs before, on or after that commencement.
Item 141 - Subsection 219(1)
This item expands the subject matter about which a monitoring order may be
made. Currently, monitoring orders may only be made in respect of
transactions conducted through an account. This item expands the provision
to enable monitoring orders to be made with respect to transactions made by
using a stored value card. 'Stored value card' is defined in the
Dictionary to the Act in section 338; essentially, it is cash held in
another form. This provision enables a judge to make an order that a
financial institution provide information about transactions made using a
stored value card that was issued to a person by a financial institution.
This item closes a gap that currently exists in the information-gathering
powers under the Act. Information-gathering powers, such as monitoring
orders and notices to financial institutions, are currently only
exercisable with respect to 'accounts' held by financial institutions.
Because a stored value card is different to an 'account', there was no way
in which to obtain information on transactions made using these cards. Law
enforcement agencies have identified that products falling within the
definition of 'stored value card' have been known to be used to launder
money from the proceeds of narcotics and pay drug couriers.
Item 142 - Paragraph 219(2)(a)
This is a consequential amendment arising from the introduction of the term
'stored value card'. The subsection provides the grounds on which a judge
must be reasonably satisfied before making a monitoring order. This item
amends the phrase in paragraph 219(2)(a) from 'the person in respect of
whose account...' to 'the person in respect of whose account or card...'.
Item 143 - Paragraph 219(2)(b)
This is a consequential amendment arising from the introduction of the term
'stored value card'. Subsection 219(2) provides the grounds on which a
judge must be reasonably satisfied before making a monitoring order. This
item amends the phrase in paragraph 219(2)(b) from 'the account is being
used...' to 'the account or card is being used...'.
Item 144 - Subsection 219(3)
This is a consequential amendment arising from the introduction of the term
'stored value card'. Subsection 219(3) provides that, if an account is
being used to commit a money laundering offence, it does not matter whether
the person holding that account is involved in the offence. This
subsection has been amended to refer to an account or stored value card.
Item 145 - Paragraph 220(1)(a)
This is a consequential amendment arising from the introduction of the term
'stored value card'. It amends paragraph 220(1)(a), which requires that
the name in which an account is believed to be held must be specified in a
monitoring order. The paragraph now requires that the name in which an
account is believed to be held, or the name of the person to whom the
stored value card was issued, must be specified in the monitoring order.
Item 146 - Application
This item sets out the application of amendments made by this Part to Part
3-4 of the Act. The amendments apply in relation to monitoring orders
applied for on or after the commencement of this item, whether the conduct
constituting the offence concerned occurred or occurs before, on or after
that commencement.
Item 147 - Section 338 (definition of account)
This item amends the definition of 'account' in Dictionary to the Act,
contained in section 338. The new definition of 'account' is modelled on
the definition in the Anti-Money Laundering and Counter-Terrorism Financing
Act 2006 (AML-CTF Act), and includes credit card accounts, loan accounts,
trust account and closed accounts. The widened definition will enable
investigating agencies to exercise greater information-gathering powers.
Item 148 - Section 338
This item inserts the definition of 'stored value card' in the Dictionary
to the Act, contained in section 338. The definition is adopted from the
AML-CTF Act. It is intended to cover instances where cash is held, not in
an account, but in some other form. Stored value cards may be loaded with
purchased credit, to be redeemed at a place that honours the card. The
amendments will allow information to be obtained from E-Merchants who
market gift cards to merchants such as Australia Post, Coles Myer,
Woolworths and Travelocity.
Part 5 - Ancillary Orders
Proceeds of Crime Act 2002
Item 149 - After paragraph 39(1)(c)
This item implements Recommendation D7(b) of the Sherman Report by
inserting new paragraph 39(1)(ca) to correct an ambiguity in paragraph
39(1)(d). Paragraph 39(1)(d) currently empowers a court to make an order
directing the owner of restrained property to give a sworn statement
setting out particulars of, or dealing with, 'the property'. On a narrow
reading of this provision, it could be argued that a sworn statement need
only be in relation to the restrained property, and not other property
owned by the person. This argument was made (but ultimately not
adjudicated on) in DPP v Loades [2004] SADC 158, and on appeal at [2005]
SASC 227.
To put the matter beyond doubt, new paragraph 39(1)(ca) has been inserted
to empower the court to make any order directing the suspect in relation to
the restrained property to give a sworn statement setting out all of his or
her interest in property, and his or her liabilities. This will assist the
CDPP, particularly at an early point in the investigation, to establish the
suspect's net asset position. It is necessary to establish a person's net
assets in order to determine what property, if any, to make the subject of
a restraining order.
Items 150 and 151 - Paragraph 39(1)(d)
These items implement Recommendation D7(a) of the Sherman Report by
inserting references to a 'previous owner of property' in paragraph
39(1)(d). Paragraph 39(1)(d) currently provides that the court may make an
order directing the owner of restrained property to give a sworn statement
setting out particulars of, and dealings with, the property. The CDPP has
identified that, in order to avoid potential confiscation action under the
Act, suspects will sometimes divest themselves of property to family
members or associates. This item addresses this situation by enabling the
court to direct a previous owner of property (who may be the suspect) to
give a sworn statement setting out particulars of, or dealings with, the
property.
Item 152 - After paragraph 39(1)(d)
This item builds upon Recommendation D7(a) of the Sherman Report. It
inserts new paragraph 39(1)(da), which empowers the court to direct a
person other than the owner or previous owner of property, to give a
statement within a specified period setting out particulars of, or dealings
with, the property. Like Items 150 and 151, this item will enable the CDPP
to obtain relevant information from persons who may have knowledge of
circumstances in which property has been divested to another to avoid
confiscation action. This item goes beyond Recommendation D7(a) as it is
not limited to a previous owner of the property, but applies to any other
person whom the court reasonably suspects to have information relevant to
identifying, locating or quantifying the property. For example, it could
apply to a mortgage broker or a real estate agent.
Item 153 - Paragraph 39(1)(g)
This item expands the operation of paragraph 39(1)(g), and in doing so,
implements Recommendation D7(c) of the Sherman Report. Presently,
paragraph 39(1)(g) enables a court to make an order requiring a person
whose property is covered by a restraining order to do anything necessary
or convenient to bring the property within the jurisdiction. This item
expands the operation of that paragraph to apply to persons who have
effective control of property covered by a restraining order.
This item will apply to, for example, persons suspected of serious criminal
activity that may hold property offshore through third party structures,
such as companies and trusts.
Item 154 - After subsection 39(3)
This item inserts new subsection 39(3A), which empowers the court to
consider applications for ancillary orders made ex parte.
This provision has been included to clarify the ambiguity between
subsections 39(3) and (4). Subsection 39(3) provides that a person who
applies for an ancillary order must give written notice of the application
to all relevant parties. However, paragraph (4)(a) suggests that an
ancillary order may be made by a court at the same time that it makes a
restraining order (which can be made ex parte under subsection 26(4) of the
Act).
In DPP v Xu [2005] NSWSC 191, the court held that applications for
ancillary orders can only ever be made following an application on notice.
In its submission to the Sherman Report, the CDPP noted several instances
in which the interpretation taken by the court will delay ancillary orders
being made, and might impede the proper operation of the Act. These are
where the DPP has to return to court for an order:
. requiring the owner of restrained property to give a sworn statement
about the particulars of, and their dealings with, the property
. about the manner in which the Official Trustee is to exercise its power
in respect of restrained property
. directing persons to assist the Official Trustee to take custody and
control of property, and
. that a person whose property has been restrained take action to bring the
restrained property within jurisdiction.
The Sherman Report recommended that the Act be amended to allow ancillary
orders to be made ex parte (Recommendation D7(d)). This item gives effect
to that Recommendation, and in doing so, ensures the proper operation of
the Act.
Item 155 - After subsection 39(4)
This item inserts new subsection 39(4A), which provides that the court may
direct the CDPP to give notice of an application for an ancillary order to
specified persons. This item will ensure that persons who may be affected
by an application for an ancillary order are notified of the application.
While subsection 39(3) requires a person who applies for an ancillary order
to give written notice to all other persons entitled to make an
application, this item will ensure that written notice is provided to all
potentially affected persons (that is, third parties), not just those
entitled to make an application.
This item also inserts new subsection 39(4B), which requires the CDPP to
give written notice to any person affected by an ancillary order made ex
parte. This item is a consequential amendment arising from Item 154 (which
specifically provides that applications for ancillary orders can be made ex
parte). The item ensures that all persons whom the CDPP reasonably
believes may be affected by an ancillary order made ex parte are notified
of the order.
Item 156 - After section 39
This item inserts new section 39A, which abrogates the privilege against
self incrimination with respect to a sworn statement about particulars of,
or dealings with, property given under paragraph 39(1)(d) or (da) of the
Act. This item implements recommendation D7 of the Sherman Report.
In DPP v Xu [2005] NSWSC 191, the court held that the privilege against
self incrimination had been impliedly repealed by the requirement that a
suspect declare an interest in property under paragraph 39(1)(d). The
purpose of this item is to reflect the court's finding by making it express
in the legislation that the privilege against self-incrimination does not
apply to sworn statements made in relation to paragraphs 39(1)(d) or (da).
The provision contains direct use immunity, so that the sworn statement is
not admissible in civil or criminal proceedings against the person who made
the statement, except in certain specified circumstances. These
circumstances are:
. criminal proceedings for false or misleading information
. proceedings on an application under the Act
. proceedings ancillary to applications under the Act, or
. proceedings for enforcement of a confiscation order.
Derivative use immunity does not apply to this provision for operational
reasons. As criminal proceedings and proceeds of crime proceedings are
often conducted simultaneously, a defendant could use a derivative use
immunity (if it were included in this provision) to frustrate a
prosecution. For example, if a defendant made certain admissions in a
statement and provided similar information elsewhere, he or she could claim
that the investigating agency or CDPP obtained the similar information
from, for example, a statement about his or her interests in property or
liabilities (made under paragraph 39(1)(ca)) and this similar information
would then be inadmissible in a prosecution.
The investigating agency or CDPP would then face the very onerous task of
proving the source of prosecution information (that is, proving it was not
derived from the statement). As a consequence, the CDPP and or
investigating agency would be required to quarantine information in
anticipation that an application to exclude might be made, which is not
desirable.
This item also inserts new section 39B, which enables a person to apply to
revoke an ancillary order. This item will enable a person affected by an
ancillary order heard ex parte, to apply to have the order revoked. This
item ensures that a person the subject of an ancillary order is not
prejudiced by an order being made against them in their absence.
Under the provision, the effect of the ancillary order is stayed until the
court hears the application for revocation, and if the ancillary order
directed a person to do a thing within a specified period, the court may
vary the order to extend that period.
Item 157 - Section 40 (note)
This item amends the note to section 40 to include a reference to a person
who has effective control of property covered by a restraining order.
Item 158 - Application
This item sets out the application of amendments made by this Part to
Division 5 of Part 2-1 of the Act (further orders). The amendments apply
where ancillary orders relate to restraining orders applied for on or after
the commencement of this item, whether the conduct constituting the offence
concerned occurred or occurs before, on or after the commencement.
Part 6 - Evidence
Proceeds of Crime Act 2002
Items 159, 160, 162 and 163 - Subsection 64(2), paragraph 64(2)(a),
subsection 138(2) and paragraph 138(2)(a)
These items implement Recommendation D11 of the Sherman Report, which
states that subsections 64(2) and 138(2) should be amended so that the
court can have regard to the transcript of proceedings against the suspect
for any offence which constitutes unlawful activity. The Sherman Report
considered that the current provision, which limits the court's regard to
transcripts of conviction-based proceedings, was unnecessarily
constraining. In its submission to the Sherman Report, the CDPP submitted
that since non-conviction based confiscation proceedings now form an
important part of the Commonwealth confiscation regime, it is appropriate
that the court may have regard to transcripts of proceedings that do not
result in conviction when determining applications for forfeiture and
pecuniary penalty orders. This submission was endorsed by the
Sherman Report.
The following example was mentioned in the Sherman Report. If a person was
found not guilty because of a hung jury, and the CDPP applied for a
forfeiture order or pecuniary penalty order against that person on the
basis that his or her guilt was proven to a civil standard, current
subsections 64(2) and 138(2) would not expressly permit a court to have
regard to the transcript of the relevant proceedings.
The Sherman Report noted that the court should not be restricted to looking
only at transcripts of proceedings which relate to the specific offence
which forms the basis of the forfeiture order or pecuniary penalty order.
The Report noted that there may be cases in which the alleged offence which
forms the basis of a forfeiture order application or a pecuniary penalty
order application is technically different from an offence of which a
person has been convicted. The Report argued that, in such circumstances,
it would seem artificial if the wording of subsections 64(2) and 138(2) are
interpreted so as not to permit the court to have regard to transcript from
the relevant proceedings.
Further, the Sherman Report noted that evidence and convictions relating to
other offences may be relevant to the determination of confiscation
applications. For example, where a person is alleged to have committed a
'serious offence' under the Act, the person will be liable to forfeit not
only proceeds of the specific offence, but also property which represents
proceeds of other 'unlawful activity'.
These items, therefore, remove the references to conviction of an
indictable offence (which limit the provisions), and permit the court to
have regard to transcripts of any proceedings for an offence that
constitutes unlawful activity.
Item 161 - Application
This item sets out the application of amendments made by this Part to
section 64 of the Act. The amendments apply in relation to forfeiture
orders applied for on or after the commencement of this item, whether the
conduct constituting the offence occurred or occurs before, on or after the
commencement.
Item 164 - Application
This item sets out the application of amendments made by this Part to
section 138 of the Act. The amendments apply in relation to pecuniary
penalty orders applied for on or after the commencement of this item,
whether the conduct constituting the offence concerned occurred or occurs
before, on or after that commencement.
Item 165 - After section 318
This item inserts new provision 318A, which allows statements made at an
examination to be admissible as evidence in proceedings under the Act, in
certain circumstances where the maker of those statements is absent or
unavailable to appear as a witness (for example, if they are deceased).
This item also inserts new section 318B, which requires a party to give
notice of their intention to adduce the statements as evidence and allows
for objections to be made to the admission of such statements.
Currently, subsection 318(2) provides that, in proceedings under the Act,
the transcript of an examination is evidence of the answers given by a
person to a question put to the person in the course of the examination.
On its face, subsection 318(2) makes the transcript of an examination
directly admissible in the following proceedings:
. on an application for an order
. ancillary to an application for an order, or
. for enforcement of an order.
However, this matter is not without doubt, as the hearsay rule could
prevent admission of examination transcripts if the examinee is not
available to support the transcript with testimony. Because of the
uncertainty surrounding this issue, the Sherman Report recommended that
transcripts of an examination should be admissible as evidence of answers
given by an examinee, as if the examinee was giving evidence in court
(Recommendation D30). New section 318A implements the effect of this
recommendation, but contains two important safeguards.
First, subsection 318A(4) lists matters to which a court should have regard
in determining the weight given to a statement as evidence. These matters
include:
. the length of time between the matters occurring and the making of the
statement
. any motive the absent witness may possess for concealing or
misrepresenting a material matter, and
. any other circumstances from which an inference may be reasonably drawn
about the accuracy of the statement.
Second, evidence relevant to the credibility of the absent witness is
admissible, but not if it would have been inadmissible had the absent
witness been called and cross-examined.
Section 318B provides that the party wishing to adduce the statements as
evidence must give written notice to the other party at least 14 days prior
to the hearing of the proceedings. If the other party objects, they may
give the adducing party a notice stating their objections. If they do so,
the court can either determine the objections or leave the determination
until the hearing. If the other party does not provide a notice stating
their objections, they are not entitled to object to the adducing of the
statements as evidence at the hearing unless the adducing party consents or
the court gives leave. This provision ensures that the procedure for
adducing evidence is fair to both parties.
These two provisions are based on provisions contained in the Australian
Securities and Investments Commission Act 2001 (Cth). These provisions
were preferred to those contained in the Evidence Act 1995 (Cth) (the
Evidence Act) for two reasons:
First, proceeds of crime proceedings are generally heard in either the
court that convicted the defendant or a State Supreme Court. As
the Evidence Act has not been replicated in all jurisdictions, the
provisions for an unavailable witness are not available uniformly in every
State.
Second, the provisions in this item are more comprehensive than those in
the Evidence Act. For example, section 318A deals with the weight to be
given to the statement, which is desirable given the nature of applications
made under the Act (that is, applications to deal with the property of a
person who may not have been convicted of an offence).
Item 166 - Application
This item sets out the application of new sections 318A and 318B. These
sections apply in relation to statement made at an examination on or after
the commencement of this item, whether the conduct constituting the offence
concerned occurred or occurs before, on or after the commencement.
Part 7 - Definitions
Proceeds of Crime Act 2002
Item 167 - Subsection 19(4)
Item 167 omits the word, "indictable" in subsection 19(4) of the Act. This
will ensure consistent references to offences.
Section 19(1) of the Act permits a court to restrain property upon
application by the CDPP, and if there are reasonable grounds to suspect
that property is the proceeds of a "terrorism offence," "indictable
offence," "foreign indictable offence" or "indictable offence of
Commonwealth concern."
Section 19(4) of the Act provides that reasonable grounds do not need to be
based on a finding of the commission of a particular "indictable offence."
However, section 19(4) does not contain any reference to a "terrorism
offence," a "foreign indictable offence" or an "indictable offence of
Commonwealth concern." The different references could suggest that
reasonable grounds to suspect that property is the proceeds of these three
types of offences must be based on the commission of a particular offence.
This is not the intended process for restraining orders.
Insertion of Note
A Note is inserted after section 19 of the Act to amend the heading to
section 19. Instead of reading, "Restraining orders - people suspected of
committing indictable offences etc," it will read, "Restraining orders -
property suspected of being the proceeds of indictable offences etc."
This will more accurately reflect the fact that section 19 of the Act
allows restraint action to be taken directly against an asset, rather than
as a result of the conduct of a specific and known suspect.
Item 168 - Application
This item sets out the application of amendments made by this Part to
section 19 of the Act. These amendments apply in relation to restraining
orders applied for on or after the commencement of this item, whether the
conduct constituting the offence concerned occurred or occurs before, on or
after that commencement.
Items 169, 170 and 171 - Subsection 337(3), after subsection 337(4) and at
the end of section 337
Items 169, 170 and 171 are related amendments to the definition of
"effective control" under section 337 of the Act. The Act specifies a
number of circumstances where a person is taken to have "effective control"
over property, even though the person may not have a legal or equitable
interest in the property. Concerns have arisen regarding potential gaps in
the definition of "effective control." Items 169, 170 and 171 will address
these concerns and were recommendation D32 of the Sherman Report.
Item 169 repeals subsection 337(3) of the Act. That subsection described
when property is under the effective control of a person where the person
is one of two or more beneficiaries under a discretionary trust. Although
it was never intended that the presumption in subsection 337(3) was
absolute, in practice, it has been interpreted in that way by the courts
and proved difficult to use in practice.
An absolute presumption that beneficiaries have effective control over
equal shares, regardless of all of the circumstances, may result in a
portion of illegitimate funds being placed outside the reach of law
enforcement authorities. It is for this reason that Item 169 repeals
subsection 337(3) of the Act. It will now be open to the CDPP to present
the facts of each particular case, without a presumption operating in the
background.
Item 170 inserts new subsection 337(5A) after subsection 337(5). This
amendment overcomes the difficulty created by the fact that, at different
stages of proceedings under the Act, property will be subject to the
"effective control" of different people.
For example, before proceedings under the Act are commenced, property will
likely be subject to the effective control of a suspect. However, in
deciding whether to make a pecuniary penalty order, it is most likely that
the property to which the pecuniary penalty order relates will be
restrained under a restraining order and is arguably no longer under the
effective control of a suspect.
For the avoidance of doubt, Item 170 states that, in determining whether or
not property is subject to the effective control of a person, the effect of
any order made in relation to the property under the Act is to be
disregarded.
Item 171 clarifies that the concept of "effective control" does not require
'sole' control of property. This will ensure that "effective control"
covers situations where property is under the control of more than one
person.
This problem was identified in the context of jointly controlled bank
accounts. It is probable that evidence of effective control would displace
a shared trust, but the Sherman Report advised it would be prudent to
remove any doubt. This amendment ensures that a court can determine that
property is under the effective control of the suspect where property is
controlled by more than one person.
Items 172 and 173 - paragraphs 337A(1)(a) and (2)(a)
Items 172 and 173 are related amendments concerning the definition of
"foreign indictable offence." They amend the definition of "foreign
indictable offence" so the definition will no longer be linked to an
application for a restraining order or confiscation order.
The existing definition of "foreign indictable offence" states that "if an
application is made for a restraining order or confiscation order..." and
certain other criteria are satisfied, then unlawful conduct "is treated as
having constituted a foreign indictable offence at all relevant times."
Thus the definition appears to be predicated on an application for a
restraining order or confiscation order under the Act having been made.
This has implications for investigative powers under the Act, which are
designed to be used before a restraining order is applied for, such as
production orders and search warrants under the Act.
Item 172 gives effect to the above by inserting the words, "production
order, search warrant," before "restraining" in paragraph 337A(1)(a) of the
Act.
Item 173 is required to enable law enforcement authorities to access
production orders and search warrants, before a restraining order is
obtained. This amendment does this by inserting the words, "production
order, search warrant," after "freezing" in paragraph 337A(2)(a) of the
Act.
Item 174 - Subsection 337A(3)
Item 174 repeals subsection 337A(3) of the Act. Subsection 337A(3) states
that "offence against a law of a foreign country" includes an offence
triable by a military commission of the United States of America
established under a Military Order of 13 November 2001 made by the
President of the United States of America and entitled "Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism."
On June 29 2006, the Supreme Court of the United States handed down its
decision in Hamdan v Rumsfeld which found the military commissions
established by the military order to be invalid. In light of the Supreme
Court's decision, it is appropriate to remove subsection 337A(3) from the
definition of "offence against a law of a foreign country."
Item 175 - Application
This item sets out the application of amendments made by this Part to
section 337A of the Act. The amendments apply in relation to an
application for a restraining order or confiscation order in relation to
conduct that constituted an offence against a law of a foreign country.
The application must be made on or after the commencement of this item,
whether the conduct constituting the offence concerned occurred or occurs
before, on or after the commencement.
Item 176 - Section 338
This item repeals the definition of 'discretionary trust'. This is a
consequential amendment arising from the repeal of section 337(3) (Item
169), as that section referred to 'discretionary trust' as defined in the
Dictionary in section 338. Without this reference, a definition is no
longer required in the Dictionary in section 338.
Item 177 - Section 338 (paragraph (b) of the definition of evidential
material)
Item 177 amends paragraph (b) of the definition of "evidential material",
and is related to Item 180. This amendment is necessary because,
currently, the CDPP is unable to seize evidential material with respect to
benefits derived from the commission of a foreign indictable offence or an
indictable offence of Commonwealth concern.
These shortcomings are of particular concern because these definitions
could prevent search warrants being carried out to investigate the proceeds
of foreign offences transferred to Australia, which could frustrate mutual
assistance requests from Australia's international partners. The Sherman
Report recommended that these changes be made (recommendations D37 and
D39.)
Item 178 - Application
This item sets out the application of the amendment made by Item 180 (which
amends the definition of 'tainted property'). This amendment applies in
relation to search warrants applied for on or after the commencement of
this item.
Item 179 - Section 338 (after paragraph (a) of the definition of serious
offence)
Item 179 amends the definition of "serious offence" in section 338 of the
Act by expanding it to cover two or more related fraud offences which, in
aggregate, cause a benefit or loss of more than $10,000.
The existing definition of "serious offence," as it relates to fraud-type
offences, refers to an indictable offence that causes a benefit or loss of
at least $10,000, punishable by three or more years' imprisonment.
The existing definition does not capture the situation where a person
commits a series of related frauds which, in aggregate, cause a
benefit/loss of more than $10,000.
A pattern of conduct involving systemic fraud is particularly problematic
in areas such as social security, taxation and customs, where each
individual fraud may involve less than $10,000, but the total pattern of
fraud can involve much larger amounts.
Item 179 inserts paragraph (aa) after paragraph (a) of the definition of
"serious offence" in section 338 of the Act. New paragraph (aa) provides
that where a person's unlawful conduct consists of an indictable offence
(the 3 years offence) punishable by imprisonment for 3 or more years and
one or more other indictable offences that, taken together with the 3 years
offence, constitute a series of offences that:
. are founded on the same facts or are of a similar character; and
. cause, or are intended to cause, a benefit to the value of at least
$10,000 for that person or another person, or a loss to the Commonwealth
or another person of at least $10,000
those offences constitute a "serious offence."
Item 180 - Section 338 (paragraph (a) of the definition of tainted
property)
This Item is related to Item 177. It amends the definitions of "tainted
property" and "evidential material" under section 338 of the Act by
including foreign indictable offences and indictable offences of
Commonwealth concern. The definitions of tainted property and evidential
material are relevant to issuing and executing search warrants issued under
Part 3-5 of the Act.
Item 180 amends paragraph (a) of the definition of "tainted property."
Tainted property is currently defined only as proceeds or an instrument of
an "indictable offence." As a result, the proceeds of a "foreign
indictable offence" or an "indictable offence of Commonwealth concern" do
not constitute tainted property for the purposes of the Act and cannot be
seized using search warrants under Part 3-5 of the Act.
Item 181 - Application
This item sets out the application of Item 177, which amends the definition
of 'evidential material'. The amendment applies in relation to search
warrants applied for on or after the commencement of this item.
Item 182 - Section 338 (paragraph (b) of the definition of unlawful
activity)
Item 182 amends paragraph (b) of the definition of "unlawful activity"
under section 338 of the Act by omitting the words, "that may be dealt with
on indictment (even if it may be dealt with as a summary offence in some
circumstances)." The effect of this amendment is to extend the definition
of "unlawful activity" to cover any offence against the law of a State or
Territory.
Currently, the definition of "unlawful activity" applies to any offences
against Commonwealth law or the laws of a foreign country, but applies only
to indictable offences under State and Territory law (excluding
State/Territory summary offences). This limit did not exist in the
Proceeds of Crime Act 1987 and the Sherman Report recommended the
definition be amended to encompass these offences (recommendation D38).
Without the amendments, it is possible that a person may avoid the effect
of "person directed" forfeiture or automatic forfeiture following
conviction by showing that property was derived from the commission of
summary offences against State or Territory law.
Part 8 - Technical amendments relating to orders
Proceeds of Crime Act 2002
Item 183 - At the end of subsection 45(1)
Item 183 of Schedule 1 will allow a restraining order to remain in effect
where an appeal against a conviction has been successful, but a new trial
has been ordered.
Item 183 inserts new paragraph (h) into subsection 45(1) of the Act.
Paragraph 45(1)(c) of the Act provides that a restraining order based on a
conviction ceases to be in force 28 days after a person's conviction for
the offence is quashed or set aside.
This is appropriate where the quashing order is the end of the matter, but
a problem arises when a person's conviction is set aside and the same
matter is to be re-tried. A lapsed order in this situation increases the
risk of criminal proceeds being dissipated.
This amendment is supported by the Sherman Review and will save CDPP
resources because it will no longer be required to return to court and
obtain a new restraining order in relation to the same alleged offence
where a new trial is ordered following a quashed or set aside conviction.
Insert of Note
The Note inserted after subsection 45(1) amends the heading to section 49
of the Act. Instead of reading, "Forfeiture orders - conduct constituting
indictable offences etc," it will read, "Forfeiture orders - property
suspected of being the proceeds of indictable offences etc."
This will more accurately reflect the fact that section 49 of the Act
allows confiscation action to be taken directly against an asset, rather
than as a result of the conduct of a specific and known suspect.
Item 184 - Application
This item sets out the application of the amendment made by this Part to
section 45 of the Act. The amendment applies in relation to restraining
orders applied for on or after the commencement of this item, whether the
conduct constituting the offence concerned occurred or occurs before, on or
after that commencement.
Items 185, 186, 190 and 191 - Section 84, at the end of section 84, section
110 and at the end of section 110
Items 185, 186, 190 and 191 remove certain technical requirements from
sections 84 and 110 of the Act, to address unintended consequences that
limit a court's ability to issue orders confirming confiscation of criminal
assets.
Sections 84 and 110 permit a court to confirm a conviction-based forfeiture
order (under section 48) if a conviction is quashed or overturned on
appeal. A court is permitted to confirm conviction-based forfeiture if it
is satisfied that it could have made a forfeiture order under sections 47
or 49 (which allow non-conviction-based forfeiture). Without a
confirmation order, conviction-based forfeiture becomes void if a
conviction is quashed or overturned on appeal.
A problem arises because forfeiture orders are generally based on
previously issued restraining orders and non-conviction forfeiture orders
under sections 47 and 49 rely on restraining orders issued under different
sections to conviction based forfeiture orders under section 48 of the Act.
Forfeiture under section 47 is based on a restraining order issued under
section 18. Forfeiture under section 49 is based on a restraining order
issued under section 19. However, conviction-based forfeiture under
section 48 will usually flow from restraining orders issued under section
17. Indeed, section 48 permits a court to order property forfeited without
any previous restraining order if it is satisfied that a person obtained
benefits from the crime for which they were convicted.
The result is that a court cannot be satisfied it could have made a
forfeiture order under sections 47 or 49 of the Act, because the applicable
restraining orders for those sections will likely not exist.
The Sherman Review recommended that these changes be made (recommendation
D13.) Mr Sherman noted that, "these proposals remove certain anomalies in
the drafting of ss. 84 and 110 and do not raise issues of substance or
questions of fairness. The proposals are in accord with the intended
grounds for, and effects of, confirmation orders. The power to make
confirmation orders remains at the discretion of the court."
Item 185 is necessary because Item 186 inserts new subsection (2) into
section 84. Item 185 makes the existing section 84, new subsection 84(1).
Item 186 deems the requirements of paragraphs 84(1)(a) and 84(1)(b) to have
been satisfied. This overcomes the problem described above that a court
cannot be satisfied it could have made a forfeiture order under sections 47
or 49, because the applicable restraining orders for those sections likely
do not exist.
Item 190 is necessary because Item 191 inserts new subsection (2) into
section 110. Item 190 makes the existing section 110, new subsection
110(1).
Item 191 deems the requirements of paragraphs 110(1)(a) and 110(1)(b) to
have been satisfied. This overcomes the problem described above that a
court cannot be satisfied it could have made a forfeiture order under
sections 47 or 49, because the applicable restraining orders for those
sections likely do not exist.
Item 187 - Application
This item sets out the application of amendments made by this Part to
section 84 of the Act. The amendments apply in relation to applications
made to by the CDPP, on or after the commencement of this item, for a
pecuniary penalty order to be confirmed.
Items 188 and 189 - Subsections 85(1) and (2)
These items insert consequential amendments arising from the insertion of
subsection 84(1) (Item 185). They amend the references in subsections
85(1) and (2) to paragraph 84(b), so that they now refer to paragraph
84(1)(b).
Item 192 - Application
This item sets out the application of amendments made by this Part to
section 110 of the Act. These amendments apply in relation to applications
made by the CDPP, on or after the commencement of this item, for a
forfeiture order to be confirmed.
Items 193 and 194 - Subsections 111(1) and (2)
These items insert consequential amendments arising from the insertion of
subsection 110(1) (Item 190). They amend the references in subsections
111(1) and (2) to paragraphs 110(a) and (b), so that they now refer to
paragraphs 110(1)(a) and (b).
Item 195 - Paragraph 316(1)(b)
Item 195 amends subsection 316(1) of the Act so the court must seek the
consent of all persons likely to be affected by an order when considering
making orders by consent, not the people who have an 'interest' in the
property.
Currently, a court may make an order with the consent of the applicant in
the proceedings and 'everyone whom a court has reason to believe has an
interest in the property that is the subject of the proceeding' (subsection
316(1)). 'Interest' under the Act is very widely defined and, among other
things, includes a 'right, power or privilege in connection with the
property or thing, whether present or future and whether vested or
contingent'.
Under section 316, a court must seek the consent of every party with an
interest, whether or not they will be affected by the order. For example,
an order for the Official Trustee to take custody and control of an item of
real property will not affect the interests of a registered mortgagee
(which are protected by a registered charge over the property) but this
person has to be involved in the court process under existing section 316.
The effect of existing section 316 is that, in some cases, a person who
only has a 'technical' interest in the relevant property may prevent
consent orders from being made, even where all persons with a real interest
in the property have agreed.
A more appropriate basis for making consent orders is to require a court to
seek the consent of those people whom a court has reason to believe would
be affected by the orders. Item G3A achieves this by omitting from
paragraph 316(1)(b) the words, "has an interest in the property that is the
subject of the proceeding," and substituting, "would be affected by the
order."
Item 196 - Paragraph 316(2)(b)
Item 196 amends subsection 316(2) of the Act to overcome an anomaly whereby
parties can consent to dispensing with the requirement under paragraph
47(1)(b) of the Act that property to be forfeited must have been subject to
a restraining order under s 18 for at least 6 months, but cannot make a
similar consent agreement with respect to paragraph 49(1)(b) of the Act
(which states that property to be forfeited must have been subject to a
restraining order under section 19 for at least 6 months.)
Given the nature of section 49 orders (forfeiture of proceeds and
instruments) it would be useful for such orders to be able to be made
without reference to a requirement that they be restrained for 6 months.
Item 196 enables this by inserting references to section 49 forfeiture
orders relating to property suspected of being proceeds of indictable
offences into paragraph 316(2)(b).
Both of these amendments were recommended by the Sherman Review
(Recommendation D29). Mr Sherman commented that the amendment of paragraph
316(1)(b), "seems to balance the various interests appropriately but
reduces the prospect of "mischief" by third parties." In relation to
316(2)(b), Mr Sherman said, "it makes sense that parties can agree in a
settlement to dispense with the six month requirement and the Act should
make this clear."
Item 197 - Application
This item sets out the application of amendments made by this Part to
section 316 of the Act. The amendments apply to proceedings under Chapter
2 of the Act, whether commenced before, on or after the commencement of
this item.
Part 9 - Confiscated Assets Account
Proceeds of Crime Act 2002
Items 198, 199, 200, 201, 202 and 203 - Subsections 296(2), 297(1), 297(2)
and section 399 (definitions of distributable funds and suspended funds)
These items remove all references to 'distributable' and 'suspended' funds
in Part 4-3 of the Act. In doing so, they implement Recommendation 13(a)
of the Sherman Report, which called for the abandonment of the distinction
between distributable and suspended funds in the CAA.
The distinction was originally included in the Act to allow the Inspector
General in Bankruptcy to 'quarantine' funds to meet forthcoming payments to
be made out of the CAA, to reduce the possibility of there being
insufficient funds to make the required payments.
In practice, the distinction has placed an administrative burden on ITSA
without having significant effect on managing the risk of there being
insufficient funds when a payment needs to be made. The Sherman Report
noted ITSA's submission that:
...in a contemporary accounting environment, [the process of
determining suspended and distributable funds] is becoming less
relevant...The provision of budgets, projections, commitments and
accrual information may serve stakeholders better than a regular report
of the balances for distributable and suspended moneys in the CAA.
The Sherman Report endorsed these comments, concluding that the distinction
between distributable and suspended funds seemed '...to serve no purpose
that ordinary prudent accounting measures cannot serve'.
As the terms serve no practical purpose in the day to day administration of
the CAA, these items remove them to facilitate efficient administration.
Item 204 - At the end of subsection 296(1)
This item inserts paragraph 296(1)(h) into subsection 296(1). The effect
of the amendment is to include amounts paid to the Commonwealth in
settlement of proceedings connected with the Act as amounts that must be
credited to the CAA.
Subsection 296(1) of the Act identifies the source of funds credited to the
CAA. Presently, monies paid to the Commonwealth in the settlement of
proceedings under the Act are not provided for in subsection 296(1). This
amendment expressly provides for such payments to be made into the CAA, to
make clear on the face of the legislation the source of CAA funds.
Item 205 - Application
This item sets out the application of amendments made by this Division to
paragraph 296(1)(h) of the Act. The amendments apply to amounts paid to
the Commonwealth on or after the commencement of this Division, in
settlement of proceedings connected with this Act, whether the settlements
occurred before, on or after that commencement.
Item 206 - At the end of section 55
This item inserts a new subsection at the end of section 55 which clarifies
what the court should have regard to when calculating an order under
paragraph 55(2)(a). The new subsection provides that the amount specified
in an order under paragraph 55(2)(a) should be determined either wholly or
partly by reference to the difference between the amount received from
disposing of all of the property and any payments (of a kind referred to in
paragraph 70(1)(b)) which are incurred as a result of the disposal of the
property. These payments include remuneration of the Official Trustee and
any costs, charges and expenses that the Official Trustee incurs in
connection with the disposal of the property.
This amendment will ensure that a court can make an order that takes into
account the eventual sale price of a property and the costs incurred in
disposing of the property.
Items 207 and 208 - After paragraph 297(1)(f), paragraph 297(g)
These items insert paragraph 297(1)(fa) into subsection 297(1) (which
defines the purposes for which funds are paid out of the CAA), and make a
consequential amendment to paragraph 297(1)(g). These items implement
Recommendation D10 of the Sherman Report.
The Sherman Report identified three sources of payments that are not
expressly provided for in the Act. The sources are payments to:
. a person for their interest in property (section 55)
. an amount to relieve hardship (section 72), and
. a person who successfully obtains a compensation order (section 77)
The Sherman Report recommended that these payments be made out of the
proceeds of the sale of forfeited property, and out of the CAA where the
proceeds have been paid into that account. As it raises constitutional
issues for payments to be made out of the proceeds of the sale of forfeited
property (as the Constitution requires that money be drawn by appropriation
under law), subsection 297(1) has been amended to provide the above named
sources of payment may be made out of the CAA.
A consequential amendment has also been made to paragraph 297(1)(g).
Paragraph 297(1)(g) currently provides that payments made under paragraph
73(2)(d) and subparagraph 102(d)(ii) are payments 'by way of restitution'.
These payments are now included in paragraph 297(1)(fa), so that they are
described as 'payments the Commonwealth is directed to make by an
order...'. The remaining payments stated in paragraph 297(1)(g), paragraph
88(1)(b) and subsection 289(2) are now described as payments made 'under
arrangement', as this is a more accurate description of the nature of these
payments.
Item 209 - Application
This item sets out the application of amendments made by this Division to
paragraphs 297(1)(fa) and (g) of the Act. The amendments apply in relation
to orders and arrangements made on or after the commencement of this
Division.
Part 10 - Other amendments
Administrative Decisions (Judicial Review) Act 1977
Item 210 - After paragraph (ya) of Schedule 1
Item 210 of Schedule 1 of the Bill amends Schedule 1 of the Administrative
Decisions (Judicial Review) Act 1977 by adding a new class of decision that
is not subject to judicial review under the AD(JR) Act. The class of
decision is decisions of the CDPP to apply for an order under the Act.
Section 5 of the AD(JR) Act provides an aggrieved person with the right to
have any decision of an administrative character made under an 'enactment,'
reviewed in court. This right is limited by other sections of the AD(JR)
Act, in circumstances where judicial review of a decision is not
appropriate.
This includes decisions to prosecute criminal matters (paragraph (xa) of
Schedule 1 to the AD(JR) Act) and 'related criminal justice process
decisions' (section 9A of the AD(JR) Act.) This is appropriate because
judicial review can lead to fragmentation of criminal justice proceedings.
As with criminal proceedings, questions about the validity of proceedings
under the Act can be examined during the course of proceedings under the
Act and a separate stage of review is not necessary. Currently, the CDPP
is exempt from the operation of the AD(JR) Act in the context of gathering
information through examinations (paragraph (ya) of Schedule 1 to the
AD(JR) Act).
Item 211 - Application
This item sets out the application of Item 210. The amendment made by the
item applies in relation to decisions made on or after the commencement of
this item.
Proceeds of Crime Act 2002
Items 212, 213, 215, 217 and 218 - Paragraphs 142(3)(a), 169(3)(a), 302(a),
302C(a) and 307(3)(a)
These items rectify an anomaly in the Act whereby a suspect's ownership of
property could defeat a charge placed over that property to enforce
penalties or secure fees. The amendment will ensure that charges created
under the Act can be effectively enforced.
Charges are created against property subject to restraint under the Act to
enforce penalties or secure fees (see sections 142, 169, 302A and 307 of
the Act.) These charges are expressed to be subject to every 'encumbrance'
on the property that came into existence before the charge and that would
otherwise have priority over the charge. The charges have priority over
all other 'encumbrances.'
'Encumbrance' is defined under section 338 of the Act to include an
'interest', which is itself defined under section 338 to include 'a legal
or equitable interest' in property. This definition includes ownership of
property. It is arguable that this means that charges over property are
subordinate to a suspect's ownership of property and could never be
enforced. By this interpretation, a court might be powerless to enforce
the pecuniary penalty order it has made.
Items 212, 213, 215, 217 and 218 address this situation. They amend
paragraphs 142(3)(a), 169(3)(a), 302(a), 302C(a) and 307(3)(a) by stating
that, while a charge is subject to encumbrances that came into existence
before the charge, this does not include a suspect's encumbrance over his
or her property. The interests of third parties will still continue to
have priority over charges created by the Act.
Item 214 - Part 4-4 (heading)
Item 214 repeals the heading to Part 4-4 of the Act. The words, "Charges
over restrained property for payment of certain amounts," are deleted and
replaced with, "Charges over restrained property to secure certain amounts
payable to the Commonwealth."
This new heading more accurately reflects the nature of Part 4-4, under
which charges created under the Act secure property to pay amounts to the
Commonwealth such as penalties or fees.
Item 216 - Division 2 of Part 4-4 (heading)
Item 216 repeals the heading of Division 2 of Part 4-4 of the Act. This
heading is no longer needed because the Crimes Legislation Amendment
(Serious and Organised Crime) Bill (No 1) 2009 repealed sections 300-302 of
the Act, which was Division 1 of Part 4-4 of the Act. Sections 302A, 302B
and 302C are the remaining sections of Part 4-4 and now come under Division
1 of Part 4-4 of the Act.
Item 219 - Application
This item sets out the application of amendments made by this Part to
sections 142, 169, 302, 302C and 307 of the Act. The amendments apply in
relation to charges created on or after the commencement of this item.
Item 220 - After section 315
Item 220 inserts new section 315A into the Act. It will remove any doubt
about whether a court is able to hear and determine orders simultaneously,
although a court is not required to do so.
There is no provision that expressly permits a court to simultaneously hear
and determine more than one application under the Act. This is in contrast
to subsection 141(2) of the Confiscation Act 1997 (Vic). This amendment
will improve court processes by allowing a court to determine, for example,
applications for forfeiture and exclusion of forfeiture, at the same time.
Item 221 - Application
This item sets out the application of amendments made by this Part to
section 315A of the Act. The amendments apply in relation to applications
made on or after the commencement of this item.
Schedule 2 - Search warrants
GENERAL OUTLINE
The amendments contained in this Schedule target two main aspects of the
search warrant provisions in the Crimes Act 1914. Firstly, the reforms
will allow material seized under Part IAA of the Crimes Act to be used by,
and shared between, Commonwealth, State and Territory law enforcement
agencies. This is necessary for the proper investigation of offences which
cross jurisdictional boundaries.
The second component of the amendments will ensure that law enforcement
agencies are able to effectively and efficiently access and search
electronic equipment.
Crimes Act 1914
Items 1 and 2
Paragraph 3ZV(1)(b) and subsection 3ZV(2) deal with when things seized
under section 3T (searches without warrant in emergency situations) must be
returned. Section 3ZW allows a magistrate to make an order that a thing
seized under section 3T can be retained for a further period.
Sections 3ZV and 3ZW will be repealed by Item 10 and replaced by the
insertion of sections 3ZQY and 3ZQZ under Item 8. New section 3ZQY will
set out when things seized under Division 3 of Part IAA (eg section 3T)
must be returned. New section 3ZQZ will allow a magistrate to make an
order that a thing seized under Division 3 can be retained for a further
period.
Item 9 will also insert new section 3ZQX which replaces the remainder of
section 3ZV, dealing with things seized under provisions in Part IAA other
than section 3T.
Items 1 and 2 are necessary as a consequence of Items 9 and 10.
A range of provisions in Part IAA confer powers and functions on
magistrates. Subsection 3C(1) provides that in certain sections (including
section 3ZW) magistrate has a meaning affected by section 3CA. This is
because the functions under those sections (including section 3ZW) are not
traditional functions of judicial officers.
Section 3CA provides, among other things, that: the function of making an
order under section 3ZW is conferred on the magistrate in a personal
capacity (subsection 3CA(1)); an order made by a magistrate under
section 3ZW only has effect by virtue of this Act and the order not to be
taken by implication to be made by a court (subsection 3CA(2)); a
magistrate performing a function under section 3ZW has the same protection
and immunity as if the magistrate were performing that function as a member
of the Court to which they belong; and, the Governor-General may make
arrangements for magistrates to perform the functions of making orders
under section 3ZW (subsection 3CA(4)).
Item 1 will replace the reference to section 3ZW in subsection 3C(1) with
new section 3ZQZ. Item 2 will replace references to section 3ZW in
subsections 3CA(1)-(4) with new section 3ZQZ.
Item 3
Subsection 3F(5) currently provides that a thing that has been seized
(seized material) can be made available to officers of other agencies if it
is necessary to do so for the purpose of investigating or prosecuting an
offence to which the things relate. This provision limits the ability of
Commonwealth law enforcement officers to share seized material with State
or Territory officers for the purpose of investigating a State offence.
This has prevented effective law enforcement cooperation between the
Commonwealth and the States and Territories. The provision also prevents
Commonwealth law enforcement agencies from sharing seized material with
foreign agencies for the investigation of an Australian offence.
Item 9 will insert detailed rules governing the sharing of seized material
under new section 3ZQU. Accordingly, subsection 3F(5) is no longer
necessary and will be repealed by Item 3.
Item 4
Section 3L governs the use of electronic equipment which is found on a
search warrant premises. Subsection 3L(1A) allows an executing officer to
copy data and take it from the warrant premises.
Subsection 3L(1B) outlines when data taken from electronic equipment at the
premises must be destroyed. Currently under subsection 3L(1B), data must
be destroyed if the Commissioner of the AFP is satisfied that the data is
not required, or no longer required, for:
. investigating a Commonwealth, State or Territory offence
. judicial proceedings or administrative review proceedings
. investigating or resolving complaints under the Ombudsman Act about the
AFP or under the Privacy Act, or
. investigating or resolving AFP conduct or practices issues.
Item 9 will insert detailed rules governing the use of seized material
under new section 3ZQU. These uses generally include the purposes set out
in subsection 3L(1B).
This item will repeal and replace paragraph 3L(1B)(b), and instead require
data to be destroyed if the Commissioner is satisfied that the data is not
required, or no longer required, for a purpose mentioned in new section
3ZQU (to be inserted by Item 9) or for other judicial or administrative
review proceedings.
The reference to judicial or administrative review proceedings will be
retained, as things seized in certain circumstances may be needed for
administrative review or judicial proceedings outside the scope of uses
that will be listed in new section 3ZQU. The other requirements currently
in paragraph 3L(1B)(b) will be contained in section 3ZQU.
It would be inappropriate to include any judicial or administrative review
proceedings as a reason for which something can be shared under subsection
3ZQU(1). However, it is important that data is not required to be
destroyed if it is required for judicial or administrative review
proceedings. An example of where a thing seized during the execution of a
warrant may be needed for administrative or judicial review proceedings is
where a challenge to the execution of the warrant is brought before a
court. In this instance, it may be necessary to produce the things seized
as evidence in the proceedings as proof that they were properly seized
under the warrant.
Items 5 - 8
Division 3A of Part IAA sets out powers to stop, question and search
persons in relation to terrorist acts. Under Division 3A, police officers
have search and seizure powers (sections 3UD and 3UE respectively).
Section 3UF outlines how a thing seized under section 3UE is to be dealt
with. In particular, subsections 3UF(4)-(7) set out when a thing that has
been seized needs to be returned. Further, subsection 3UF(9) and
section 3UG deal with applications and orders for things that are seized to
be returned or retained for a further period (or otherwise dealt with).
Items 5, 6 and 7 will repeal subsections 3UF(4)-(7) and (9) and section 3UG
respectively. These provisions will be replaced by new sections 3ZQZA and
3ZQZB inserted by Item 9. New sections 3ZQZA and 3ZQZB will set out when
things seized under Division 3A must be returned. New section 3ZQZA will
allow a magistrate to make an order that a thing seized under Division 3A
can be retained for a further period. Under section 3UK, the powers and
duties in Division 3A (other than the those in sections 3UF and 3UG which
deal with the return of seized things) are subject to a 10 year sunset
clause (from the date of commencement of the Division, which was 15
December 2005). Item 8 will remove the reference to section 3UG from
section 3UK as Item 7 will repeal section 3UG.
Item 9
Part IAA sets out the main search, information gathering and arrest
powers that police use to investigate Commonwealth offences (as well as
Territory offences and State offences with a federal aspect).
Item 9 will insert a comprehensive regime for:
. the use and sharing of things that are seized, and documents that are
produced, under Part IAA (new section 3ZQU)
. operating seized electronic equipment and compensation for damage to
electronic equipment (new sections 3ZQV and 3ZQW), and
. the return of things seized under Part IAA (new sections 3ZQX - 3ZQZB).
Subdivision A - using and sharing of seized things and documents produced
A search warrant for the investigation of Commonwealth offences can be
obtained by applying to an issuing officer. For a warrant to be issued,
the issuing officer must be satisfied that there are reasonable grounds for
suspecting that there is or will be in the next 72 hours evidential
material on the premises (subsection 3E(1)). Evidential material is
defined in subsection 3C(1) of the Crimes Act to mean a thing relevant to
an indictable or summary offence, including such a thing in electronic
form.
A thing can be seized under a warrant if it is relevant to the offence
stated in the warrant or if the executing officer believes it to be
evidential material in relation to another offence. This includes
operating and seizing electronic equipment that is on a warrant premises.
Use and sharing of things seized and documents produced
The current provisions in Part IAA do not specify how things seized under
Part IAA can be used. As a result, there is uncertainty as to whether law
enforcement agencies can use seized material for purposes other than those
for which it was seized. For example, it is not clear whether things
seized for the investigation of a particular offence can be used for: the
investigation or prosecution an unrelated offence; for proceedings under
the Proceeds of Crime Act; or other law enforcement purposes such as
applying for the use of a control order under Part 5.3 of the
Criminal Code). The legislation governing other investigative methods such
as surveillance devices or telecommunications intercepts contain detailed
rules about use of any information obtained. It is therefore possible that
a court could limit the uses of material seized to purposes specifically
provided for in Part IAA.
Subsection 3F(5) currently provides that a thing that has been seized can
be made available to 'officers of other agencies' if it is necessary to do
so for the purpose of investigating or prosecuting an offence to which the
things relate. This provision limits the ability of the officer who seized
the thing sharing the seized material with State or Territory police
officers for the purpose of investigating a State offence. This has
prevented effective law enforcement cooperation between the Commonwealth
and the States and Territories. The provision also prevents seized things
being shared with foreign agencies for the investigation of an Australian
offence.
Sharing of seized things with a foreign agency for the investigation of a
foreign offence is governed by the Mutual Assistance in Criminal Matters
Act 1987.
Division 4B provides authorised AFP officers with the power to request
information or documents relating to terrorist acts and serious terrorism
and non-terrorism offences. Terrorist act is defined as having the same
meaning as in subsection 100.1(1) of the Criminal Code. A terrorism
offence is defined in section 3 of the Crimes Act to mean an offence
against Subdivision A of Division 72 of the Criminal Code or an offence
against Part 5.3 of the Criminal Code. A serious offence is offence is
defined in section 3C of the Crimes Act as any Commonwealth or Territory
offence or State offence with a federal aspect that is punishable by 2 or
more years imprisonment that is not a serious terrorism offence (most
terrorism offences). Like things seized under Part IAA, Division 4B also
does not specify how seized documents can be used and whether they can be
used for purposes other than those for which they were produced.
To enable police to properly perform their duties, it is important that
things or documents that are lawfully acquired (either by being seized
under Part IAA or produced under Division 4B) are able to be used or shared
for any necessary purpose connected with, or related to, law enforcement
functions and activities. Accordingly, this item will insert Division 4C
which will comprehensively govern how things seized under Part IAA, or
information and documents produced under Division 4B, can be used and
shared.
However, the new Division will not expand or alter in any way the
grounds on which a search warrant can be obtained or the grounds upon
which things may be seized or the grounds on which documents can be
required to be produced under Division 4B. For example, under the
amendments, it will still not be possible to seek a search warrant
purely for the purpose of obtaining material to support control order
or proceeds of crime proceedings, or to seize material for those
purposes.
Section 3L currently details the powers of officers executing a warrant in
relation to electronic equipment. However, there are no provisions
governing how equipment can be used after seizure, and what material may be
accessed from electronic equipment after it has been seized.
Section 3ZQU
Section 3ZQU will govern the use and sharing of things seized under
Part IAA and information and documents produced under Division 4B.
Subsection 3ZQU(1) will set out the purposes for which things or
information and documents (including copies of documents) can be used and
shared by a constable or Commonwealth officer with another constable or
Commonwealth officer.
Constable is defined in subsection 3(1) as a member or special member of
the AFP or a member of the police force or police service of a State or
Territory. Commonwealth officer is defined in subsection 3(1) as a person
holding office under, or employed by, the Commonwealth (including
Commonwealth public servants).
This means, for example, that under subsection 3ZQU, a constable who is a
member (or special member) of the AFP will be able to share a thing seized
under Part IAA with another member (or special member) of the AFP, with a
constable who is a member of a State or Territory police force or service,
or with a Commonwealth officer.
Enabling things that have been seized, or information or documents that
have been produced, to be used by, or and shared, with constables is
appropriate as both the AFP and a State or Territory police force or
service may be involved in the investigation of Commonwealth offences (or
Territory offences or State offences with a federal aspect) as part of a
joint task force. Enabling things that have been seized, or documents that
have been produced, to be used by, or shared with, Commonwealth officers is
also appropriate. For example, it may be necessary to share a seized thing
with a tax auditor for revenue enforcement purposes.
Under subsection 3ZQU(1), the use and sharing of things that have been
seized, or documents that have been produced, will be permitted if it is
necessary to do so for the reasons below. The provisions do not presuppose
that these uses are not available currently, but puts the issue beyond
doubt by providing a direct legislative basis for each of the following
uses.
. Preventing, investigating or prosecuting an offence (offence is
defined in subsection 3C(1) as an offence against a law of the
Commonwealth (other than the Defence Force Discipline Act 1982), an
offence against a law of a Territory, or a State offence that has a
federal aspect (defined in section 3AA). For example, the AFP execute
a search warrant on a premises as part of the investigation of a
Commonwealth serious drug offence. In conducting the search, evidence
relevant to the suspected drug offences (such as banking records) is
seized. It is later discovered that the banking records reveal
evidence of an unrelated offence (such as money-laundering). It is
appropriate that the bank records can be used as evidence to support a
prosecution not only for the drug offences for which they were
originally seized, but also for of the money-laundering offences.
. Proceedings under the Proceeds of Crime Act 1987 or the Proceeds of
Crime Act 2002 or a corresponding law within the meaning of either of
these Acts. For example, it is also appropriate that evidence seized
in relation to a Commonwealth serious drug offence is able to be used
in confiscation proceedings under the Proceeds of Crime Act for
example, to seek an order to restrain the property of the suspect
(section 18, Proceeds of Crime Act 2002).
. Proceedings for the forfeiture of the thing under a law of the
Commonwealth (for example, section 229 of the Customs Act 1901). For
example, if drugs are seized in relation to a Commonwealth serious
drug offence, and those drugs were illegally imported, the inclusion
of this purpose will allow the drugs, and any other evidence obtained,
to be used as evidence in proceedings for the forfeiture of the drugs.
. Proceedings, applications, requests relating to control orders and
preventative detention orders under Part 5.3 of the Criminal Code.
For example, if a search warrant is executed as part of the
investigation of possible terrorism offences, it is appropriate that
any evidence seized during the execution of that warrant be able to be
used to support an application for, or proceedings related to, control
orders and preventative detention orders. This ensures the AFP has
all evidence available to them when taking actions under Part 5.3 to
prevent terrorist attacks.
. Investigating or resolving a complaint or an allegation of misconduct
relating to an exercise of a power or the performance of a function or
duty under this Part; investigating or resolving an AFP conduct or
practices issue (which are dealt with under Part V of the AFP Act);
investigating or resolving a complaint under the Ombudsman Act or the
Privacy Act; and investigating or inquiring into a corruption issue
under the Law Enforcement Integrity Commissioner Act 2006. These uses
are all necessary to ensure the oversight mechanisms in place to
monitor the exercise of police powers are able to operate effectively.
These provisions will also enable the use or sharing for proceedings
in relation to any of the above issues. For example, where the
Integrity Commissioner is investigating an allegation of corruption,
it may be necessary for him or her to be able to access things the
person the subject of the allegation has seized. Similarly, a thing
that has been seized may also be relevant to the investigation of a
complaint under the Privacy Act.
. Deciding whether to institute proceedings, to make an application or
request, or to take any other action mentioned in any of the preceding
paragraphs of this subsection (for example, a document produced under
Division 4B will be able to be used in deciding whether to make an
application for an interim control order under section 104.3 of the
Criminal Code)
. The performance of the functions of the AFP under section 8 of the AFP
Act. The AFP's functions include the provision of police services, the
safeguarding of Commonwealth interests and performing the functions
conferred by the Witness Protection Act 1994 and the Proceeds of Crime
Acts. This purpose will ensure that the AFP have the legislative
authority to use and share seized material, and information and
documents, for all AFP purposes whether or not they are covered by
another item in subsection 3ZQU(1).
Subsection 3ZQU(2) will allow a constable or Commonwealth officer to
use a thing seized under this Part, or the original or a copy of a
document produced under Division 4B, for any other use that is required
or authorised by or under a law of a State or a Territory. Subsection
3ZQU(3) will also allow a constable or Commonwealth officer to make
available to another constable or Commonwealth officer a thing seized
under this Part, or the original or a copy of a document produced under
Division 4B, to be used for any purpose for which the making available
of the thing or document is required or permitted by a law of a State
or Territory. These provisions are necessary to ensure that they do
not override any other provision in State or Territory legislation
which allows seized material to be used for other purposes.
Subsection 3ZQU(4) states that this section will not limit any other
law of the Commonwealth that requires or authorises the use of a
document or other thing, or requires or authorises the making available
(however described) of a document or other thing. This also clarifies
that these provisions, while providing direct legislative authority for
certain uses, will not override any other uses authorised under another
law of the Commonwealth.
All of these purposes for using and sharing things that are seized, and
documents produced, are important in ensuring that law enforcement
agencies are able to operate within a clear framework that enables them
to properly carry out their designated functions.
The use and sharing of things that have been seized, and documents that
have been produced, is also necessary for the proper investigation of
offences which cross jurisdictional boundaries. Serious and organised
criminal activity does not respect State and Territory borders, or the
divide between Commonwealth, State and Territory legislative powers. It is
important that there are appropriate mechanisms in place to allow
evidential material to be used and shared to combat multi-jurisdictional
crime. Under the current provisions, where the AFP discovers that things
they have seized are relevant to a State offence, it is unclear whether
there is scope for the AFP to share the item with the relevant State law
enforcement agency. One mechanism to facilitate sharing of physical items
with State law enforcement agencies is for the AFP to notify the
relevant State law enforcement agency about the seizure. The State law
enforcement agency would then execute a search warrant on the AFP in order
to seize the material. This amendment will ensure there is a direct basis
for the sharing of material between agencies.
Subsection 3ZQU(5) will provide a clear legislative basis for things that
have been seized under Part IAA, or information and documents produced
under Division 4B, to be shared by a constable or Commonwealth officer with
State and Territory law enforcement agencies. State or Territory law
enforcement agency will be defined in subsection 3ZQU(7) as the police
force or police service of a State or Territory, and law enforcement bodies
in New South Wales (Crime Commission, Independent Commission Against
Corruption and Police Integrity Commission), Victoria (Office of Police
Integrity), Queensland (Crime and Misconduct Commission) and Western
Australia (Corruption and Crime Commission). It is appropriate to allow
sharing with these agencies as they are responsible for law enforcement in
the States and Territories. This definition is based on the definition of
'law enforcement agency' in section 6 of the Surveillance Devices Act 2004.
Under subsection 3ZQU(5), a thing that has been seized, or a document (or
copy of a document) that has been produced will be able to be shared for
any or all of the purposes listed in subsection 3ZQU(1)-(3) (described
above) as well as any or all of the following additional purposes (but not
for any other purpose).
. Preventing, investigating or prosecuting an offence against a law of a
State or Territory. It is appropriate to allow evidence to be shared
with State and Territory law enforcement agencies to enable multi-
jurisdictional criminal activity to be properly investigated and
prosecuted. Crimes crossing jurisdictional boundaries are becoming
more prevalent due to increases in information and communication
technology and the increasing sophistication of serious and organised
crime groups.
. Proceedings under a corresponding law for a State or Territory offence
(within the meaning of the Proceeds of Crime Act 1987 or the Proceeds
of Crime Act 2002). These provisions will enable the seized things to
be shared with the appropriate State or Territory law enforcement
agency if needed for confiscation proceedings.
. Proceedings for the forfeiture of things under a law of a State or
Territory.
. Deciding whether to institute proceedings or to take other action
mentioned in any of the above.
Subsection 3ZQU(5) provides a framework governing the purposes for
which constables and Commonwealth officers can share things that are
seized or documents that are produced with State and Territory law
enforcement agencies. While this subsection will regulate the decision
by a constable or Commonwealth officer to share material, it will not
govern the process of how such material would be shared, or how the
State or Territory law enforcement agency then uses the material. This
is because such matters are not within the scope of the Commonwealth's
legislative powers.
Subsection 3ZQU(5) will also allow material to be shared with foreign
agencies that have responsibility for law enforcement, intelligence
gathering, or security for the same purposes outlined for sharing with
State and Territory law enforcement agencies. These provisions will
not enable the item to be shared for the investigation of a foreign
offence. This will continue to be governed by the Mutual Assistance in
Criminal Matters Act 1987.
It is appropriate to allow material to be shared with foreign agencies for
the investigation of Commonwealth, State or Territory offences due to the
international aspect of many modern offences. For example, child
pornography images are often shared by computer users across the globe.
Seizure of a hard drive from a computer can provide evidence of the
distribution and origin of images. The data seized from the hard drive
(including images) may be required to be shared with foreign law
enforcement agencies to determine the origin of images.
Subsection 3ZQU(6) will provide that new Division 4C will not prevent the
Minister from entering into an arrangement (under his or her Executive
power) with a State or Territory Minister to govern the sharing and
disposal of things that are seized, or documents (or copies of documents)
that are produced under Part IAA.
A Ministerial arrangement could be used to set out the responsibilities and
duties of both the sharing and receiving agency, including:
. the process for when something is to be shared
. the relevant record-keeping responsibilities of both jurisdictions,
and
. who bears responsibility for the loss of, or damage to, the shared
material.
New South Wales is the only jurisdiction that currently allows material to
be shared with the Commonwealth under a ministerial arrangement. Section
29A of the Terrorism (Police Powers) Act 2002 (NSW) allows the relevant
New South Wales and Commonwealth Ministers to enter into a ministerial
arrangement allowing:
. New South Wales to share things seized under the Terrorism (Police
Powers) Act with the Commonwealth, if the material may be relevant to
the investigation of an offence against the law of the Commonwealth,
and
. the Commonwealth to share things seized under the law of the
Commonwealth with New South Wales, that may be relevant to the
investigation of an offence against the law of New South Wales.
As the Terrorism (Police Powers) Act does not allow for a unilateral
arrangement, New South Wales could not share material with the Commonwealth
unless a ministerial arrangement is in place which also allows the
Commonwealth to share material with New South Wales.
This subsection will ensure that the Minister will be able to enter into a
ministerial arrangement with a State or Territory, to enable sharing with a
jurisdiction which requires a ministerial arrangement to govern when seized
material can be shared by the particular State or Territory. If a
ministerial arrangement is not required under the State or Territory
legislation, the Commonwealth would still be able to share seized material
with a State or Territory under the legislative provisions in section 3ZQU.
Section 3ZQV
Under section 3L, an executing officer can operate equipment at the search
warrant premises to access data held in, or accessible from, the equipment
at the search warrant premises. Section 3K allows a thing found at the
warrant premises to be moved to another place for examination or processing
to determine if it may be seized under the warrant.
However, if the executing officer seizes or moves the electronic equipment,
it is not clear what can be done with the equipment when it is no longer on
the warrant premises. It is likely that an officer who seizes or moves a
mobile phone, could operate that phone at any time, and at any premises, to
access Short Message Service (SMS) messages which are stored on the memory
contained within the handset. However, it is unclear if officers have the
power to access voicemail messages from the seized or moved mobile phone
that is stored on computer servers held with a telecommunications company.
Subsection 3ZQV(1) will provide that the section will apply to all
electronic seized under Part IAA of the Crimes Act or moved from warrant
premises under section 3K.
Subsection 3ZQV(2) will recognise that an officer who seizes, or moves
under section 3K, any electronic equipment (for example, a mobile phone)
will be able to operate that equipment at any location after it has been
seized or moved for the purpose of determining whether data held on or
accessible from the electronic equipment is evidential material. This is
necessary to ensure officers are able to properly analyse all material
seized or moved from a warrant premises in the same way they would further
analyse documents taken a warrant premises.
Paragraph 3ZQV(3)(a) will allow data held on the electronic equipment to be
accessed. For example, word documents or photos saved on a computer's hard
drive. This paragraph also extends to accessing data on the electronic
equipment at the time of examination or processing that may not have been
held on the electronic equipment at the time the electronic equipment was
seized or moved. For example, this will allow a phone to be operated to
access an SMS that was sent to the phone after the phone was seized or
moved.
Paragraph 3ZQV(3)(b) will also allow data that is not held on the
electronic equipment, but can be accessed by using the electronic
equipment, to be accessed. For example, accessing a voicemail message,
stored on the computer server of a telecommunications company, made prior
to the seizure of a mobile phone.
This paragraph also extends to data that was not accessible by using the
electronic equipment at the time of the electronic equipment was seized or
moved. For example, after a mobile phone is seized (or moved), a voice
mail message is recorded and stored on the computer server of a
telecommunications company. This voicemail message, even though it was
made after the time of seizure, can be lawfully accessed under this
section.
The Telecommunications (Interception and Access) Act 1979 provides a
warrant-based regime for covertly accessing stored communications. For the
purposes of that regime, a stored communication is a communication (such as
a voice mail) that can only be accessed by the parties to the communication
(eg the recipient of the voicemail) or a telecommunications company (upon
whose computer server the voicemail is stored).
Accessing voicemail or other electronic data under section 3ZQV (even where
the voicemail was received after the mobile phone was seized) is different
from accessing a stored communication because the data is being accessed
overtly rather than covertly as the individual knows that his or her mobile
phone has been seized. Section 3Q of the Crimes Act requires the executing
officer, or constable assisting, to provide a receipt of all things seized
under a warrant.
This section will not affect the time limits in section 3K which apply to
how long electronic equipment can be moved for (to be amended in Items 14
and 15).
Section 3ZQW will provide for the payment of compensation for any damage
resulting from the use of electronic equipment under section 3ZQV.
Compensation will be payable for any damage to the electronic equipment
itself, to data recorded on, or accessed from the electronic equipment, or
programs associated with the equipment.
If the owner and the Commonwealth cannot agree on a reasonable level of
compensation, the owner or user can institute court proceedings. The court
will then determine what a reasonable amount of compensation will be in the
circumstances.
This principle is consistent with existing provisions of Part IAA (eg
section 3M) and the Commonwealth's constitutional obligation to pay just
terms for acquisition of property (including loss of property other than
under forfeiture or penalty).
Subdivisions B, C and D
Part IAA currently has three different schemes governing when a thing that
has been seized must be returned. Paragraph 3ZV(1)(a) sets out when things
seized under Part IAA must be returned. Paragraph 3ZV(1)(b) and
subsection 3ZV(2) deal with when things seized under section 3T (Division 3
- searches without warrant in emergency situations) must be returned.
Section 3ZW allows a magistrate to make an order that a thing seized under
section 3T can be retained for a further period. Further, subsections
3UF(4)-(7) provide when a thing that has been seized under Division 3A must
be returned and subsection 3UF(9) and section 3UG deal with applications
and orders for things that are seized to be returned or retained for a
further period (or otherwise dealt with).
Sections 3ZV and 3ZW, subsections 3UF(4)-(7) and (9) and section 3UG will
be repealed by Items 5-7 and 10, and will be replaced by the insertion of
Subdivisions B, C and D under this item.
While generally these new Subdivisions are based on the current provisions
for returning things that are seized (or for making an order allowing
further retention of the thing), there is substantive change relating to
who must return things.
Section 3ZV and subsections 3UF(4)-(7) and (9) impose the obligation to
return the thing that is seized on the constable who seized the thing.
Further, only the constable who seized the thing may apply for an order
under section 3ZW or 3UG that the thing may be retained for a further
period. Constable is defined in subsection 3(1) to mean a member or
special member of the AFP or a member of a State or Territory police force
or police service.
It is not operationally practicable to require the constable who seized the
thing to continue to retain responsibility for the thing until it is
returned. This is because the officer may not continue to be involved with
the operation, or the thing may be required to be used for a different
purpose that the seizing officer is not involved in.
Subdivisions B, C and D will place the obligation to return a thing that
has been seized, and the person who may make applications to magistrates,
on the Commissioner of the AFP. This power will be able to be delegated to
any constable under Item 10 which inserts new s3ZW. A 'constable' can
include a State or Territory police officer (section 3C).
This delegation provision ensures that the officer who is the most
appropriate to handle retention in each case will be tasked with that
responsibility. It is appropriate that there be capacity for the
Commissioner to delegate to State or Territory police, given that they have
access to the Part IAA search and seizure powers and will in some cases
have immediate control over the handling of seized material.
Subdivision B - Returning things seized under Division 2 or 4
Section 3ZQX
Section 3ZQX will replace current section 3ZV (which will be repealed by
Item 10).
Subsection 3ZQX(1) will outline when a thing seized under Divisions 2 or 4
needs to be returned to the person from whom it was seized, or to the owner
of the thing. This subsection will require the Commissioner of the AFP to
take reasonable steps to return the thing: when it is not required, or no
longer required, for a purpose set out in section 3ZQU (also inserted by
this item) or for administrative or judicial review proceedings.
Section 3ZQU, inserted by this item, sets out the purposes for which a
thing that has been seized, or a document produced, under Part IAA can be
used or shared. These purposes include: investigating a Commonwealth,
Territory or State offence with a federal aspect; proceedings under the
Proceeds of Crime Act 1987 or Proceeds of Crime Act 2002; and proceedings
for control orders or preventative detention orders.
The reference to judicial or administrative review proceedings will be
necessary as things seized in certain circumstances may be needed for
administrative review or judicial proceedings outside the scope of uses
that will be listed in new section 3ZQU. An example of where a thing
seized during the execution of a warrant may be needed for administrative
or judicial review proceedings is where a challenge to the execution of the
warrant is brought before a court. In this instance, it may be necessary
to produce the things seized as evidence in the proceedings as proof that
they were properly seized under the warrant.
However, under section 3ZQX, the Commissioner will not have to take
reasonable steps to return the thing that has been seized if the thing:
. may otherwise be retained, destroyed or disposed of under a law or an
order of a court or tribunal of the Commonwealth or of a State or
Territory, or
. is forfeited or forfeitable to the Commonwealth or is the subject of a
dispute as to ownership.
Section 3ZQX differs from section 3ZV in three ways. First, and for the
reasons described above, it imposes the obligation to return the thing that
has been seized on the Commissioner of the AFP rather than the constable
who seized the thing. Second, paragraph 3ZV(1)(a) only requires the thing
to be returned if the reason for its seizure no longer exists or it is
decided that it is not to be used in evidence. Section 3ZQX will require
the thing to be returned when it is not required, or no longer required,
for a purpose set out in section 3ZQU (also inserted by this item) or for
administrative or judicial review proceedings.
Finally, subsection 3ZV(1) does not require the return of the thing if the
thing is forfeited or forfeitable to the Commonwealth or is subject of a
dispute as to ownership. Section 3ZQX includes an additional scenario so
that the thing will not have to be returned if the thing may otherwise be
retained, destroyed or disposed of under a law, or an order of a court or
tribunal, of the Commonwealth, or of a State or Territory.
Subdivision C - Returning things seized under Division 3
Sections 3ZQY and 3ZQZ
Sections 3ZQY and 3ZQZ will replace section 3ZV and 3ZW which will be
repealed by item 10.
Section 3ZQY will require the Commissioner to take reasonable steps to
return a thing seized under Division 3 when one of the following two things
occur:
. the seized thing is not required or no longer required for use or
sharing for one of the purposes in section 3ZQU or for administrative
or judicial review proceedings, or
. 60 days passes after the thing has been seized.
Section 3ZQU, inserted by this item, sets out the purposes for which a
thing that has been seized, or a document produced, under Part IAA can be
used or shared. These purposes include: investigating a Commonwealth,
Territory or State offence with a federal aspect; proceedings under the
Proceeds of Crime Act 1987 or Proceeds of Crime Act 2002; and proceedings
for control orders or preventative detention orders.
The reference to judicial or administrative review proceedings will be
necessary as things seized in certain circumstances may be needed for
administrative review or judicial proceedings outside the scope of uses
that will be listed in new section 3ZQU. An example of where a thing
seized during the execution of a warrant may be needed for administrative
or judicial review proceedings is where a challenge to the execution of the
warrant is brought before a court. In this instance, it may be necessary
to produce the things seized as evidence in the proceedings as proof that
they were properly seized under the warrant.
However, the thing will not have to be returned under section 3ZQY if the
thing:
. is likely to be used in evidence in proceedings in that have commenced
. may otherwise be retained, destroyed or disposed of under a law or an
order of a court or tribunal of the Commonwealth or of a State or
Territory
. may be retained because of an order under section 3ZQZ, or
. is forfeited or forfeitable to the Commonwealth or is the subject of a
dispute as to ownership.
Section 3ZQY will differ from section 3ZV in three ways. First, and for
the reasons described above, it imposes the obligation to return the thing
that has been seized on the Commissioner of the AFP rather than the
constable who seized the thing. Second, paragraph 3ZV(1)(b) only requires
the thing to be returned if the reason for its seizure no longer exists, it
is decided that it is not to be used in evidence or the period of 60 days
after its seizure ends. Section 3ZQY will differ from paragraph 3ZV(1)(b)
in that the thing will have to be returned if it is not required, or no
longer required, for a purpose set out in section 3ZQU (also inserted by
this item) or for administrative or judicial review proceedings.
Finally, subsection 3ZV(2) allows a thing to be retained if the thing is
likely to be used in evidence in proceedings that have commenced; may
otherwise be retained, destroyed or disposed of under a law or an order of
a court or tribunal of the Commonwealth or of a State or Territory; or may
be retained because of an order under section 3ZW. Section 3ZQY will, as
well as the reasons in subsection 3ZV(2), allow a thing to continue to be
retained if the thing is forfeited or forfeitable to the Commonwealth or is
the subject of a dispute as to ownership.
Section 3ZQZ will allow the Commissioner to apply to a Magistrate for an
order to retain the thing beyond the 60 days. The Magistrate will be able
to grant an order allowing the thing to be retained for the period
specified in the order if satisfied that the thing is being used, or is
required to be used for a purpose in section 3ZQU.
Prior to making the application, the Commissioner will have to take
reasonable steps to discover and notify each person who has an interest in
the retention of the thing.
Section 3ZQZ will differ from section 3ZW in two ways. Firstly, section
3ZW only allows the constable who seized the thing to apply for the order.
Section 3ZQZ, for the reasons described above, will allow the Commissioner
of the AFP to make the application. Secondly, section 3ZW only allows a
magistrate to order that a thing continue to be retained if it is necessary
for the purposes of an investigation as to whether an offence has been
committed, or to enable evidence of an offence to be secured for the
purposes of a prosecution. Section 3ZQZ will allow a magistrate to order
that a thing can continue to be retained if satisfied that the thing is
being used, or is required to be used, for a purpose mention in section
3ZQU or for other judicial or administrative review proceedings.
Subdivision D - Returning things seized under Division 3A
Sections 3ZQZA and 3ZQZB
Sections 3ZQZA and 3ZQZB will replace subsections 3UF(4)-(7) and 3UF(9) and
section 3UG which will be repealed by items 5 to 7.
Under section 3ZQZA, the owner of a thing seized under Division 3A will be
able to request the return of a thing. If a request is made, the
Commissioner will be required to take reasonable steps to return the thing
to the owner.
The Commissioner will not be required to take those steps if the
Commissioner suspects on reasonable grounds that the thing, if returned, is
likely to be used in the commission of a terrorist act, a terrorism offence
or other serious offence. Terrorist act will have the same meaning as in
subsection 100.1(1) of the Criminal Code. A terrorism offence is defined
in section 3 of the Crimes Act to mean an offence against Subdivision A of
Division 72 of the Criminal Code or an offence against Part 5.3 of the
Criminal Code. A serious offence is defined in subsection 3C(1) of the
Crimes Act as any Commonwealth or Territory offence or State offence with a
federal aspect that is punishable by 2 or more years imprisonment that is
not a serious terrorism offence (most terrorism offences).
The Commissioner will also not have to take steps to return the thing if
the thing is being used, or is required to be used for a purpose in section
3ZQU or for administrative or judicial review proceedings.
Section 3ZQU, inserted by this item, sets out the purposes for which a
thing that has been seized, or a document produced, under Part IAA can be
used or shared. These purposes include: investigating a Commonwealth,
Territory or State offence with a federal aspect; proceedings under the
Proceeds of Crime Act 1987 or Proceeds of Crime Act 2002; and proceedings
for control orders or preventative detention orders.
The reference to judicial or administrative review proceedings will be
necessary as things seized in certain circumstances may be needed for
administrative review or judicial proceedings outside the scope of uses
that will be listed in new section 3ZQU. An example of where a thing
seized during the execution of a warrant may be needed for administrative
or judicial review proceedings is where a challenge to the execution of the
warrant is brought before a court. In this instance, it may be necessary
to produce the things seized as evidence in the proceedings as proof that
they were properly seized under the warrant.
The Commissioner will also be able to apply to a magistrate for an order
under section 3ZQZB to retain the thing if he or she wishes to retain the
thing beyond 90 days.
Section 3ZQZA will differ from subsection 3UF(4)-(7) and 3UF(9) in two
ways. First, section 3ZQZA will impose the obligation to return the thing
that has been seized on the Commissioner of the AFP rather than on the
police officer responsible for the thing for the time being. This change
is to ensure consistency with Subdivisions B and C which will refer to the
Commissioner. Second, subsections 3UF(6) and (7) outline that the thing
does not need to be returned if the thing is likely to be used in the
commission of a terrorist act or serious offence, or the thing is evidence
of, or relating to, a terrorist act or serious offence. Under section
3ZQZA, a thing will not have to be returned if the Commissioner suspects on
reasonable grounds that the thing, if returned, is likely to be used in the
commission of a terrorist act, a terrorism offence or other serious
offence, or the thing is being used, or is required to be used for a
purpose in section 3ZQU or for administrative or judicial review
proceedings.
Section 3ZQZB will provide that if an application is made, the owner of the
thing has the right to appear and be heard at the application. The
magistrate may order that the thing be retained if the thing is being used,
or is required to be used for a purpose in section 3ZQU or for
administrative or judicial review proceedings.
If the magistrate is satisfied that the thing, if returned, is likely to be
used in the commission of a terrorist act, a terrorism offence or other
serious offence, he or she will be able to order that the thing:
. continue to be retained
. be forfeited to the Commonwealth, or
. be sold or otherwise disposed of.
The magistrate must otherwise order the thing be returned to the owner.
This section will differ from section 3UG in three ways. First, for the
reasons outlined above, the Commissioner will be allowed to make the
application.
Second, under subsection 3UG(3), the magistrate must order the thing be
retained if satisfied that the thing is evidence of, or relating to, a
terrorist act or serious offence. Subsection 3ZQZB(3) will expand this to
require the magistrate to order the thing be retained if satisfied that the
thing is being used, or is required to be used for a purpose in section
3ZQU or for administrative or judicial review proceedings.
Third, subsection 3UG(4) only allows a magistrate to make an order if the
magistrate suspects that, if the thing is returned to the owner, the thing
is likely to be used in the commission of a terrorist act or serious
offence. Subsection 3ZQZB will expand this to also allow an order to be
made if the magistrate suspects that, if the thing is returned to the
owner, the thing is likely to be used in the commission of a terrorism
offence.
Item 10
Part IAA currently has three different schemes governing when a thing that
has been seized must be returned. Two of those schemes are set out in
section 3ZV and section 3ZW. Those provisions will be replaced by Item 9,
and since they will no longer be required, will be repealed by this item.
The new provisions inserted by Item 9 impose obligations on the
Commissioner of the AFP to return things that have been seized under
Part IAA, and allow the Commissioner to make applications to a magistrate
for things to be retained for a further period (or otherwise dealt with).
This item will also insert new 3ZW which will allow the Commissioner to
delegate to a constable any or all of his or her powers under Part IAA.
Constable is defined in subsection 3(1) as a member or special member of
the AFP or a member of the police force or police service of a State or
Territory. The only powers, functions and duties in Part IAA for which the
Commissioner will be responsible are those relating to the use, sharing and
retention of seized material (as inserted by Item 9) and the Commissioner's
related powers in relation to the removal or destruction of data on a
computer under the existing section 3L and new section 3LAA (inserted by
Item 20).
It is necessary to confer the power on the Commissioner because the current
approach of placing the responsibility on the officer who seized the item
is not practicable. The provision will allow the Commissioner to delegate
the power to the officer most appropriately placed to be handling the
returning of the item. This is necessary due to the large amounts of
seized material that police officers deal with. State and Territory police
officers have access to the Part IAA search and seizure powers and will in
some cases have immediate control over the handling of seized material. As
such, it is necessary and appropriate for the Commissioner to be able to
delegate the responsibility of returning seized items to State and
Territory police officer officers (a 'constable' can include a State or
Territory police officer).
Item 11
This item is an application provision that states that the amendments in
this Schedule will apply in relation to things seized, or documents
produced, before, on or after commencement of this Part.
This will allow law enforcement agencies to deal appropriately with
evidence that they have lawfully acquired prior to the commencement of the
amendments.
Part 2 - Use of equipment under warrant
Items 12-15
Where a warrant has been issued under Part IAA, section 3K allows an
executing officer or constable assisting to move a thing to another
place when it is significantly more practicable to do so and there are
reasonable grounds to believe that the thing contains or constitutes
evidential material (subsection 3K(2)). Subsections 3K(3)-(3C) allow
or require the executing officer to do certain things once a thing has
been moved under subsection 3K(2).
Executing officer and constable assisting are both defined in
subsection 3C(1) and, to summarise, refer to the constable responsible
for executing a warrant, a constable assisting in the execution of a
warrant, or a person who is not a constable but who has been authorised
to assist in executing the warrant. Evidential material is defined in
subsection 3C(1) to mean a thing relevant to an indictable or summary
offence, including such a thing in electronic form.
To seize an item, it needs to be relevant to the offence to which the
warrant relates or the executing officer needs to believe it is
relevant to another offence. Seizure of a thing enables officers to
retain that thing for the purposes listed in section 3ZQU (see Item 9).
Moving a thing is a separate process. An officer is not able to use a
thing which has been moved for the purposes in section 3ZQU. They are
only able to examine or process the thing for the purposes of
determining whether or not it is able to be seized.
Item 12
This item will amend subparagraph 3K(2)(a)(ii) so that the executing
officer or constable assisting only needs to have reasonable grounds to
suspect that the thing contains or constitutes evidential material
before being able to move it to another place for further examination.
Requiring an executing officer or constable assisting to determine that
there are reasonable grounds to believe that the thing contains or
constitutes evidential material' is both conceptually and operationally
problematic. The test of 'reasonable grounds to believe' is the same
test that the executing officer or constable assisting must apply in
determining whether to seize a thing that is not specified in the
warrant under paragraph 3F(1)(d). If an executing officer or constable
assisting genuinely holds 'reasonable grounds to believe' that the
thing is evidential material, then it is questionable why they would
elect to move the thing for further analysis under section 3K when they
would already have grounds to seize the thing under section 3F.
A further example of where the 'reasonable grounds to believe' test in
paragraph 3K(2)(a) creates operational difficulties for law enforcement
agencies is where a significant amount of material written in a foreign
language is located. In these situations, the executing officer, due
to their inability to understand its contents, may be unable to form a
belief on reasonable grounds that the material contains or constitutes
evidential material. This amendment will address this difficulty by
allowing the material to be moved if there is a suspicion, on the basis
of other material seized or the context of the execution of the
warrant, that the thing may contain or constitute such material.
Item 13
Subsection 3K(3) requires the executing officer, if practicable to do
so, to:
. inform the occupier of the search warrant premises of the place and
time at which the thing that has been moved under subsection 3K(2) will
be examined or processed (paragraph 3K(3)(a), and
. allow the occupier or his/her representative to be present during the
examination or processing in the same way they are entitled to be
present during the execution of a search warrant (paragraph 3K(b)).
This provision can pose a security concern in some cases by allowing a
person suspected of serious offences, including serious and organised
crime, to be present with forensics and other police staff during an
examination. There is also a risk that sensitive information about
investigative practices and procedures could be revealed.
This item will amend insert new section 3AA which will allow an
executing officer not to comply with the requirements in
paragraphs 3K(a) and (b) if the executing officer believes on
reasonable grounds that having the person present might endanger the
safety of a person or prejudice an investigation or prosecution. This
is similar to subsection 3P(2) under which the right to observe a
search ceases if the person impedes the search.
Item 14 and 15
Subsection 3K(3A) currently provides that a thing can only be moved
under subsection 3K(2) to another place for examination or processing
for a maximum of 72 hours. Subsection 3K(3B) allows an executing
officer to apply to an issuing officer for one or more extensions of
that time. The executing officer must give notice of the application
to extend to the occupier of the premises from where the thing has been
moved and the occupier is entitled to be heard in relation to the
application (subsection 3K(3C)). Issuing officer is defined in
subsection 3C(1) as a magistrate or a justice of the peace or other
person employed in a State or Territory court authorised to issue
search/arrest warrants.
Item 14 will amend subsections 3K(3A) and 3K(3B) to increase the time
period that a thing may be moved to another place for examination from
72 hours to 14 days.
The 72 hour limit for moving a thing for examination or processing
poses operational difficulties where it is necessary to examine a large
volume of both documentary and electronically stored material.
Operational advice from the AFP indicates that the factors that have
directly increased the time required to forensically search and examine
data stored on electronic equipment include:
. an increase in the types of electronic equipment that data is able to
be stored on including 'thumb' and micro drives, personal organisers,
mobile phones, smart cards (including stored value cards and
controlled access cards), flash cards (as found in hand held devices
and digital camera), GPS systems and navigation units
. an increase in the complexity of electronic storage mediums
. an increase in electronic storage capacity, and
. an increase in the prevalence of security software and encryption
technology.
Using current technology, the time required to comprehensively search a
single computer hard drive is approximately one day. However, it is not
uncommon for multiple pieces of electronic equipment to be seized during a
search. For example, a search on a single premise could result in the
seizure of two personal computers, two laptops, two external hard drives
and two thumb drives. It is not uncommon for an average household to have
at least this range of electronic equipment. It would take a computer
forensic team, working exclusively on that project, an entire week to
preview all the data seized (in excess of three terabytes).
The time required to search the data can then be further exacerbated by
factors such as:
. the seizure of material located at multiple premises as part of the
one operation which is often the case in the investigation of serious
and organised crime offences
. the time taken to decrypt an encrypted computer - on average it takes
at least three days to decrypt a computer and longer depending on the
complexity of the encryption system, and
. data or material in a foreign language.
Accordingly, an increase from 72 hours to 14 days is necessary for
electronic equipment to be properly examined.
Extending the period for which a thing may be moved for examination or
processing may potentially cause damage or inconvenience to the
occupier of the premises from where the thing was removed. To mitigate
potential loss, new subsections 3LAA(2) and (4) (inserted by Item 20)
will allow officers to make copies of the thing off-site, so that the
original can be returned to the occupier.
Currently subsection 3K(3B) does not place a cap on the amount of time
an issuing officer can further extend the period of time to examine or
process the thing. Item 15 will insert subsection 3K(3D) which will
limit any extension to 7 days. This will require law enforcement
officers to continue to justify to an issuing officer why it is
necessary for the thing to continue to be retained.
Items 16 - 19
These items will rationalise the various thresholds for examining and
seizing material under Part IAA in a similar way to Item 12.
Item 16
Section 3L(1) currently allows an executing officer or a constable
assisting to operate electronic equipment at the warrant premises to access
data (including data not held at the premises) if he or she believes on
reasonable grounds that the data might constitute evidential material and
the equipment can be operated without damaging it. This test is
operationally problematic. A search warrant provides authority for the
executing officer to search a premises for any evidential material
specified in the warrant. As electronic equipment forms part of the
warrant premises, it is not necessary for an executing officer or constable
assisting to have to form an additional level of belief before they are
able to access/operate/examine electronic equipment.
This item will amend subsection 3L(1) to remove this additional threshold.
The subsection will simply state that when executing a warrant, an
executing officer or a constable assisting to operate electronic equipment
at the warrant premises to access data (including data not held at the
premises).
This will enable an officer, when executing a warrant to search a computer
in the same way a desk or filing cabinet would be searched for documents.
This item will not affect in any way the circumstances in which electronic
equipment, including data, can be seized.
Items 17
Subsection 3L(1A) allows an executing officer to copy data and take it from
the warrant premises if they believe on reasonable grounds that any data
accessed by operating the equipment constitutes evidential material.
Requiring an executing officer or constable assisting to determine that
there are reasonable grounds to believe that the thing contains or
constitutes evidential material' is both conceptually and operationally
problematic. The 'reasonable grounds to believe' test is the same test
that the executing officer or constable assisting must apply in determining
whether a thing that is not specified in the warrant may be seized under
paragraph 3F(1)(d). If an executing officer or constable assisting
genuinely holds 'reasonable grounds to believe' the thing is evidential
material, then it is questionable why they would elect to copy the thing
for further analysis under section 3L(1A) when they would already have
grounds to seize the thing under section 3F.
This item will amend subsection 3L(1A) to change the test for when data
found on electronic equipment can be copied from the reasonable grounds
to believe to a reasonable grounds to suspect test. This amendment
will bring the provision in line with subparagraph 3K(2)(a)(ii) (which
will be amended by Item 12) and simplify and provide consistency across
the Act.
This item will also remove the reference to 'might' in subsection
3L(1A). This change is in addition to lowering the test required in
these provisions from belief to suspect. If the word 'might' was kept
in those provisions, there would still be uncertainty as to how the
test was intended to operate. The change will simplify the operation
of these provisions and provide clarity to officers as to when they are
able to be exercised.
Item 18
Subsection 3L(1A) currently states that if the executing officer or
constable assisting suspects (see Item 17) on reasonable grounds that
any data accessed by operating the electronic equipment might
constitute evidential material, he or she may copy the data to a disk,
tape or other associated device brought to, or at, the premises, and
take the device from the premises.
This item will amend subsection 3L(1A) to clarify that where, after
operating the equipment, the officer suspects (see Item 17) on
reasonable grounds that some data constitutes evidential material, he
or she will be able to copy any or all data accessed by operating the
equipment.
This change will reflect the intention of this provision when it was
inserted into the Crimes Act by the Cybercrime Act 2001. This is
necessary as it is often not practicable for officers to search all the
data for evidential material while at the search premises and to then
copy only the evidential material which is found given the large
amounts of data that can be held on electronic equipment.
The amendment will ensure that officers are able to copy all the data
on a piece of electronic equipment where an initial search of the
equipment uncovers some data which constitutes evidential material.
Item 19
Subsection 3L(4) currently allows an officer to do whatever is necessary to
secure electronic equipment on the warrant premises (for example, by
placing a guard) where they believe on reasonable grounds that:
. evidential material may be accessible by operating electronic
equipment,
. expert assistance is required to operate the equipment, and
. if action is not taken, the material may be destroyed, altered or
otherwise interfered with.
Requiring an executing officer or constable assisting to determine that
there are reasonable grounds to believe that evidential material may be
accessible by operating the equipment is both conceptually and
operationally problematic. The 'reasonable grounds to believe' test is
the same test that the executing officer or constable assisting must
apply in determining whether a thing that is not specified in the
warrant may be seized under paragraph 3F(1)(d). If an executing
officer or constable assisting genuinely holds 'reasonable grounds to
believe' the thing is evidential material, then it is questionable why
they would elect to guard the thing when they would already have
grounds to seize the thing under section 3F.
This Item will amend subsection 3L(4) to change the test for equipment
may be guarded from the reasonable grounds to believe to a reasonable
grounds to suspect test. This amendment will bring the provision in
line with subparagraph 3K(2)(a)(ii) (which will be amended by Item 12),
as well as paragraph 3LA(2)(a) (which will be amended by Item 20) and
simplify and provide consistency across the Act.
Item 20
Section 3L governs the use of electronic equipment at the search
warrant premises. Subsection 3K(2) allows a thing found at the warrant
premises to be moved to another place for examination or processing to
determine if it may be seized under the warrant. However, there is no
equivalent provision to section 3L governing the use of electronic
equipment after it has been moved from the warrant premises under
subsection 3K(2).
Section 3LA currently enables the officer responsible for executing a
warrant to apply to a magistrate for an 'assistance order'. An assistance
order requires a person to provide reasonable assistance to the officer to
access data stored on a computer at the search warrant premises. Officers
may need assistance because data contained on a computer on the search
warrant premises may be encrypted or access to the data on the computer may
be password protected. Once an order is granted, a person is required to
provide such assistance as is reasonable. The type of assistance can vary
from providing passwords, giving details of encryption methods or
explaining how to access the system. It is an offence to fail to comply
with the order.
Section 3LAA
Item 20 will insert new section 3LAA. Section 3LAA is modelled on
section 3L (as amended by Items 16-19) and will set out what the
executing officer or constable assisting are able to do if they move
things for further examination under subsection 3K(2).
Subsection 3LAA(1) will allow an executing officer or constable
assisting to operate equipment moved under subsection 3K(2) to access
data from the equipment. This will include operating electronic
equipment to access data that may not be physically located on that
particular electronic equipment. This is necessary as computers are
able to be networked to other computers and are able to access files
held on other computers. For example, a business' computer networks
can extend across different office locations. Accordingly, it is
critical that law enforcement officers are able to search material
accessible from those computers but located elsewhere.
This subsection will enable the executing officer or constable
assisting to operate equipment after it has been moved under section
3K. The officer needs to have suspected on reasonable grounds that the
equipment contained evidential material for it to be moved under
subsection 3K(2) (which will be amended by Item 12).
Executing officer and constable assisting are both defined in
subsection 3C(1) and, to summarise, refer to the constable responsible
for executing a warrant, a constable assisting in the execution of a
warrant, or a person who is not a constable but who has been authorised
to assist in executing the warrant. Constable is defined in
subsection 3(1) as a member or special member of the AFP or a member of
a State or Territory police force or police service.
Subsection 3LAA(2) will allow the executing officer, or constable
assisting, to copy any or all data to a disk or tape if, after
operating the equipment, they suspect any data constitutes evidential
material.
Data is defined in subsection 3C(1) as information in any form or any
program (or part of a program). Evidential material is defined in
subsection 3C(1) to mean a thing relevant to an indictable or summary
offence, including such a thing in electronic form.
Subsection 3LAA(2) will permit officers to copy any or all data held on
a computer hard drive or data storage device if after an initial search
of the computer, the officer suspects on reasonable grounds that the
equipment might contain evidential material. This is necessary because
it is not practicable to search entire computer hard drives where a
large amount of data is stored. Copying the data will enable the
data/electronic equipment to be returned to the owner.
Subsection 3LAA(3) will impose an obligation on the Commissioner to remove
or destroy the data copied under subsection 3LAA(2) if it is no longer
needed for the purposes specified in section 3ZQU (as inserted by Item 9)
or for administrative or judicial review proceedings. This mirrors the
retention provisions in new subdivisions B, C and D of Division 4C (also
inserted by Item 9) which ensure that seized material (including data) is
held no longer than necessary.
Subsection 3LAA(4) will allow the equipment to be seized if the
executing officer or constable assisting finds, after operating the
equipment, that evidential material is on the equipment. It will also
allow the executing officer or constable assisting to put the material
in documentary form. For example, printing a photo that has been saved
onto the equipment.
Subsection 3LAA(5) is a safeguard for the occupier. It will ensure
that an executing officer or constable assisting is only able to seize
the equipment under subsection 3LAA(4) if it would be impractical to
copy the data from the equipment or put it in documentary form. This
provision will ensure that the occupier is given their equipment back,
where possible, to cause minimal inconvenience to them. However, the
equipment is also able to be seized and not returned to the owner if
possession of the equipment could constitute an offence. An example of
this would include a computer which contains child pornography or child
abuse material, the possession of which is an offence under
section 474.23 of the Criminal Code.
Section 3LA
Operational experience with section 3LA has identified six limitations with
the section:
. there is no provision allowing assistance to be sought to access data
stored in places other than a computer (eg a USB drive)
. there is no provision for seeking assistance when data needs to be
converted into an intelligible form
. there are restrictions on who can apply for an assistance order
. there are restrictions on who can be required to provide assistance
under an order
. there is no provision for assistance when a computer or data has been
seized or otherwise lawfully moved from warrant premises,
. the penalty for failing to comply with an assistance order is not high
enough to deter non-compliance.
Item 20 repeals and replaces section 3LA to address these limitations and
improve the effectiveness of the section.
The changes to section 3LA are designed to ensure criminal investigation
powers in Part IAA are sufficient to overcome challenges posed by
technological developments such as encryption techniques.
Self-incrimination
Requiring a person to provide assistance for officers to access evidence
could be considered to threaten a person's privilege against self-
incrimination. However, section 3LA (as it currently stands or as repealed
and replaced by this item) does not impact on this privilege. The
privilege against self-incrimination arises when a person is required to
provide documents or things, or answer questions that would tend to
incriminate themselves. This is not the case with section 3LA which only
requires a person to provide information which will enable a constable to
properly conduct a search of their computer or data. The officer or
constable still has to conduct the search to determine if there is
evidential material on the computer. The assistance order cannot require a
person to assist an officer or constable to navigate through data on a
computer, or to point to evidential material. The assistance order only
requires the person to provide an officer or constable with the assistance
that is reasonable for them to have access to the data on a computer.
Subsection 3LA(1)
Currently, an executing officer can apply to a magistrate for an order
requiring a specified person to provide information or assistance to the
officer to enable them to access, take copies of and convert into
documentary form any material stored on a computer held in or accessible
from warrant premises.
New subsection 3LA(1) will depart from existing subsection 3LA(1) in the
following ways.
. A constable, rather than the executing officer, will be able to apply
for an assistance order. It is often impracticable for the executing
officer to go from the warrant premises where the computer or data
storage device is located to get an order from a magistrate, and then
back to the premises to execute the order. Also, the executing
officer may not be the most appropriate person to seek the order after
the seizure of a computer or data storage device, as that person may
have changed roles and a different person may be responsible for the
computer or data storage device. Changing the person who may seek an
assistance order to a constable will provide for better operational
effectiveness for the scheme by ensuring that the person applying for
the order is the most appropriate person at the time to do so.
. The source of material that an assistance order can apply to will be
expanded to include data storage devices (including USB drives and
external hard drives), rather than being limited to data held in, or
accessible from, a computer. This change is necessary to keep pace
with changes in technology that allow data to be stored in places
other than a computer on the premises. A related change is that
assistance can now be sought to copy data to a storage device
(although assistance can already be sought to copy the data).
. In addition to being able to seek assistance with converting data in
documentary form, assistance will also be able to be sought to convert
the data into another form intelligible to the constable. For
example, data on a computer or data storage device may be encrypted
and not in a form which is intelligible. This amendment will enable
officers to obtain assistance to convert the encrypted data into a
form that is intelligible to the officer. For example, a computer
that is encrypted, will present information in raw state with random
characters. Such a computer will require the input of a password to
present the data in a non-encrypted state that is intelligible to the
constable. The decrypted data can then be saved in this form.
. An assistance order will compel assistance in accessing data held in,
or accessible from, a computer or data storage device that has been
moved or seized from the warrant premises. This is important because
it may not be clear that assistance will be necessary until after the
computer or data storage device has been moved or seized from the
warrant premises.
Subsection 3LA(2)
Currently, a magistrate can only make an assistance order against a
specified person if satisfied that:
. there are reasonable grounds for suspecting that evidential material
is held in, or is accessible from, the computer or data storage
device
. the specified person is:
o a person who is reasonably suspected of having committed the
offence stated in the relevant warrant
o an owner or lessee of the computer, or
o an employee of the owner or lessee of the computer or a person
who is reasonably suspected of having committed the offence
stated in the relevant warrant, and
. the specified person has relevant knowledge of the computer or
computer network of which the computer forms a part, or knowledge of
the measures applied to protect the data.
There are no changes to the first and third grounds upon which a magistrate
must be satisfied before issuing an assistance order, other than those
changes necessary as a result of expanding the scope of orders to data
storage devices. Further, the assistance order will continue to need to
specify the exact person who is required to provide assistance. It will
not be possible to obtain a generic assistance order which requires the
assistance of any person the constable considers may be able to assist with
accessing the computer or data storage device.
However, new subsection 3LA(2) will expand the classes of persons who can
be required to give assistance or information for accessing material stored
on a computer or a data storage device. An order will now be able to
require assistance from:
. a person engaged under a contract for services by the owner or lessee
of the computer or device
. a person who uses or has used the computer or device, or
. a person who is or was a system administrator for the system including
the computer or device.
The current categories of persons who can be ordered to provide assistance
limit the utility of the provision. In particular, it is possible that the
only person who knows the password or encryption on a computer or data
storage device is neither the suspect nor the owner of the computer or data
storage device. In such cases, an assistance order could not currently be
sought against the person as they do not fall within any of the current
categories.
There may be situations where the constable is not able to locate the
suspect, the owner or an employee of the owner of the computer or data
storage device. However, if another user of the computer or data storage
device can provide the necessary assistance, subsection 3LA(2) will also
allow the constable to require these people to provide assistance. For
example, there may be other people in the owner's household or work area
that use the computer or data storage device and who are able to access the
data on the computer or data storage device.
Subsections 3LA(3) & 3LA(4)
Currently, when and for how long an assistance order is in force is not
specified. New subsections 3LA(3) and 3LA(4) will together clarify that a
constable must obtain separate orders from a magistrate for requiring a
person's assistance before and after the seizure of a computer or data
storage device. Where an order requiring a person to provide assistance is
issued before equipment is seized, the order will only be valid until the
equipment is seized. If the officer requires additional information or
assistance after the equipment is seized, he or she will have to apply to
the magistrate for another order.
After the equipment has been taken from the warrant premises, it is
necessary to require a separate order to be sought, to ensure that the
order specifies the timeframe in which assistance is to be provided, where
it is to be provided and any other conditions the magistrate considers
appropriate.
Subsection 3LA(5)
The current penalty for failing to comply with an assistance order is six
months imprisonment. However, this penalty is not sufficient when compared
to the term of imprisonment the person may be subject to if they were to
provide assistance. For example, as person may possibly be subject to a
longer term of imprisonment if providing assistance (such as the key to
decrypt data) led to the discovery of child pornography images (that may
not have been found because of encryption). It is possible that the person
subject to an order would choose not to comply with the order and be
subject to six months imprisonment, rather than comply with the order and
possibly be subject to a much higher penalty.
The penalty under new subsection 3LA(5) will be two years imprisonment.
Given the serious nature of many of the offences for which an assistance
order may need to be sought, it is appropriate that the penalty for failing
to comply with an assistance order is set at a sufficiently high enough
level. The general defences to criminal responsibility in Part 2.3 of the
Criminal Code will continue to apply to the offence.
Items 21 and 22
Section 3LB ensures that where electronic equipment is operated to
access data not on the warrant premises, the occupier of the other
premises must be notified that the data was accessed.
This item will ensure that where data is accessed under new subsection
3LAA(1) (inserted by Item 20), or will continue to be accessed under
subsections 3LAA(2) or (4) (also inserted by Item 20), the executing
officer or constable assisting will be required to notify the occupier
of the other premises if it is practicable to do so. This amendment
will bring consistency to the provisions, so the same rules will apply
whether the executing officer is accessing the data from a computer on
or off the warrant premises.
Item 23
Section 3M provides for the payment of compensation for damage caused
to equipment as a result of it being operated under sections 3K or 3L.
This item will repeal and replace section 3M, and extend its
application to ensure that if damage is caused to equipment as a result
of it being operated under section 3LAA (inserted by Item 20),
compensation will be available in the same circumstances as
compensation is currently available in relation to sections 3K or 3L.
This item will also extend the scope of section 3M to ensure that
compensation is available if there is damage to data recorded on, or
accessed from the electronic equipment, or programs associated with the
equipment as well as damage to the equipment itself. This is
consistent with new section 3ZQW (inserted by Item 9) which will
provide compensation for damage done to seized electronic equipment
operated under new section 3ZQV (also inserted by Item 9).
Item 24
Section 3N provides for copies of seized things to be provided to the
occupier of the warrant premises or their representative. This item will
amend paragraph 3N(2)(a) of so that an executing officer or constable
assisting is not required to provide a copy of material that has been put
in documentary form in accordance with proposed paragraph 3LAA(4)(b).
Paragraph 3LAA(4)(b) will avoid the need to seize equipment as it will
allow the seizable data to be put into documentary form and then the
documents seized. As the occupier will still have the data on the
electronic equipment, it will not be necessary for the occupier to be
provided with copies of the documents that were seized.
Item 25
This item is an application provision that states that the amendments in
this Part will only apply to warrants issued on or after the commencement
of this item.
However, the amendments to section 3LA will apply only in relation to
orders made after the commencement, even if the data or computer which is
the subject of the order, was seized, or moved from the warrant premises
prior to the commencement of these provisions. This is necessary to allow
law enforcement agencies to deal appropriately with evidence that they have
lawfully acquired.
Schedule 3 - National Witness Protection Program
GENERAL OUTLINE
The Witness Protection Act 1994 provides a statutory basis for the NWPP.
The NWPP provides protection and assistance to people who are assessed as
being in danger because they have given, or have agreed to give, evidence
or a statement on behalf of the Crown in criminal or certain other
proceedings, or because of their relationship to such persons. For
example, if a person gives evidence in a serious or high profile criminal
trial, that person's security, and that of their family, may be at risk as
a result.
The NWPP is maintained by the Commissioner of the AFP, who has
responsibility for deciding whether to include a witness in the NWPP or
provide protection and assistance to a person under the NWPP. The types of
protection and assistance that may be provided under the NWPP include, but
are not limited to:
. providing a person with a new identity
. relocating a person
. assistance with accommodation, and
. assistance with obtaining employment and access to education under a
new identity or in a new location.
The amendments in this Schedule will provide increased protection and
security to: people included in, or provided with assistance under, the
NWPP; members of the AFP who serve in the Witness Protection Unit; and
other AFP employees involved in the operation of the NWPP. The amendments
will make the following key changes to the Act.
. Clarifying the application of the Act to witnesses involved in State
and Territory matters.
. Updating the concept of identity.
. Extending the availability of protection under the NWPP to former
participants and related persons.
. Updating and extending the scope of non-disclosure offences.
Several concepts, and a range of terminology, are relevant to understanding
the current operation of the NWPP, and the affect of the amendments made by
this Schedule.
Scope of the term 'participant'
This Schedule will amend the Act so that protection and assistance can be
provided to former as well as current participants where such action is
appropriate. To give effect to this change, the new definition of
'participant' (someone included in the NWPP) will include a former
participant (someone who has ceased to be included in the NWPP) unless the
contrary intention appears. As a result, most references to a participant
will now include both current and former participants.
As outlined below, the amendments will also allow assistance to be extended
to someone whose relationship with a former participant is such that the
Commissioner is satisfied that it is appropriate to provide that assistance
(under new subsection 13(5) inserted by Item 22).
New subsection 13(6) (also inserted by Item 22) will provide that if the
Commissioner extends assistance or protection to someone other than a
former participant under new subsection 13(5), the Act applies to that
person as if they were a former participant. Therefore, where a reference
in the Act to a participant includes a former participant, it will also
include such a person, unless otherwise specified.
Clarifying the application of the Act to witnesses involved in State and
Territory matters
While the NWPP was established primarily for witnesses in Commonwealth
matters, section 6 of the Act provides the Commissioner with authority to
include witnesses in State or Territory proceedings in the NWPP. However,
there are parts of the Act that refer to a 'Commonwealth participant', and
the definition of that term does not include State or Territory witnesses.
Commonwealth participant is defined at section 3 to mean a participant: in
relation to an offence against a law of the Commonwealth; in relation to a
Royal Commission or another commission or inquiry under a law of the
Commonwealth; in relation to an inquiry instituted by Parliament; or under
section 10 or 10A. Sections 10 and 10A allow the Commissioner to include
people in the NWPP at the request of a foreign law enforcement agency or
the International Criminal Court respectively. This means that potential
gaps exist in the Act in relation to protection of State and Territory
witnesses included in the NWPP, and their obligations under the NWPP.
The amendments will insert definitions of State participant and Territory
participant into the Act (Items 10 and 11 respectively). The
Commonwealth's legislative power differs with respect to Commonwealth and
Territory participants on the one hand, and State participants on the
other. As a result, some provisions of the Act need to distinguish between
these different classes of participant, and may include additional
elements.
Updating the concept of identity under the Act
Currently, the Act distinguishes only between a person's 'former identity'
and their 'new identity'. Such a distinction is based on the assumption
that a person will only be provided with one new identity under the NWPP,
and that their former identity is equivalent to their original identity.
However, while they would only ever be using one identity at a particular
point in time, NWPP participants may be provided with more than one
identity in addition to their original identity. This can happen if the
first identity provided to the person under the NWPP is compromised in some
way. For example, if a person was relocated to a new location under a new
identity, but was subsequently recognised by someone who knew the person
before they were included in the NWPP, that person may need to be provided
with a further new identity.
The amendments will insert definitions of 'original identity', 'current
NWPP identity' and 'former NWPP identity' so that these three classes of
identity can be distinguished for the purposes of the Act. Original
identity will mean the identity of a person at the time immediately before
that person was first provided with an identity under the NWPP. Current
NWPP identity will mean an identity that a participant in the NWPP was
provided under the NWPP and that the participant is actually using at that
time. Former NWPP identity will mean an identity that was provided to a
participant in the NWPP that is no longer being used by the participant.
These definitions are explained in more detail at Items 2, 3 and 7 below.
Amendments will be made throughout the Act to ensure that a participant's
former identity is protected in the same way as their original identity.
Extending protection under the NWPP to former participants and related
persons
Under the current provisions of the Act, once participants have left the
NWPP, they are unable to obtain assistance without undergoing a formal
assessment to rejoin the NWPP. This delay could endanger former
participants. New provisions inserted by Item 22 will allow the
Commissioner to provide assistance to former participants where it is
necessary and reasonable for their protection, without formally re-
including them in the NWPP. These provisions will also allow assistance to
be extended to someone whose relationship with a former participant is such
that the Commissioner is satisfied that it is appropriate to provide that
assistance. This could include relatives, friends or other associates of
the former participant, and would include people the former participant has
met since leaving the program.
Updating and extending the scope of non-disclosure offences
Currently, section 22 of the Act makes it an offence to disclose
information about the identity or location of a person who is or has been a
Commonwealth participant or information that compromises the security of
such a person. This offence does not distinguish between instances where
the person disclosing the information is reckless as to whether there is a
risk that the disclosure will compromise the security of an individual and
those not involving this aspect of potential harm. Section 22 also makes
it an offence for a person who is or has been a Commonwealth participant,
or a person who has undergone assessment for inclusion in the NWPP as such
a participant to disclose certain information about the NWPP. In both
cases, the offences apply only in relation to Commonwealth participants.
The amendments (Item 52) will repeal the existing offences at section 22
and replace them with three separate sets of offences, which will apply to
disclosure of information about:
. Commonwealth or Territory participants, and people undergoing
assessment for inclusion in the NWPP as such participants
. State participants, and people undergoing assessment for inclusion in
the NWPP as such participants, and
. the NWPP.
A higher maximum penalty will apply to offences where the person committing
the offence is reckless as to whether there is a risk that the disclosure
of the information will compromise the security of an individual involved
in the NWPP.
One of the purposes of Item 52 is to extend those offences to apply also to
State and Territory participants. That item will also extend the scope of
the non-disclosure offences in the Act to include disclosures relating to
people undergoing assessment for inclusion in the NWPP. This provides an
important protection for witnesses who may be in a particularly vulnerable
position as they have been identified as potentially being in danger but
have not yet been included in the NWPP.
Witness Protection Act 1994
Item 1
This item will amend the definition of complementary witness protection law
in section 3 to remove the requirement for such laws to be declared by
notice in the Gazette, and instead provides that such laws are those State
or Territory laws that are declared under new section 3AA of the Act
(inserted by Item 13).
Item 2
Item 2 will insert a definition of 'current NWPP identity' in section 3.
While a person would only ever be using one identity at a particular point
in time, NWPP participants may be provided with more than one identity in
addition to their original identity. Current NWPP identity will mean an
identity that a participant in the NWPP was provided under the NWPP and
that is being used by the participant at that time. For example, if a
person entered the NWPP with the identity of 'Mr X' and was given a new
identity of 'Mr Y' under the NWPP, his current NWPP identity would be
'Mr Y'. If the person's identity as 'Mr Y' was compromised in some way and
he was subsequently required to adopt a further new identity of 'Mr Z',
this would become his current NWPP identity.
Item 3
Item 3 will insert a definition of 'former NWPP identity' in section 3.
While a person would only ever be using one identity at a particular point
in time, NWPP participants may be provided with more than one identity in
addition to their original identity. Former NWPP identity will mean an
identity that was provided to a participant, but that is not being used by
the participant at the time. For example, if 'Mr X' was given the new
identity of 'Mr Y' under the NWPP and was then required to adopt the
further new identity of 'Mr Z', his former NWPP identity would be 'Mr Y'.
This definition ensures that all identities previously held by the
participant, and not just the participant's original identity, will be
protected under the Act.
Item 4
The Bill will amend the Act so that protection and assistance can be
provided to former as well as current participants where such action is
appropriate (see Item 22). To give effect to this change, the new
definition of 'participant' will include former participants in the NWPP
unless the contrary intention appears. Item 4 will insert a definition of
'former participant' in section 3. Former participant will mean a person
who was previously included in the NWPP but is no longer included. This
definition is required so that in instances where a provision is to apply
only to current or only to former participants, that can be made clear.
Item 5
Item 5 will insert a definition of 'Immigration Secretary' in section 3.
Immigration Secretary will mean the Secretary of the Department
administered by the Minister who administers the Migration Act 1958. This
definition is necessary for provisions in the Act (as amended by Items 22
and 44) which deal with the notification of the Immigration Secretary where
certain actions are taken in relation to foreign nationals included in the
NWPP at the request of foreign law enforcement agencies and persons
included in the NWPP at the request of the International Criminal Court
under sections 10 and 10A.
Item 6
Item 6 will insert a definition of 'information' in section 3.
Information, where it relates to the identity of a person, will include
information about a person's appearance, voice quality or accent,
mannerisms, address or location, particular skills and qualifications and
personal history. The definition will clarify but not limit what is meant
by information in relation to the identity of a participant. This
amendment will make it clear that the concept of identity under the Act
encompasses not just a name but all aspects of an identity.
Item 7
Item 7 will insert a definition of 'original identity' in section 3.
Original identity will mean the identity of a person at the time
immediately before he or she was first provided with an identity under the
NWPP. If a person has lawfully changed their name since birth (for
example, due to marriage, divorce or via a legal name change), his or her
original identity will be the latest identity he or she had before first
being provided with an identity under the NWPP. For example, a person
could be born 'Ms Y' and change her name to 'Mrs X' after marriage. If
that person was then provided with a new identity under the NWPP, her
original identity would be 'Mrs X'.
Item 8
Item 8 will amend the definition of 'participant' in section 3.
Participant will now be defined to mean a person included in the NWPP, and
will include a former participant, except where a particular provision
specifies otherwise. This Schedule will amend the Act so that protection
and assistance can be provided to former as well as current participants
where it is appropriate to do so. Amending the definition of participant
will remove the need to refer separately to current participants and former
participants in each provision that will apply to both.
A reference in the Act to a participant includes:
. a Commonwealth participant (including a former participant unless
otherwise specified)
. a Territory participant (including a former participant unless
otherwise specified), and
. a State participant (including a former participant unless otherwise
specified).
Item 9
New section 3AB (inserted by Item 13) will define what is meant by 'State
offence that has a federal aspect' for the purposes of the Act. Item 9
will insert a cross-reference to section 3AB in section 3, which contains
definitions that apply generally throughout the Act.
Items 10 and 11
Items 10 and 11 will insert definitions of 'State participant' and
'Territory participant' respectively into section 3. While the NWPP was
established primarily for witnesses in Commonwealth matters, section 6 of
the Act provides the Commissioner with authority to include witnesses in
State or Territory proceedings in the NWPP. The Commonwealth's legislative
power differs with respect to Commonwealth and Territory participants on
the one hand, and State participants on the other. As a result, some
provisions of the Act distinguish between these different classes of
participant (for example, the offence provisions at new sections 22
and 22A, inserted by Item 52), and may include additional elements.
State participant will mean a participant included in the NWPP in relation
to an offence against a law of a State that has a federal aspect, a law of
a State that does not have a federal aspect or a commission of inquiry
under a law of a State.
Territory participant will mean a participant in relation to an offence
against a law of a Territory or a commission or inquiry under a law of a
Territory.
Item 12
Item 12 makes a technical amendment to clarify the scope of the definition
of 'witness' for the purposes of the Act. Witness is currently defined in
section 3 to include several classes of people at paragraphs (a), (b), (c)
and (d). The scope of paragraph (e) as currently drafted is ambiguous due
to a reference to 'such a person', which could apply either to a person
referred to in paragraph (d) only, or to a person referred to in any of the
preceding paragraphs. Paragraph (e) as amended will clearly extend the
definition of witness to include people who, because of their relationship
to, or association with, a person referred to in paragraph (a), (b), (c)
and (d), may require protection or other assistance under the NWPP.
Item 13
Item 13 will insert definitions of 'complementary witness protection law'
and 'State offence that has a federal aspect' for the purposes of the Act.
The current definition of complementary witness protection law in section 3
of the Act provides that the Minister may declare, by notice published in
the Commonwealth of Australia Gazette, that a law of a State or Territory
that makes provision for the protection of witnesses is a 'complementary
witness protection law'. The effect of such a declaration is to allow the
Commissioner to arrange or provide protection and other assistance for
witnesses under the complementary laws. For example, it allows the AFP to
apply to the court of a State with a declared complementary witness
protection law for the issue of State identity documents for a witness's
new identity.
Declarations under section 3 have been made in relation to all States and
Territories. The declarations made under the existing section are not
'legislative instruments' for the purposes of the Legislative Instruments
Act 2003. Under the Legislative Instruments Act, legislative instruments
must be registered on the Federal Register of Legislative Instruments
(FRLI) in order for them to be valid and enforceable by or against the
Commonwealth, or by or against another person or body. As the declarations
made under the Act are not legislative instruments, they are not registered
on FRLI. Instead they appear only in the Gazette.
FRLI is designed to improve public access to legislative instruments and
establish mechanisms to ensure that legislative instruments are
periodically reviewed and, if they no longer have a continuing purpose,
repealed. To facilitate straightforward public access to declarations made
under the Act, this item will insert new section 3AA into the Act.
Section 3AA will allow the Minister to declare that a State or Territory
law is a 'complementary witness protection law' by legislative instrument.
As a consequence, paragraph 3(b) of the definition of complementary witness
protection law will be amended by Item 1 to remove the requirement for such
laws to be declared by notice in the Gazette, and instead provide that such
laws are those State or Territory laws that are declared under new
section 3AA of the Act (inserted by this item).
Item 10 will insert a definition of State participant into section 3 that
will include a participant included in the NWPP in relation to an offence
against a law of a State that has a federal aspect. To support that
definition, this item will insert new section 3AB, which will provide a
definition of 'State offence that has a federal aspect' for the purposes of
the Act. State offences with a federal aspect will be defined by reference
to offences that would be taken to be such under the Australian Federal
Police Act 1979 or the Australian Crime Commission Act 2002.
Item 14
Section 8 contains provisions relating to the process for including a
witness in the NWPP. Item 8 will amend the definition of participant in
section 3 to include a former participant unless the contrary appears.
Item 4 will insert a definition of former participant into section 3 to
mean a person who has ceased to be included in the NWPP. However, in
section 8 the only references to a participant concern situations in which
a witness who was included in the NWPP when he or she was under 18 years of
age and remains in the NWPP until after they turn 18 may be required to
sign a new memorandum of understanding. These references could not
logically include former participants. For this reason, this item will
provide that references to participants in section 8 do not include former
participants.
Item 15
To be included in the NWPP, a witness must enter into a memorandum of
understanding with the Commissioner. Section 9 sets out conditions to
apply to a memorandum of understanding between the Commissioner and a
participant. Item 8 will amend the definition of participant in section 3
to include a former participant unless the contrary appears. Item 4 will
insert a definition of former participant into section 3 to mean a person
who has ceased to be included in the NWPP. However, a former participant
would not be required to enter into a memorandum of understanding. For this
reason, this item will provide that references to participants in section 9
do not include former participants.
This item will also provide that despite references to participant in
section 9 not including former participants, obligations under a memorandum
of understanding that continue to apply after a participant has left the
NWPP are not affected.
Items 16 - 19
Section 11 requires the Commissioner to maintain a Register of NWPP
participants, and sets out the details to be included in that Register.
Item 16
Item 16 will amend paragraph 11(3)(b) to clarify that the Commissioner must
include in the Register the names for each new identity a participant has
been provided under the NWPP. Though only one identity would be in use at
a particular point in time, NWPP participants may be provided with more
than one identity in addition to their original identity. For instance, if
a participant's security under an identity provided under the NWPP is
compromised, they may be provided with another new identity. This
amendment is a consequence of Items 2 and 3 which will insert new
definitions of current NWPP identity and former NWPP identity into
section 3.
Item 17
Subsection 11(3) sets out details the Commissioner is required to include
in a Register of NWPP participants. The new definition of participant in
section 3 (inserted by Item 8) will expressly include former participants
unless the contrary intention appears. Former participant will be defined
in section 3 (inserted by Item 4) to mean a person who has ceased to be
included in the NWPP. As paragraph 11(3)(e) currently refers to a person
ceasing to be a participant, Item 17 makes a technical amendment to that
paragraph to accommodate the new definition of participant. Item 17 makes
no substantive change to the information that must be recorded on the
Register by the Commissioner under section 11.
Item 18
Subsection 11(5) sets out information the Commissioner is required to keep
in conjunction with a Register of NWPP participants. Included in that list
are documents returned by a participant to the Commissioner when a
participant's original identity or a former NWPP is being restored under
section 19. New subsections will be inserted at section 19 by Item 49,
requiring an update to a cross-reference at subsection 11(5). Item 18 will
correct and update the existing cross-reference to section 19, which is to
subsection 19(2), but should have been to 19(5). The updated cross-
reference will be to subsection 19(6).
Item 19
A definition of former participant will be inserted into section 3 by
Item 4 to mean a person who has ceased to be included in the NWPP. Item 8
will amend the definition of participant in section 3 to include a former
participant, unless the contrary intention appears.
New subsection 13(5) (inserted by Item 22) will allow the Commissioner to
provide assistance to a former participant or any other person whose
relationship with a former participant is such that the Commissioner is
satisfied that it is appropriate to take those actions.
New subsection 13(6) (also inserted by Item 22) will provide that if the
Commissioner extends assistance or protection to someone other than a
former participant under new subsection 13(5), the Act applies to that
person as if they were a former participant. This will mean that unless
otherwise specified, references to a former participant will also include
such a person.
This item will insert new subsection 11(6) to clarify that in section 11,
references to 'participant' or 'former participant' do not include a person
who is a former participant only because of the operation of
subsection 13(6). That is, they do not apply to a person, except for a
former participant, to whom the Commissioner has provided assistance under
new subsection 13(5).
Items 20 - 22
Section 13 provides that the Commissioner may take actions that he or she
considers necessary and reasonable to protect a witness's safety and
welfare while also protecting the safety of the Commissioner, a Deputy
Commissioner, AFP employees and special members of the Australian Federal
Police.
Item 20
In the list of actions at subsection 13(2), paragraph 13(2)(b) concerns
permitting a person who holds a designated position to use an assumed name
in carrying out their duties in relation to the NWPP and carry
documentation supporting the assumed name. 'Designated person' is defined
at section 3, and includes the Commissioner, a Deputy Commissioner and
certain AFP employees and special members of the Australian Federal Police
whose duties relate to the NWPP.
Part 1AC of the Crimes Act makes provision for the acquisition and use of
assumed identities by officers of certain Commonwealth agencies. Item 20
will repeal existing paragraph 13(2)(b) and replace it with a new paragraph
to replace references to using an assumed name with a reference to
acquiring and using assumed identities in accordance with Part 1AC of the
Crimes Act.
Item 21
Subsection 13(3) prohibits the Commissioner from obtaining documentation
for a witness that represents the witness as having qualifications he or
she does not have or as being entitled to benefits to which the witness
would not be entitled if he or she were not included in the NWPP.
Item 21 will amend paragraph 13(3)(b) to extend it to witnesses who have
not yet been included in the NWPP. This amendment will ensure the same
prohibition applies to both participants and witnesses being assessed for
inclusion in the NWPP. As the Commissioner may take actions under
section 13 to protect a witness undergoing assessment, this amendment
brings the application of paragraph 13(3)(b) into line with the rest of
that section.
Item 22
The operation of the current definitions in the Act relevant to section 13
precludes assistance from being provided to persons who have left the NWPP.
There can be circumstances, however, where a witness requires further
protection or assistance after leaving the NWPP. For example, a former
participant may need to be relocated if he or she is recognised by someone
who was aware of his or her original identity. Under the current
provisions of the Act, once participants have left the NWPP, they are
unable to obtain assistance without undergoing a formal assessment to
rejoin the NWPP. This delay could endanger former participants. Item 22
will insert new subsection 13(5) to enable the Commissioner to provide
assistance to former participants where it is necessary and reasonable for
their protection. This amendment will also make it easier for former
participants to access certain documents relating to a NWPP identity. For
example, if a former participant needs to replace a lost identity document,
they would not need to be re-included in the NWPP to do so.
A definition of former participant will be inserted into section 3 by
Item 4 to mean a person who has ceased to be included in the NWPP. Item 8
will amend the definition of participant in section 3 to include a former
participant, unless the contrary intention appears. However, because the
protection and assistance under section 13 is available to both current
participants and witnesses undergoing assessment for inclusion in the NWPP
who are not yet participants, it is not appropriate to rely on the expanded
definition of participant in order to extend assistance to former
participants. Accordingly, the definition of participant, as inserted by
Item 8, will not apply to section 13. Instead, the amendments made by this
item are necessary to extend the application of section 13 to former
participants.
New subsection 13(5) will also allow assistance to be extended to someone
whose relationship with a former participant is such that the Commissioner
is satisfied that it is appropriate to provide that assistance, as if that
person were a witness included in the NWPP. This could include relatives,
friends or other associates of the former participant, and would include
people the former participant has met since leaving the program. For
example, if a former participant decides to marry, their spouse may at some
stage require protection and assistance as a result of their relationship
with the former participant. This is consistent with the current operation
of the Act which, through the definition of witness in section 3, extends
assistance and protection to people who, because of their relationship to,
or association with, a witness as otherwise described in that definition
(eg current participants), may require protection or other assistance under
the NWPP.
In the case of both former participants and others to whom new
subsection 13(5) applies, the Commissioner may only provide assistance if
he or she considers it is necessary and reasonable for the person's
protection and he or she has assessed the suitability of providing the
assistance. This will ensure that such assistance is only provided in
appropriate circumstances.
Item 22 will also insert new subsection 13(6), which provides that if the
Commissioner extends assistance or protection to someone other than a
former participant under new subsection 13(5), the Act applies to that
person as if they were a former participant. This amendment is necessary
to ensure that people given assistance or protection under new
subsection 13(5) are afforded the same rights and are subject to the same
obligations as others who receive assistance under the NWPP.
Item 22 will also insert new subsection 13(7) which will require the
Commissioner to give the Immigration Secretary written notice when he or
she first takes action under subsection 13(5) in respect of a former
participant who was a participant under section 10 or 10A of the Act.
Section 10 allows the Commissioner to include a foreign national in the
NWPP at the request of a foreign law enforcement agency. Section 10A
allows the Commissioner to include a person in the NWPP at the request of
the International Criminal Court. Under current section 18, the
Commissioner must notify the Immigration Secretary if a decision is made
under that section to terminate assistance to a person included in the NWPP
under section 10 or 10A. It is consistent to impose a similar requirement
where a decision is made under subsection 13(5) to reinstate some form of
assistance to such a person. A definition of Immigration Secretary will be
inserted into section 3 by Item 5.
Items 23 - 24
Items 23 and 24 make technical amendments that are necessary because of the
changes that will be made to definitions in section 3 by Items 2, 3 and 7.
These changes will differentiate between a participant's original identity,
current NWPP identity and former NWPP identity.
Item 23 will replace the reference to 'identity' in paragraph 14(b)(ii)
with a reference to 'original identity'.
Item 24 will replace the reference to 'former identity' at subsection 15(5)
with a reference to 'original identity' or a 'former NWPP identity'.
Items 25 - 30
Section 16 currently provides that a participant given a new identity under
the NWPP who would otherwise be required to disclose his or her former
identity by or under a law of the Commonwealth is not required to do so if
he or she has permission from the Commissioner, in the prescribed form, not
to disclose his or her former identity for that particular purpose.
Items 25 to 30 will replace references throughout section 16 to a
participant's former identity with references to a participant's 'original
identity' or a 'former NWPP identity', and a reference to a participant's
new identity with a reference to a participant's 'current NWPP identity'.
These amendments are required because the proposed changes to the
definitions in section 3 of the Act made by Items 2, 3 and 7 will
differentiate between a participant's original identity, current NWPP
identity and former NWPP identity.
Items 25 to 28 and 30 will clarify that current references to former
identity will now apply to the identity the participant had at the time
immediately before he or she was first provided with an identity under the
NWPP and any identity provided to the participant under the NWPP that the
participant is not currently using.
Item 29 will clarify that the current reference to new identity will now
apply only to an identity provided to a participant under the NWPP that is
being used by the participant at that time.
Item 31
Item 31 will repeal current subsection 16(6), which states that, for the
purposes of section 16, a 'participant' includes a person who has been
given a new identity under the NWPP but is no longer a participant.
Subsection 16(6) will no longer be necessary because the amended definition
of participant in section 3 (inserted by Item 8) will encompass a former
participant unless the contrary intention appears. A definition of former
participant will be inserted into section 3 by Item 4 to mean a person who
has ceased to be included in the NWPP. References in section 16 to
participants will therefore automatically apply to former participants.
Item 32
Item 32 will replace the reference to 'former identity' at section 17 with
a reference to 'original identity' or any 'former NWPP identity'. This
amendment is required because proposed new definitions in section 3
(inserted by Items 2, 3 and 7) will differentiate between a participant's
original identity, current NWPP identity and former NWPP identity. This
item will clarify that section 17 applies with respect to the participant's
original identity (that which the person had at the time immediately before
he or she was first provided with an identity under the NWPP) and any
identity provided to the participant under the NWPP that the participant is
not currently using.
Items 33 - 44
Section 18 is about decisions related to, and the process for, terminating
assistance provided to a person under the NWPP. Currently, section 18
conflates termination of protection and assistance under the NWPP with
termination of a participant's inclusion in the NWPP. New
subsection 13(5), inserted by Item 22, will provide that the Commissioner
may provide assistance to a former participant or any other person whose
relationship with a former participant is such that the Commissioner is
satisfied that it is appropriate to take those actions. That amendment
requires separate provisions to be in place concerning terminating a
participant's inclusion in the NWPP and terminating assistance provided to
a person under subsection 13(5).
Items 33-36 will amend subsections 18(1) and 18(2) so that they apply only
to circumstances where the Commissioner must or may terminate a
participant's inclusion in the NWPP.
Item 37 will insert new subsection 18(2A) to apply to circumstances where
the Commissioner must or may terminate assistance provided to a person
(including a former participant) under new subsection 13(5). Like
subsection 18(1), subsection 18(2A) will provide that assistance must be
terminated if a person requests in writing that it be terminated. It will
also list circumstances where assistance may be terminated by the
Commissioner, based on the circumstances listed for the similar existing
provision at subsection 18(1) that could also apply to people provided with
assistance under new subsection 13(5). These include that the person's
conduct is likely to compromise the integrity of the NWPP and that the
situation that gave rise to the need for protection and assistance for the
person no longer exists. As with decisions under subsection 18(1)(b),
there will be an obligation for the Deputy Commissioner to take reasonable
steps to notify the person to whom assistance is being terminated under new
paragraph 18(2A)(b) of the decision. This requirement will be included in
new subsection 18(2B), also inserted by Item 37.
Existing subsections 18(3) to 18(6) set out the process for review of
decisions made under paragraph 18(1)(b), when such decisions take effect
and a requirement for the Commissioner to notify the Immigration Secretary
of a decision under that paragraph in relation to a participant included
under section 10 or 10A of the Act. Items 38-44 will amend these
subsections so that they apply in the same way to decisions under new
paragraph 18(2A)(b). These amendments include amending references to
'participant' with references to 'person', as references in section 18 to a
'participant' will not include a former participant. See Item 45 below.
Item 45
Section 18 as amended by Items 33 to 44 will outline when the Commissioner
must or may terminate a participant's inclusion in the NWPP or assistance
provided to a person under new subsection 13(5), and the process to be
followed in order to take such action. Participant will be defined at
section 3, by Item 8, to include a former participant unless the contrary
appears. A definition of former participant will be inserted into
section 3 by Item 4 to mean a person who has ceased to be included in the
NWPP. However, in section 18 the only references to a participant relate
to the termination of a participant's inclusion in the NWPP. These
references could not logically apply to former participants. For this
reason, Item 45 will provide that references to participants in section 8
do not include former participants.
Item 46
Section 19 allows a Deputy Commissioner to restore a person's previous
identity, and outlines the process to be followed in order to take such
action. Subsection 19(1) currently allows the Commissioner to restore a
former identity of a former participant, but not a former identity of a
(current) participant. There are instances where it may be appropriate to
restore a former identity of a witness who is still included in the NWPP.
Item 46 will repeal existing subsection 19(1) and replace it with a new
subsection to allow a Deputy Commissioner the discretion to restore a
previous identity in such circumstances without first having to terminate
the participant's inclusion in the NWPP. As the new definition of
participant at section 3 (inserted by Item 8) will expressly include former
participants unless the contrary intention appears, the new subsection will
cover both current and former participants. A definition of former
participant will be inserted into section 3 by Item 4 to mean a person who
has ceased to be included in the NWPP.
Proposed changes to the definitions in section 3 made by Items 2, 3 and 5
will differentiate between a participant's original identity, current NWPP
identity and former NWPP identity. New subsection 19(1) will be worded
consistently with those amendments.
This item will ensure that where it is proposed to terminate a
participant's inclusion in the NWPP, the participant's original or former
NWPP identity may be restored prior to assistance under the NWPP being
terminated. It will also provide flexibility for a Deputy Commissioner to
restore a participant's original or former NWPP identity where it not
proposed to terminate a participant's inclusion if circumstances arise
where it is appropriate to do so.
While in most cases a Deputy Commissioner acting under subsection 19(1)
would be restoring a participant's original identity (that which the person
had at the time immediately before he or she was first provided with an
identity under the NWPP), the new subsection will provide flexibility by
allowing restoration of either a participant's original identity or any
former NWPP identity of the participant. Former NWPP identity will be
defined at section 3 by Item 3 to mean any identity provided to the
participant under the NWPP that the participant is not currently using.
Item 47
Item 47 will remove the reference to 'former' in subsection 19(2). This is
a technical amendment required because:
. Item 46 will repeal and replace subsection 19(1) so that section 19
applies to current as well as former participants in the NWPP, and
. the proposed new section 3 definition of participant (inserted by
Item 8) expressly includes former participants unless the contrary
intention appears.
Item 48
Item 48 will replace references to a former participant with references to
a participant and a reference to a participant's 'former identity' with a
reference to the 'original identity' or any 'former NWPP identity' of the
participant in subsection 19(3). This is a technical amendment required
for the following reasons.
. Item 46 will repeal and replace subsection 19(1) so that section 19
applies to current as well as former participants in the NWPP.
. The proposed new section 3 definition of participant (inserted by
Item 8) expressly includes former participants unless the contrary
intention appears.
. Proposed changes to the definitions in section 3 made by Items 2, 3
and 7 will differentiate between a participant's original identity,
current NWPP identity and former NWPP identity. This item will
clarify that the current reference to former identity at
subsection 19(3) will now encompass both the participant's original
identity (that which the person had at the time immediately before he
or she was first provided with an identity under the NWPP) and any
identity provided to the participant under the NWPP that the
participant is not currently using.
Item 49
Proposed changes to the definitions in section 3 made by Items 2, 3 and 7
will differentiate between a participant's original identity, current NWPP
identity and former NWPP identity. Items 46 to 48 will amend section 19 so
that it will apply to current as well as former participants and that in
each case, either a person's original identity or a former NWPP identity
may be restored. The new subsections to be inserted by Item 49 are worded
consistently with those amendments.
Section 19 as amended by Items 46 to 48 will allow a Deputy Commissioner to
restore a person's original identity or a former NWPP identity and outlines
the process to be followed where such action is to be taken. Under
existing subsection 19(5) it is an offence to refuse or fail to return
documents in response to a notice issued under that subsection as a result
of action taken under section 19. Existing subsection 19(6) provides that
the offence does not apply if the person has a reasonable excuse.
Item 49 will repeal existing subsections 19(5) and 19(6) and insert three
new subsections that will set out separately:
. that if the Commissioner or a Deputy Commissioner takes action under
section 19, he or she may give a notice to the participant concerned
(new subsection 19(5))
. that the notice must be in writing, and what the notice must require
of the participant (new subsection 19(6)), and
. the offence that applies if a person is given such a notice and
refuses or fails to comply with the notice (new subsection 19(7)).
A notice under new subsection 19(6) must require the participant to return
to the Commissioner all documents provided to him or her that relate to
their current NWPP identity or any former NWPP identity that is not being
restored, within 10 days of the notice being given. The purposes of the
notice are to ensure that a person does not retain documentation relating
to an identity they will no longer be using and prevent illegitimate use of
such documents.
Under new subsection 19(7) it will be an offence if a person is given a
notice requiring them to return documents to the Commissioner under
subsection 19(6) and the person refuses or fails to comply with the notice.
The offence will be punishable by a maximum penalty of ten penalty units.
This is the same penalty that applies to the offence at existing
subsection 19(5).
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 he or she had been given a
notice under subsection 19(6), and
. intentionally refused or failed to comply with the notice.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware of a substantial risk that
the circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take the risk.
The defence of reasonable excuse that is available for the current offence
will not be available for the revised offence at new subsection 19(7).
This defence is open-ended and creates uncertainty for the prosecution as
to what defence might be raised. Exceptions to criminal responsibility
thought to be caught by the defence of reasonable excuse are generally
covered by the general defences in Part 2.3 of the Criminal Code, which
include mistake or ignorance of fact and sudden or extraordinary emergency.
The offence at new subsection 19(7) will rely on the general defences
available under the Criminal Code.
Item 50
Section 20 applies if a participant has been provided with a new identity
or has been relocated under the NWPP, and is later under investigation for,
or has been arrested for or charged with an offence that has a maximum
penalty of more than one year. If an approved authority, as defined at
section 3 of the Act, or a member or special member of the Australian
Federal Police, notifies the Commissioner of the investigation, arrest or
charge, the Commissioner may take certain actions. These actions include,
at current paragraph 20(c), releasing the new identity or new location of
the participant to the approved authority or member.
Item 50 will amend paragraph 20(c) to refer instead to the participant's
current NWPP identity or current location. Current NWPP identity will be
defined at section 3 (by Item 2) to mean an identity that a participant in
the NWPP was provided under the NWPP and that the participant is actually
using at that time. This item will clarify that section 20 refers to the
identity currently being used by a participant or the location at which the
participant is located at the time.
Item 51
Section 21 protects officers involved in the operation of the NWPP from
liability in relation to any action, suit or proceedings in relation to
something done in good faith in the exercise or purported exercise of a
power conferred by the Act. Item 51 will amend section 21 to clarify that
this protection extends also to the performance or purported performance of
a function conferred or a duty imposed by the Act. This will ensure that
officers involved in the operation of the NWPP are provided adequate
protection, as not all actions taken under the Act may be construed to be
exercises of power.
Item 52
Item 52 will repeal the existing non-disclosure offences at section 22 and
replace them with three separate sets of offences, which will apply to
disclosure of information about:
. Commonwealth or Territory participants, and people undergoing
assessment for inclusion in the NWPP as such participants (new
section 22)
. State participants, and people undergoing assessment for inclusion in
the NWPP as such participants (new section 22A), and
. the NWPP (new section 22B).
These offences, and the penalties attached, are designed to protect the
safety and welfare of NWPP participants, witnesses that are undergoing
assessment for inclusion in the NWPP as participants and officers involved
in administering the NWPP, as well as the effective operation of the NWPP.
Section 6 provides the Commissioner with authority to include witnesses in
State or Territory proceedings in the NWPP. However, the offences
currently at section 22 apply only to Commonwealth participants. One of
the purposes of Item 52 is to extend those offences to apply also to State
and Territory participants. This will ensure that information about the
original identity or a former NWPP identity of a participant, or
information that could reveal that the person is a participant, is
appropriately protected.
Offences relating to disclosure of information about participants or people
undergoing assessment for inclusion as participants will be separated into
offences relating to Commonwealth or Territory participants and offences
relating to State participants. This is because the Commonwealth's
legislative power with respect to these classes of participant differs.
Item 52 will also extend the scope of the non-disclosure offences to
include disclosures relating to people undergoing assessment for inclusion
in the NWPP. This provides an important protection for witnesses who may
be in a particularly vulnerable position as they have been identified as
potentially being in danger but have not yet been included in the NWPP.
Section 22 Offences relating to Commonwealth or Territory participants
New section 22 will create two offences relating to disclosures about
Commonwealth or Territory participants and two equivalent offences relating
to disclosure of information about people undergoing assessment for
inclusion in the NWPP as such participants.
Under new subsection 22(1) it will be an offence for a person to disclose
information about a Commonwealth or Territory participant where (if the
participant has a current NWPP identity) the information is about the
original identity or a former NWPP identity of the participant and/or (in
any case) could reveal that the individual is a participant. Information,
in relation to the identity of a person, will be defined at section 3 (by
Item 6) and will include, for example, information in relation to a
person's appearance and address or location. 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 paragraphs (a), (b) and (d) of the offence. To
establish this offence, the prosecution will need to prove beyond
reasonable doubt that the person:
. intentionally disclosed information about an individual
. was reckless as to the circumstance that the individual was a
participant (at the time the information was disclosed), and
. was reckless as to the circumstance that the participant had a current
NWPP identity at the time the information was disclosed, and the
information was about the original identity or a former NWPP identity
of the individual, and/or
. was reckless as to the result that there was a risk that the
disclosure of the information would reveal that the individual was a
participant.
Under new subsection 22(2) it will be an offence for a person to disclose
information about an individual undergoing assessment for inclusion in the
NWPP as a Commonwealth or Territory participant where the disclosure may
reveal that the individual is undergoing such assessment. 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 paragraphs (a), (b) and (d) of the offence. To
establish this offence, the prosecution will need to prove beyond
reasonable doubt that the person:
. intentionally disclosed information about an individual
. was reckless as to the circumstance that the individual was undergoing
assessment for inclusion in the NWPP at the time the information was
disclosed, and
. was reckless as to the result that there was a risk that the
disclosure of the information would reveal that the individual was
undergoing such assessment.
Under subsection 22(3) it will be an offence for a person to disclose
information about a Commonwealth or Territory participant where (if the
participant has a current NWPP identity) the information is about the
original identity or a former NWPP identity of the participant and/or (in
any case) could reveal that the individual is a participant, and where
there is a risk that the disclosure will compromise the security of the
individual. This offence will be punishable by a maximum penalty of ten
years imprisonment. This penalty is appropriate to ensure that there is a
significant deterrent for disclosing information where the person is aware
that there is a risk that the disclosure will compromise the security of a
NWPP participant. This penalty is consistent with the penalty for an
offence against current subsection 22(1) of the Act, which will be repealed
by Item 52.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of paragraphs (a), (b), (d) and (e) of the offence.
To establish this offence, the prosecution will need to prove beyond
reasonable doubt that the person:
. intentionally disclosed information about an individual
. was reckless as to the circumstance that the individual was a
participant (at the time the information was disclosed), and
. was reckless as to the circumstance that the participant had a current
NWPP identity at the time the information was disclosed, and the
information was about the original identity or a former NWPP identity
of the individual, and/or
. was reckless as to the result that there was a risk that the
disclosure of the information would reveal that the individual was a
participant, and
. was reckless as to whether there was a risk that his or her disclosure
of the information would compromise the security of the individual.
Under subsection 22(4) it will be an offence for a person to disclose
information about an individual undergoing assessment for inclusion in the
NWPP as a Commonwealth or Territory participant where the disclosure may
reveal that the individual is undergoing such assessment, and where there
is a risk that the disclosure will compromise the security of the
individual undergoing assessment. This offence will be punishable by a
maximum penalty of ten years imprisonment. This penalty is appropriate to
ensure that there is a significant deterrent for disclosing information
where the person is aware that there is a risk that the disclosure will
compromise the security of a person undergoing assessment to be included in
the NWPP as a participant. This penalty is consistent with that imposed
for the equivalent offence of disclosing information that may compromise
the security of a Commonwealth or Territory participant under
subsection 22(3).
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of paragraphs (a), (b), (d) and (e) of the offence. To
establish this offence, the prosecution will need to prove beyond
reasonable doubt that the person:
. intentionally disclosed information about an individual
. was reckless as to the circumstance that the individual was undergoing
assessment for inclusion in the NWPP at the time the information was
disclosed
. was reckless as to the result that there was a risk that the
disclosure of the information would reveal that the individual was
undergoing such assessment, and
. was reckless as to the result that there was a risk that his or her
disclosure of the information would compromise the security of the
individual.
Elements common to offences in section 22
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware of a substantial risk that
the circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take the risk.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a result if he or she is aware of a substantial risk that the
result will occur and, having regard to the circumstances known to him or
her, it is unjustifiable to take the risk.
Subsection 22(5) will provide that disclosure of information that would
otherwise be an offence under subsections 22(1), 22(2), 22(3) or 22(4) is
not an offence if the disclosure has been:
. authorised by the Commissioner
. made for the purpose of making a complaint or providing information to
the Ombudsman
. made to the Australian Commission for Law Enforcement Integrity for
the purpose of referring to the Integrity Commissioner an allegation
or information that raises a corruption issue
. made for the purpose of giving information that raises an AFP conduct
or practices issue, or investigating or resolving such an issue.
This safeguard will be included to ensure that a person is not unfairly
penalised for making a disclosure in such circumstances.
A defendant will bear an evidential burden in relation to subsection 22(5).
Section 13.3 of the Criminal Code provides that in the case of a standard
'evidential burden' defence, the defendant bears the burden of 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 (section 13.1). An evidential burden defence has been
used because a defendant would be better placed to point to evidence that
the disclosure had been made in one of the circumstances listed in this
subsection.
The use of the evidential burden defence in subsection 22(5) is consistent
with Commonwealth criminal law policy, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide
refers to the principle that it is legitimate to cast a matter as an
evidential burden defence where a matter is peculiarly within the
defendant's knowledge and is not available to the prosecution.
Subsection 22(7) will clarify that a person may be convicted of an offence
against section 22 because of a risk that a disclosure will have a
particular effect, even if the disclosure does not actually have that
effect. For example, with respect to the offences at subsections 22(3)
and 22(4), it will not be necessary for the prosecution to prove that the
security of an individual was in fact compromised. However, the
prosecution will need to adduce evidence that there was a risk that the
disclosure could have compromised the individual.
The prosecution will not be required to prove that the person knew that the
individual was a Commonwealth or Territory participant or was undergoing
assessment for inclusion in the NWPP as such a participant. Absolute
liability will be applied to paragraphs 1(c), 2(c), 3(c) and 4(c).
The effect of applying absolute liability to these elements will be that no
fault element needs to proved and the defence of mistake of fact will not
be available. Absolute liability is appropriate and required for these
elements of the offences because the circumstance that the individual is a
Commonwealth or Territory participant, or is undergoing assessment for
inclusion in the NWPP as such a participant, is a jurisdictional element. 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 and
those that do not. This is consistent with Commonwealth criminal law
policy, as described in the Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers.
Section 22A Offences relating to State participants
Section 22A will create two offences relating to disclosures about State
participants and two equivalent offences relating to disclosure of
information about people undergoing assessment for inclusion in the NWPP as
such participants.
Under new subsection 22A(1) it will be an offence for a person to disclose
information about a State participant where (if the participant has a
current NWPP identity) the information is about the original identity or a
former NWPP identity of the participant and/or (in any case) could reveal
that the individual is a participant. If the person disclosing the
information is someone other than a Commonwealth officer, Commonwealth
participant or Territory participant, there must also be a risk that
disclosure of the information will adversely affect the NWPP for the
offence to apply. This additional element has been included to ensure the
offence has a sufficient link to Commonwealth legislative power.
Information, in relation to the identity of a person, will be defined at
section 3 (by Item 6) and will include, for example, information in
relation to a person's appearance and address or location. 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 paragraphs (a), (b), (c), (e) and (f) 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 he or she is a Commonwealth
officer, a Commonwealth participant, a State participant, a Territory
participant or any other person
. intentionally disclosed information about an individual
. was reckless as to the circumstance that the individual was a
participant (at the time the information was disclosed), and
. was reckless as to the circumstance that the participant had a current
NWPP identity at the time the information was disclosed, and the
information was about the original identity or a former NWPP identity
of the individual, and/or
. was reckless as to the result that there was a risk that the
disclosure of the information would reveal that the individual was a
participant.
If the person disclosing the information is someone other than a
Commonwealth officer, Commonwealth participant or Territory participant,
the prosecution will also need to prove beyond reasonable doubt that the
person was reckless as to the result that there was a risk that the
disclosure of the information would adversely affect the integrity of the
NWPP.
Under new subsection 22A(2) it will be an offence for a person to disclose
information about an individual undergoing assessment for inclusion in the
NWPP as a State participant where the disclosure may reveal that the
individual is undergoing such assessment. If the person disclosing the
information is someone other than a Commonwealth officer, Commonwealth
participant or Territory participant, there must also be a risk that
disclosure of the information will adversely affect the NWPP for the
offence to apply. This additional element has been included to ensure the
offence has a sufficient link to Commonwealth legislative power. 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 paragraphs (a), (b), (c), (e) and (f) 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 he or she is a Commonwealth
officer, a Commonwealth participant, a State participant, a Territory
participant or any other person
. intentionally disclosed information about an individual
. was reckless as to the circumstance that the individual was undergoing
assessment for inclusion in the NWPP at the time the information was
disclosed, and
. was reckless as to the result that there was a risk that the
disclosure of the information would reveal that the individual was
undergoing such assessment.
If the person disclosing the information is someone other than a
Commonwealth officer, Commonwealth participant or Territory participant,
the prosecution will also need to prove beyond reasonable doubt that the
person was reckless as to the result that there was a risk that the
disclosure of the information would adversely affect the integrity of the
NWPP.
Under new subsection 22A(3) it will be an offence for a person to disclose
information about a State participant where (if the participant has a
current NWPP identity) the information is about the original identity or a
former NWPP identity of the participant and/or (in any case) could reveal
that the individual is a participant, and where there is a risk that the
disclosure will compromise the security of the individual. If the person
disclosing the information is someone other than a Commonwealth officer,
Commonwealth participant or Territory participant, there must also be a
risk that disclosure of the information will adversely affect the NWPP for
the offence to apply. This additional element has been included to ensure
the offence has a sufficient link to Commonwealth legislative power. This
offence will be punishable by a maximum penalty of ten years imprisonment.
This penalty is appropriate to ensure that there is a significant deterrent
for disclosing information where the person is aware that there is a risk
that the disclosure will compromise the security of a NWPP participant.
This penalty is consistent with the penalty for an offence against current
subsection 22(1) of the Act, which will be repealed by Item 52.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of paragraphs (a), (b), (c), (e), (f) and (g) 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 he or she is a Commonwealth
officer, a Commonwealth participant, a State participant, a Territory
participant or any other person
. intentionally disclosed information about an individual
. was reckless as to the circumstance that the individual was a
participant (at the time the information was disclosed), and
. was reckless as to the circumstance that the participant had a current
NWPP identity at the time the information was disclosed, and the
information was about the original identity or a former NWPP identity
of the individual, and/or
. was reckless as to the result that there was a risk that the
disclosure of the information would reveal that the individual was a
participant, and
. was reckless as to the result that there was a risk that his or her
disclosure of the information would compromise the security of the
individual.
If the person disclosing the information is someone other than a
Commonwealth officer, Commonwealth participant or Territory participant,
the prosecution will also need to prove beyond reasonable doubt that the
person was reckless as to the result that there was a risk that the
disclosure of the information would adversely affect the integrity of the
NWPP.
Under new subsection 22A(4) it will be an offence for a person to disclose
information about an individual undergoing assessment for inclusion in the
NWPP as a State participant where the disclosure may reveal that the
individual is undergoing such assessment, and where there is a risk that
the disclosure will compromise the security of the individual undergoing
assessment. If the person disclosing the information is someone other than
a Commonwealth officer, Commonwealth participant or Territory participant,
there must also be a risk that disclosure of the information will adversely
affect the NWPP for the offence to apply. This additional element has been
included to ensure the offence has a sufficient link to Commonwealth
legislative power. This offence will be punishable by a maximum penalty of
ten years imprisonment. This penalty is appropriate to ensure that there
is a significant deterrent for disclosing information where the person is
aware that there is a risk that the disclosure will compromise the security
of a NWPP participant. This penalty is consistent with the penalty for an
offence against current subsection 22(1) of the Act, which will be repealed
by Item 52.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of paragraphs (a), (b), (c), (e), (f) and (g) 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 he or she is a Commonwealth
officer, a Commonwealth participant, a State participant, a Territory
participant or any other person
. intentionally disclosed information about an individual
. was reckless as to the circumstance that the individual was undergoing
assessment for inclusion in the NWPP at the time the information was
disclosed
. was reckless as to the result that there was a risk that the
disclosure of the information would reveal that the individual was
undergoing such assessment, and
. was reckless as to the result that there was a risk that his or her
disclosure of the information would compromise the security of the
individual.
If the person disclosing the information is someone other than a
Commonwealth officer, Commonwealth participant or Territory participant,
the prosecution will also need to prove beyond reasonable doubt that the
person was reckless as to the result that there was a risk that the
disclosure of the information would adversely affect the integrity of the
NWPP.
Elements common to offences in section 22A
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware of a substantial risk that
the circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take the risk.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a result if he or she is aware of a substantial risk that the
result will occur and, having regard to the circumstances known to him or
her, it is unjustifiable to take the risk.
Subsection 22A(5) will provide that disclosure of information that would
otherwise be an offence under subsections 22A(1), 22A(2), 22A(3) or 22A(4)
is not an offence if the disclosure has been:
. authorised by the Commissioner
. made for the purpose of making a complaint or providing information to
the Ombudsman
. made to the Australian Commission for Law Enforcement Integrity for
the purpose of referring to the Integrity Commissioner an allegation
or information that raises a corruption issue
. made for the purpose of giving information that raises an AFP conduct
or practices issue, or investigating or resolving such an issue.
This safeguard will be included to ensure that a person is not unfairly
penalised for making a disclosure in such circumstances.
A defendant will bear an evidential burden in relation to
subsection 22A(5). Section 13.3 of the Criminal Code provides that in the
case of a standard 'evidential burden' defence, the defendant bears the
burden of 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 (section 13.1). An evidential burden
defence has been used because a defendant would be better placed to point
to evidence that the disclosure had been made in one of the circumstances
listed in this subsection.
The use of the evidential burden defence in subsection 22A(5) is consistent
with Commonwealth criminal law policy, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide
refers to the principle that it is legitimate to cast a matter as an
evidential burden defence where a matter is peculiarly within the
defendant's knowledge and is not available to the prosecution.
Subsection 22A(7) will clarify that a person may be convicted of an offence
against section 22A because of a risk that a disclosure will have a
particular effect, even if the disclosure does not actually have that
effect. For example, with respect to the offences at subsections 22A(3)
and 22A(4), it will not be necessary for the prosecution to prove that the
security of an individual was in fact compromised. However, the
prosecution will need to adduce evidence that there was a risk that the
disclosure could have compromised the individual.
The prosecution will not be required to prove that the person knew that the
individual was a State participant or was undergoing assessment for
inclusion in the NWPP as such a participant. Absolute liability will be
applied to paragraphs 1(d), 2(d), 3(d) and 4(d). The effect of applying
absolute liability to these elements will be that no fault element needs to
proved and the defence of mistake of fact will not be available. Absolute
liability is appropriate and required for these elements of the offences
because the circumstance that the individual is a State participant, or is
undergoing assessment for inclusion in the NWPP as such a participant, is a
jurisdictional element. 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 and those that do not. This is consistent with
Commonwealth criminal law policy, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
Section 22B Offences relating to disclosure of information about the NWPP
Section 22B will replace the offence currently at subsection 22(2)
concerning disclosure of information about the NWPP with two separate
offences. The first offence will apply to NWPP participants and those who
are undergoing or have undergone assessment for inclusion in the NWPP as
participants. The second offence will apply to all other persons.
The offence currently at subsection 22(2) applies to current and former
Commonwealth participants and those who have undergone assessment for
inclusion as such participants. Section 22B(1) will extend the application
of that offence to State and Territory participants (including former
participants, because of the revised definition of participant inserted by
Item 8). This will ensure that obligations imposed on Commonwealth
participants are likewise imposed on State and Territory participants. It
will also extend the application of the offence to people undergoing
assessment for inclusion in the NWPP as a Commonwealth, State or Territory
participant. This amendment recognises that a person who is not a
participant, but who is undergoing assessment for inclusion in the NWPP,
could during that process become aware of sensitive information about the
operation of the NWPP.
Under subsection 22B(1), it will be an offence for a NWPP participant, or
someone who is undergoing or has undergone assessment for inclusion in the
NWPP as a participant, to disclose that fact, or other information about
the NWPP. Such people may have knowledge of the NWPP that, if disclosed,
could adversely affect the integrity of the NWPP and endanger participants
and others involved in the NWPP through their work. This offence will be
punishable by a maximum penalty of five years imprisonment. This penalty
is consistent with the penalty for an offence against current
subsection 22(2) of the Act, which will be repealed by Item 52.
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 he or she is a Commonwealth
participant, a Territory participant or a State participant, or
. was reckless as to the circumstance that he or she was undergoing or
had undergone assessment for inclusion in the NWPP as a Commonwealth
participant, a Territory participant or a State participant, and
. intentionally disclosed any of the information set out at
subparagraphs 22B(1)(b)(i), (ii), (iii), (iv) or (v).
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware of a substantial risk that
the circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take the risk.
Subsection 22B(2) will extend the application of the offence currently at
subsection 22(2) to people who are not participants and are not undergoing,
and have not undergone, assessment for inclusion in the NWPP as a
participant. This amendment recognises that there could be instances of
people not directly involved in the NWPP nevertheless finding out
information about the NWPP that, if disclosed, could adversely affect the
integrity of the NWPP and endanger participants and others involved in the
NWPP through their work.
Under subsection 22B(2), it will be an offence for someone who is not a
participant and is not undergoing and has not undergone assessment for
inclusion in the NWPP as a participant to disclose information, where there
is a risk that the disclosure will adversely affect the integrity of the
NWPP and/or compromise the security of the Commissioner, a Deputy
Commissioner or an AFP employee or special member of the AFP who is, or has
been, involved in the NWPP. This offence will be punishable by a maximum
penalty of five years imprisonment. This penalty is consistent with the
penalty for an offence against current subsection 22(2) of the Act, which
will be repealed by Item 52, and the offence at new subsection 22B(1).
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:
. intentionally disclosed information, and
. was reckless as to the result that there was a risk that his or her
disclosure of the information would adversely affect the integrity of
the NWPP, and/or
. was reckless as to the result that there was a risk that his or her
disclosure of the information would compromise the security of the
Commissioner, a Deputy Commissioner or an AFP employee or special
member of the AFP who was, or had been, involved in the NWPP.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a result if he or she is aware of a substantial risk that the
result will occur and, having regard to the circumstances known to him or
her, it is unjustifiable to take the risk.
Subsection 22B(4) will clarify that a person may be convicted of an offence
against subsection 22B(2) because of a risk that a disclosure will have a
particular effect, even if the disclosure does not actually have that
effect. For example, in relation to 22B(2)(c)(i), it will not be necessary
for the prosecution to prove that the integrity of the NWPP was in fact
adversely affected. However, the prosecution will need to adduce evidence
that there was a risk that the disclosure could have adversely affected the
integrity of the NWPP.
Subsection 22B(3) will provide that disclosure of information that would
otherwise be an offence under subsections 22B(1) or 22B(2) is not an
offence if the disclosure has been:
. authorised by the Commissioner
. made for the purpose of making a complaint or providing information to
the Ombudsman
. made to the Australian Commission for Law Enforcement Integrity for
the purpose of referring to the Integrity Commissioner an allegation
or information that raises a corruption issue
. made for the purpose of giving information that raises an AFP conduct
or practices issue, or investigating or resolving such an issue.
This safeguard will be included to ensure that a person is not unfairly
penalised for making a disclosure in such circumstances.
A defendant will bear an evidential burden in relation to
subsection 22B(3). Section 13.3 of the Criminal Code provides that in the
case of a standard 'evidential burden' defence, the defendant bears the
burden of 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 (section 13.1). An evidential burden
defence has been used because a defendant would be better placed to point
to evidence that the disclosure had been made in one of the circumstances
listed in this subsection.
The use of the evidential burden defence in subsection 22B(3) is consistent
with Commonwealth criminal law policy, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers. The Guide
refers to the principle that it is legitimate to cast a matter as an
evidential burden defence where a matter is peculiarly within the
defendant's knowledge and is not available to the prosecution.
Section 22C Disclosures to courts, etc
Subsection 22C(1) will clarify that the non-disclosure offences at
sections 22, 22A and 22B (as inserted by this Item) apply to disclosure of
information to a court, tribunal, a Royal Commission of the Commonwealth, a
State or a Territory or any other commission of inquiry. Subsection 22C(2)
provides that the application of subsection 22C(1) does not affect the
operation of subsection 26(3).
Section 26 provides that the Commissioner, a Deputy Commissioner, AFP
employees, special members of the Australian Federal Police, the Ombudsman
and members of the Ombudsman's staff are not generally to be required to
disclose certain information in a court or before a Royal Commission of the
Commonwealth, a State or a Territory or any other commission of inquiry.
Subsection 26(3) allows these people to disclose the relevant information
if it is essential to the determination of legal proceedings that the judge
or magistrate be advised of a NWPP participant's location and
circumstances. The purpose of subsection 22C(2) is to ensure that it is
clear that a person who discloses information in accordance with
subsection 26(3) does not commit an offence under section 22, 22A or 22B.
Items 53 - 55
Section 25 allows the Commissioner to delegate, by writing, some of his or
her powers under the Act to a person who holds a designated position.
'Designated person' is defined at section 3 and includes the Commissioner,
a Deputy Commissioner and certain AFP employees and special members of the
Australian Federal Police whose duties relate to the NWPP.
Item 53
Item 55 will insert new subsection 25(4) to limit the delegation of the
Commissioner's powers under new subsections 13(5) and 13(7). Item 53 will
insert a cross-reference to that subsection at subsection 25(1).
Item 54
Subsection 25(3) provides that certain powers of the Commissioner under the
Act may only be delegated to a Deputy Commissioner. This ensures that
there is an appropriate level of accountability for important powers such
as deciding whether to include a witness in the NWPP. This subsection
currently applies to a Commissioner's powers under a number of provisions,
including section 27, which concerns actions the Commissioner may take if:
. a participant is to be a witness in a criminal proceeding under his or
her current NWPP identity, and
. the participant has a criminal record under his or her original
identity or any former NWPP identity.
Item 66 will insert new section 27A, which will be a similar provision
relating to a participant being involved in civil proceedings. Item 54
will provide that the Commissioner's powers under section 27A may only be
delegated to a Deputy Commissioner, consistent with the limitation on
delegation of powers under section 27.
Item 55
Item 22 will insert new subsection 13(5), which will enable the
Commissioner to provide assistance to a former participant or any other
person whose relationship with a former participant is such that the
Commissioner is satisfied that it is appropriate to take those actions, as
if that person were a witness included in the NWPP. Item 22 will also
insert new subsection 13(7), which will require the Commissioner to give
the Immigration Secretary written notice when he or she first takes action
under subsection 13(5) in respect of a former participant who was a
participant under section 10 or 10A of the Act.
Item 55 will insert new subsection 25(4) at section 25 to limit the
delegation of a Commissioner's powers under new subsections 13(5) and 13(7)
to a Deputy Commissioner, Assistant Commissioner or a person occupying an
equivalent or higher rank in the Australian Federal Police. Decisions of
the Commissioner to include a witness in the NWPP may only be delegated to
a Deputy Commissioner. Protection and assistance provided under new
subsection 13(5) will need to be provided quickly to avoid endangering the
relevant person. It is appropriate in that context to allow decisions
under that subsection to be delegated to an Assistant Commissioner or a
person occupying an equivalent or higher rank in the Australian Federal
Police to avoid delays.
Items 56 - 58
Subsection 26 (1) provides that except in certain circumstances, the
Commissioner, a Deputy Commissioner, an AFP employee or a special member of
the Australian Federal Police is not to be required to disclose particular
information relating to the NWPP in certain proceedings.
Item 56
Item 56 will amend paragraph 26(1)(a) to clarify that subsection 26(1)
applies to State and Territory Royal Commissions as well as Commonwealth
Royal Commissions, and to refer to 'any other commission of inquiry'
instead of 'an approved authority'. This amendment will ensure that the
paragraph is consistent with other references to commissions of inquiry in
the Act. It also removes the potential for confusion arising from the
current use of the term 'approved authority', which is defined at section 3
to have a different meaning to that intended in this section.
Item 57
Item 57 will clarify that paragraphs 26(1)(a) and 26(1)(b) apply to
documents, matters and things that the Commissioner, a Deputy Commissioner,
an AFP employee or a special member of the Australian Federal Police has
come across in the exercise of powers under the Act as well as in the
course of, or because of, the performance of functions or duties under the
Act. This amendment ensures that it is clear that such persons are not to
be required to disclose such information in certain proceedings, unless
subsection 26(3) applies or it is necessary to do so for the purposes of
the Act. Subsection 26(3) allows these people to disclose the relevant
information if it is essential to the determination of legal proceedings
that the judge or magistrate be advised of a NWPP participant's location
and circumstances.
Item 58
Item 58 will insert a new provision into subsection 26(1) to ensure the
protection of the identity of AFP employees and special members of the
Australian Federal Police who administer or are involved in the operation
of the NWPP. Protecting the identity of those involved in administering
the NWPP is necessary to ensure the protection of NWPP participants. For
example, if a person knows the identity of an AFP employee involved in the
operation of the NWPP and sees that employee interacting regularly with a
witness, it could be revealed that the witness is a NWPP participant.
Subparagraph 26(1)(c)(i) will provide that the Commissioner, a Deputy
Commissioner, an AFP employee or a special member of the Australian Federal
Police is not generally to be required to provide information about the
identity of, or information that would reveal the identity of, an AFP
employee or a special member of the Australian Federal Police who is
involved in the operation of the NWPP in certain proceedings, unless
subsection 26(3) applies or it is necessary to do so for the purposes of
the Act. Subparagraph 26(1)(c)(ii) will provide that the restriction will
generally apply if the person has the information as a result of the
performance of functions or duties or the exercise of powers under the Act.
Subsection 26(3) allows these people to disclose the relevant information
if it is essential to the determination of legal proceedings that the judge
or magistrate be advised of a NWPP participant's location and
circumstances.
Items 59 - 60
Subsection 26 (2) provides that except in certain circumstances, the
Commonwealth Ombudsman or a member of staff of the Commonwealth Ombudsman
is not to be required to disclose particular information relating to the
NWPP in certain proceedings.
Item 59
Item 59 will amend paragraph 26(2)(a) to clarify that subsection 26(2)
applies to State and Territory Royal Commissions as well as Commonwealth
Royal Commissions, and to refer to 'any other commission of inquiry'
instead of 'an approved authority'. This amendment will ensure that the
paragraph is consistent with other references to commissions of inquiry in
the Act. It also removes the potential for confusion arising from the
current use of the term 'approved authority', which is defined at section 3
of the Act to have a different meaning to that intended in this section.
Item 60
Item 60 will insert a new provision into subsection 26(2) to ensure the
protection of the identity of AFP employees and special members of the
Australian Federal Police who administer, or are involved in, the operation
of the NWPP. Protecting the identity of those involved in administering
the NWPP is necessary to ensure the protection of NWPP participants. For
example, if a person knows the identity of an AFP employee involved in the
operation of the NWPP and sees that employee interacting regularly with a
witness, it could be revealed that the witness is a NWPP participant.
Subparagraph 26(2)(c)(i) will provide that the Commonwealth Ombudsman or a
member of staff of the Commonwealth Ombudsman is not generally to be
required to provide information about the identity of, or information that
would reveal the identity of, an AFP employee or a special member of the
Australian Federal Police who is involved in the operation of the NWPP in
certain proceedings, unless subsection 26(3) applies or it is necessary to
do so for the purposes of the Act. Subparagraph 26(2)(c)(ii) will provide
that the restriction will generally apply if the person has the information
as a result of the performance of functions or duties or the exercise of
powers in relation to the Act. Subsection 26(3) allows these people to
disclose the relevant information if it is essential to the determination
of legal proceedings that the judge or magistrate be advised of a NWPP
participant's location and circumstances.
Item 61
Item 61 will amend subsection 26(3) to extend the application of the
exception to subsections 26(1) and (2), which are described above at items
56 to 60. Subsection 26(3) currently provides that if it is essential to
the determination of legal proceedings under or in relation to a law of the
Commonwealth that the judge of magistrate be advised of a NWPP
participant's location and circumstances, information that could not
otherwise be required to be disclosed except where the disclosure is
necessary for the purposes of the Act may be disclosed. The amendment will
provide that the exception applies also to legal proceedings under or in
relation to a law of a State or Territory. Disclosure should be permitted
in such circumstances regardless of whether the relevant proceedings
concern a Commonwealth law or State or Territory law, particularly as
witnesses in State or Territory cases may be included in the NWPP.
Items 62 - 63
Items 62 and 63 will make technical amendments to subsection 26(5) that are
necessary because of a change that will be made to the definition of
participant at section 3 inserted by Item 8. The new definition of
participant at section 3 will expressly include former participants unless
the contrary intention appears. These items will remove references to a
former participant from subsection 26(5) as they will now be redundant.
These items do not make any substantive change to the operation of
section 26, which concerns information disclosures which may or may not be
required by a court, tribunal, Royal Commission of the Commonwealth, a
State or a Territory or any other commission of inquiry.
Items 64 - 65
Items 64 and 65 will make technical amendments to section 27 as a result of
changes to be made to the definitions at section 3 of the Act. These
amendments are required for the following reasons.
. Proposed changes to the definitions in section 3 made by Items 2, 3
and 7 will differentiate between a participant's original identity,
current NWPP identity and former NWPP identity. Item 64 will clarify
that the current reference to former identity at subsection 27(1) will
now encompass both the participant's original identity (that which the
person had at the time immediately before he or she was first provided
with an identity under the NWPP) and any identity provided to the
participant under the NWPP that the participant is not currently
using.
. The proposed new section 3 definition of participant inserted by
Item 8 will expressly include former participants unless the contrary
intention appears. Item 65 will remove a reference to a former
participant from subsection 27(2) as it will now be redundant.
Item 66
Item 66 will insert a new section 27A. New subsection 27A(1) will require
a participant to notify the Commissioner if he or she is to be involved in
a civil proceeding, under his or her current NWPP identity, in which his or
her identity is in issue. New subsection 27A(2) will provide that after
receiving such notification, the Commissioner may take any action that he
or she considers appropriate in the circumstances. This could include
notifying the court of legal obligations the participant has relating to
their original identity or a former NWPP identity. Section 27A will create
an obligation in relation a participant's involvement in civil proceedings
similar to the obligation existing section 27 imposes in relation to
involvement in criminal proceedings. However, in the case of civil
proceedings, the obligation will only apply where the participant's
identity is in issue in those proceedings. Section 27A will help to
preserve the integrity of the NWPP and ensure that participants do not use
their current NWPP identity to avoid legal obligations relating to their
original identity or a former NWPP identity. Such obligations could
include, for example, child support payments or, if the participant owns a
business, obligations to employees.
New subsection 27A(3) will define 'civil proceeding' for the purposes of
section 27A. 'Civil proceeding' will mean any proceeding in a court,
tribunal, a Royal Commission of the Commonwealth, a State or a Territory or
any other commission of inquiry other than a criminal proceeding.
Item 67
Section 28 currently provides that if the identity of a Commonwealth
participant is in issue or may be disclosed in proceedings, the court,
tribunal or commission, must, unless it considers that the interests of
justice require otherwise, take certain actions to ensure the protection of
the participant's identity. Item 67 will repeal existing section 28 and
replace it with new sections 28 and 28A to extend the provision to State
participants and Territory participants, update the provision so it is more
consistent with similar provisions in Commonwealth legislation and insert a
new offence.
Section 28
Subsection 28(1) will provide that new section 28 will apply if:
. the original identity or a former NWPP identity of a Commonwealth,
State or Territory participant (paragraph (1)(a))and/or
. the fact that a person is such a participant (paragraph (1)(b)),
and/or
. the fact that a person has undergone or is undergoing assessment for
inclusion in the NWPP as such a participant (paragraph (1)(c))
is in issue, or may be disclosed, in any proceedings before a court,
tribunal, a Royal Commission of the Commonwealth, a State or a Territory or
any other commission of inquiry.
Paragraph 28(2)(a) will require that the court, tribunal or commission
must, unless it considers that it is not in the interests of justice to do
so, hold in private that part of the proceedings that relates to one or
more of the matters in paragraphs (1)(a), (b) or (c).
Paragraph 28(2)(b) will require the court, tribunal or commission to make
such orders relating to the suppression of publication of evidence given
before it as, in its opinion, will ensure that those matters are not made
public. Subsection 28(3) will clarify that paragraph 28(2)(b) does not
prevent a transcript being taken of the relevant proceedings, but that the
court may make an order for how the transcript is to be dealt with,
including an order suppressing its publication.
Paragraph 28(2)(c) will require that the court, tribunal or commission
must, unless it considers that it is not in the interests of justice to do
so, make such orders as it considers appropriate to ensure that those
matters, or information that may compromise the security of a person
referred to in paragraph (1)(a), (b) or (c) are not made public.
Section 28A
Under section 28A it will be an offence for a person to engage in conduct
that contravenes an order made by a court, tribunal or commission under
section 28. 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 was in force under
section 28
. intentionally engaged in conduct
. was reckless as to the result that the conduct contravened the order.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware of a substantial risk that
the circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take the risk.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a result if he or she is aware of a substantial risk that the
result will occur and, having regard to the circumstances known to him or
her, it is unjustifiable to take the risk.
Subsection 28A(2) clarifies that section 28A does not limit any other
powers of the body that made the order under section 28. This would
include the power of the court to punish a person for contempt.
Item 68
Section 30 requires the Commissioner to keep the Minister informed of the
general operations, performance and effectiveness of the NWPP and, in
particular, the exercise of powers under section 27. Section 27 concerns
actions the Commissioner may take if:
. a participant is to be a witness in a criminal proceeding under his or
her current NWPP identity, and
. the participant has a criminal record under his or her original
identity or any former NWPP identity.
Item 66 will insert new section 27A, which will be a similar provision
relating to a participant being involved in civil proceedings. Item 68
will amend section 30 to provide that the Commissioner must also keep the
Minister informed about the exercise of powers under section 27A.
Item 69
This item is a saving provision that will clarify the status of
declarations of complementary witness protection laws made under existing
section 3 prior to the commencement of the amendments in items 1 and 13 of
this Schedule.
Subitem 69(1) is included to assist readers. It provides an explanation of
the status of declarations made under existing section 3 of the Act - that
is, that they are not legislative instruments as they do not come within
the definition of 'legislative instrument' at section 5 of the Legislative
Instruments Act. This item is not a declaration under section 7 of the
Legislative Instruments Act that the declarations made under existing
section 3 are not legislative instruments. Instead, it is a clarification
of the status of the declarations, included solely to assist readers.
Subitem 69(2) is a saving provision that will ensure that any declarations
of complementary witness protection laws made under current section 3 of
the Witness Protection Act that are in force at the commencement of this
Schedule will continue to have effect, subject to subitem 69(1), as if they
had been made under new section 3AA of the Act.
To facilitate public access, it is intended that existing declarations made
under current section 3 of the Act will be remade under new section 3AA of
the Act and registered on FRLI.
Items 70 - 71
Items 70 and 71 are application provisions in relation to new
subsection 13(5) (inserted by Item 22) and section 16 as amended by
Items 25-31.
Item 70
Item 70 will clarify that the Commissioner may take action under new
subsection 13(5) on or after the commencement of this item, whether the
former participant became a former participant before, on or after that
commencement. This item is included to ensure that it is clear that upon
commencement, action may be taken under new subsection 13(5) to provide
protection and assistance to a former participant regardless of when that
former participant became a former participant. A definition of former
participant will be inserted into section 3 by Item 4 to mean a person who
has ceased to be included in the NWPP.
Item 71
Item 71 will provide that section 16 as amended by this Schedule will apply
on and after commencement of this item in relation to a permission given
under paragraph 16(1)(b) before that commencement as if the permission had
been given under that paragraph, as amended by Items 25-31, in relation to
the participant's original identity. This will mean that if a participant
has been given permission under existing paragraph 16(1)(b) not to disclose
his or her former identity for a particular purpose, that permission will
apply upon commencement of this item to the participant's original identity
but not any former NWPP identity of the participant. Items 2, 3 and 7 will
insert definitions of original identity, current NWPP identity and former
NWPP identity into section 3.
Schedule 4 - Criminal organisation and association offences
GENERAL OUTLINE
The purpose of this Schedule is to insert new offences into the Criminal
Code that will target persons involved in serious and organised crime.
Criminal offences are a useful law enforcement tool to deter and prosecute
persons involved in serious and organised crime as part of a group.
As part of the resolutions agreed to by SCAG in April 2009 on a national
response to organised crime, Ministers agreed to consider measures which
would enhance the legislative response, including through the introduction
of new criminal offences. In particular, the Commonwealth agreed to
consider, to the extent practical and effective, and having regard to
constitutional power, consorting or similar provisions that prevent a
person from associating with another person who is involved in organised
criminal activity as an individual or through an organisation.
At the August 2009 SCAG meeting, Minister's also agreed to consider
introducing a suite of additional offences aimed at criminalising varying
levels of involvement in the activities of a criminal organisation.
Association offences
Consorting offences, and more modern association offences, criminalise
persons associating with convicted criminals, and in some cases, members of
criminal organisations. Most States and Territories have general
consorting or association offences which criminalise associating with
convicted or reputed criminals. Some jurisdictions have consorting or
association offences specifically targeting organised crime. Other
jurisdictions have also introduced, or have indicated that they are
considering introducing, legislation criminalising associating with members
of organisations, declared or prescribed as illegal organisations, by
either the Executive or a court.
The amendments in this Schedule introduce specific Commonwealth offences of
associating with a person who is involved in criminal activity, where the
association provides support to the person in committing organised criminal
activity.
The Commonwealth's association offences have two important features.
Firstly, the determination as to whether the people in question are
involved in organised criminal activity will be a matter for the court on a
case-by-case basis. This is different to some State and Territory offences
which are based on the declaration or prescription of certain organisations
as illegal by the Executive or a court.
Secondly, the offences will require, in addition to proof that the person
associated with persons involved in serious and organised criminal
activity, proof that the association supported the engagement by the other
person in the serious organised criminal activity. That is, there must be
a causal link proven that the association helped, or enhanced the ability
of, the other persons to engage in serious organised criminal activity.
Criminal organisation offences
A common approach internationally to combating serious and organised crime
is legislating for specific criminal offences that target the conduct of
members of criminal groups. One of the primary reasons many jurisdictions
have adopted specific organised crime offences is to enable differentiation
between lower level and higher level participants. A sophisticated example
of this is the Canadian Criminal Code, which provides separate offences to
correspond with the offender's level of involvement in the criminal
organisation.
Accordingly, the amendments in this Schedule will introduce several new
offences criminalising varying levels of involvement in a criminal
organisation, with penalties that reflect the spectrum of less to more
serious involvement. The offences will target those:
. supporting a criminal organisation to facilitate or commit serious
offences
. committing a serious offence for the benefit, or at the direction, of
a criminal organisation, and
. directing the activities of a criminal organisation.
The offences will require a determination by the court on a case-by-case
basis that the particular group is a criminal organisation. The offences
are not based on involvement in particular declared or prescribed
organisations. While traditionally organised crime groups have been
tightly structured, hierarchical groups, modern organised crime groups are
increasingly loose, fluid networks who work together in order to exploit
new market opportunities. Given this trend towards looser, more transient
networks, it can be difficult to declare or proscribe criminal groups with
any degree of certainty.
Telecommunications Interception
This Schedule also amends the Telecommunications (Interception and Access)
Act 1976 (TIA Act) to ensure that telecommunications interception warrants
are available for the investigation of the new organised crime offences.
This reflects the growing effect of organised crime on the Australian
community and the need for law enforcement agencies to have access to a
full suite of powers to combat such crime.
Criminal Code Act 1995
Item 1
This item will insert new Division 390, Part 9.9 into the Criminal Code,
which will deal with criminal associations and organisations.
Subdivision A - Definitions
Section 390.1 - Definitions
Subsection 390.1(1) will define terms associated with the new criminal
organisation offences inserted by Item 1.
The key definitions will be:
ancillary offence in relation to a State offence (the primary offence) is
defined for the purposes of the definition of 'State offences that have a
federal aspect' in section 390.2, which refers to State ancillary offences.
associate will be defined to mean meet or communicate (by electronic
communication or otherwise). This will ensure that the offence applies to
associations which occur in person, but also communication by any means,
including by post, fax, telephone, or by email or other electronic means.
child will be defined, without limiting the ordinary meaning of child, as
someone who is the child of a person if he or she is a child of the person
within the meaning of the Family Law Act 1975. The meaning of 'child' in
the Family Law Act includes children:
. born to a woman as the result of an artificial conception procedure
while that woman was married to, or was a de facto partner of, another
person (whether of the same or opposite sex), and
. who are children of a person because of an order of a State or
Territory court made under a State or Territory law prescribed for the
purposes of section 60HB of the Family Law Act, giving effect to a
surrogacy agreement.
This will ensure that the definition of child will include children born
through artificial conception procedures and surrogacy arrangements. It
will also ensure that the children of same-sex couples are recognised in
the definition of 'close family member'.
close family member will be defined to mean:
. the person's spouse or de facto partner
. a parent, step-parent or grandparent of the person
. a child, stepchild or grandchild of the person
. a brother, sister, step-brother or step-sister of the person, and
. a guardian or carer of the person.
The purpose of this definition is to provide an exclusive list of the
persons who will be a 'close family member' of a person for the purposes of
a defence to the new association offences in section 390.3(6). Section
390.3(6) provides for an exception where the association is with a close
family member and relates only to a matter that could reasonably be
regarded (taking into account the person's cultural background) as a matter
of family or domestic concern.
constitutionally covered offence punishable by imprisonment for at least 12
months is defined for the purposes of a particular element common to all of
the new criminal organisation offences. That is, that the offence which,
for example under new section 390.5, is committed for the benefit of the
criminal organisation, is a constitutionally covered offence punishable by
imprisonment for at least 12 months. The definition will serve two
particular purposes.
The first is to provide the Commonwealth connector in the new criminal
organisation offences, by limiting the criminal conduct which the criminal
organisation offences apply to conduct constituting an offence within
Commonwealth power. This includes Commonwealth offences, State offences
that have a federal aspect (see below for a description of this
definition), Territory offences and foreign offences that are constituted
by conduct that, if engaged in Australia, would constitute an offence.
The second is to limit the criminal conduct to which the criminal
organisation offences apply to conduct constituting an offence punishable
by imprisonment for at least 12 months or for life. This ensures that a
person will only be captured by the new criminal organisation offences
where, for example, they are supporting a criminal organisation to commit
serious offences. The new criminal organisation offences will not apply
to, for example under new section 390.4, supporting a criminal organisation
to commit minor offences carrying penalties of less than 12 months.
constitutionally covered offence punishable by imprisonment for at least 3
years is defined for the purposes of a particular element common to both
new association offences. The definition will, similar to the above
definition, serve two particular purposes.
The first is to provide the Commonwealth connector in the new association
offences, by limiting the criminal conduct to which the association
offences apply to conduct constituting an offence within Commonwealth
power. These include Commonwealth offences, State offences that have a
federal aspect (see below for a description of this definition), Territory
offences and foreign offences that are constituted by conduct that, if
engaged in Australia, would constitute an offence.
The second is to limit the criminal conduct to which the association
offences apply to offences punishable by imprisonment for at least 3 years
or for life. This ensures that a person will only be captured by the new
association offences where they associate with persons who are involved in
committing serious organised crime. Given that the association offences
criminalise conduct which is further removed from the commission of actual
offences by the persons involved in organised criminal activity, it is
appropriate to limit the association offences to association in support of
particularly serious offences, ie those punishable by imprisonment for at
least 3 years.
de facto partner will be defined to have the meaning given by the Acts
Interpretation Act 1901. That is, a person will be the de facto partner of
another person (whether the same sex or different sex) if the person is in
a registered relationship with the other person under section 22B, or the
person is in a de facto relationship with the other person under section
22C, of the Acts Interpretation Act.
foreign offence will be defined to mean an offence against a law of a
foreign country or part of a foreign country. This will ensure that an
offence against particular jurisdictions within a country, such as a State
or a Province, will be captured by the definition.
for the benefit of in relation to an offence is, or would if committed be,
for the benefit of a group if the offence results or is likely to result in
the group or at least one of its members receiving directly or indirectly a
significant benefit of any kind.
This definition draws on article 2(a) of the United Nations Convention
against Transnational Organized Crime, which requires that the purpose of
the group's activity be to obtain, directly or indirectly, a financial or
other material benefit.
The purpose of this definition is to recognise the profit-oriented business
dimension of organised crime, but also the non-economic benefits which may
result from organised criminal activity. Examples of a significant benefit
may include, but are not limited to, direct benefits such as financial
benefits or profits from the trafficking and sale of drugs, or more
indirect benefits such as instances where a criminal organisation provides
protection or security for illegal activities such as illegal gambling or
illegal brothels.
The definition will apply where the offence results in the group or one of
its members receiving a benefit of any kind, and also where the offence is
likely to result in the group or at least one of its members receiving a
benefit of any kind. Accordingly, the definition is not limited only to
where an actual benefit is received.
Where it is a particular member of the organisation receiving the benefit,
the member must receive the benefit in his or her capacity as such a
member. It will not be sufficient where the member receives the benefit in
his or her personal capacity, where there is no link at all with the
organisation.
offence against any law punishable by imprisonment for at least 3 years is
defined for the purposes of a particular element common to all of the new
criminal organisation offences. That is, that the organisation's aims or
activities include facilitating the engagement in, or engagement in,
conduct constituting offences against any law punishable by imprisonment
for at least three years.
This phrase will be defined to mean any Australian offence (eg an offence
against the law of the Commonwealth, a State or Territory) punishable on
conviction by imprisonment for at least three years or for life, or a
foreign offence punishable on conviction (however described) by
imprisonment for at least three years or for life.
This will limit the types of organisations that are criminal organisations
for the purposes of the criminal organisation offences to those which have
as their aims the commission of more serious offences. The definition of
serious and organised crime for the purposes of the Australian Crime
Commission Act 2002 (ACC Act) is limited to offences punishable by
imprisonment for a period of three years of more. Providing that an
organisation will only be a criminal organisation if, amongst other things,
it is involved in the commission of offences punishable by imprisonment for
at least three years is consistent with the definition of serious and
organised crime in the ACC Act.
The use of the three year threshold as an indication of more serious
offences is also used in provisions directed at law enforcement powers,
such as for serious offences defined in the Crimes Act relating to the
controlled operations regime, and for serious offences defined in the TIA
Act relating to the use of telecommunications interception.
parent will be defined, without limiting who is a parent, with reference to
the definition of child, in that someone will be a parent of a person if
the person is his or her child because of the definition of child. The new
association offences in section 390.3 provide for a defence where the
association is with a close family member. The definition of close family
member includes a parent of a person.
stepchild will be defined, without limiting who is step-parent of a person
for the purposes of the Division, as a stepchild of a person if he or she
would be the person's step-child except that the person is not legally
married to the person's de facto partner. The new association offences in
section 390.3 provide for a defence where the association is with a close
family member. The definition of close family member includes a stepchild
of a person.
The ordinary meaning of 'stepchild' is a 'child of a husband or wife by a
former union'. As same-sex couples cannot marry, the child of one member
of the couple by a former relationship cannot be considered to be the other
member of the couple's stepchild. This is also the case for children of
opposite-sex de facto partners by a former relationship.
This definition extends the existing concept of step-child to include a
child of an opposite-sex or same-sex de facto partner by a former
relationship. This is achieved by providing that a 'step-child' includes a
child who would be the step-child of a person who is the de facto partner
of a parent of the child, except that the person and the parent are not
legally married. It is not necessary to establish that the person and the
parent are capable of being legally married.
step-parent will be defined, without limiting who is a step-parent of a
person for the purposes of the Division, as someone who is a de facto
partner of a parent of the person is the step-parent of the person, if he
or she would be the person's step-parent except that he or she is not
legally married to the person's parent
Subsection 390.1(2) will provide that, for the purposes of the definition
of 'close family member', if one person is the child of another person
because of the definition of child in that subsection, relationships traced
to or through the person are to be determined on the basis that the person
is the child of the other person.
This tracing rule ensures that family relationships referred to in the
definition of close family member include relationships that are traced
through the child-parent relationship.
The following provides an example of where the tracing rule can be used to
determine a relationship.
J is in a de facto relationship with S. During the relationship J and
S decide that S will undergo an artificial conception procedure using
donated gametes. The procedure takes place and S gives birth to H.
Later, J and S decide to have another child - S will again undergo an
artificial conception procedure using donated gametes, but from a
different source. The procedure takes place and S gives birth to T.
Both procedures comply with the requirements of section 60H of the
Family Law Act, and J and S are therefore both the parents of each of
the children. Whilst T is the child of J and S, he is not the
biological sibling of H.
The use of the tracing rule in this instance will allow T to be
considered to be H's brother because the relationship is traced through
the child-parent relationship that each child has with J and S. This
will continue to be the case even if the relationship between J and S
were to break down at a later time. Without the tracing rule, T will
only be considered to be H's half brother.
Paragraph 390.1(3)(a) will provide that a reference in new Division 9.9 to
an organisation is a reference to an organisation however it is organised.
This makes clear that an organisation need not have formal structures in
place. This reflects the modern nature of organised crime, which often
involves groups that are loosely structured and transient.
Paragraph 390.1(3)(b) will provide that a reference in new Division 9.9 to
a person includes a reference to a person outside Australia. This makes
clear that, for example in section 390.4 (which criminalises providing
support to an organisation), the element that an organisation consists of
two or more persons can include persons who are outside Australia.
Section 390.2 - State offences that have a federal aspect
Section 390.2 will define State offences that have a federal aspect. This
definition is relevant to the Commonwealth connector for the new
association and criminal organisation offences which limits the criminal
conduct to which the criminal organisation offences apply to those within
Commonwealth power. These include Commonwealth offences, State offences
that have a federal aspect, Territory offences and foreign offences that
are constituted by conduct that, if engaged in Australia, would constitute
an offence.
In summary, this definition will provide that a State offence has a federal
aspect if the Commonwealth could have enacted a valid provision covering
the State offence or the specific conduct involved in committing the State
offence or, if the State offence is an ancillary offence, then the primary
offence to which that ancillary offence relates. This section will be
consistent with section 3AA of the Crimes Act 1914 and section 4AA of the
Australian Federal Police Act 1979 which both provide for State offences
that have a federal aspect.
Subdivision B - Offences
Section 390.3 - Associating in support of serious organised criminal
activity
Section 390.3 will create two offences targeting association in support of
serious and organised criminal activity. The purpose of these offences is
to deter persons from supporting organised criminal activity by
criminalising their association with other persons involved in organised
criminal activity.
Under 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.
An example of this type of offence is as follows. Person A meets with
person B on two or more occasions. Person B is proposing to engage in an
illegal operation with four other people involving the import into
Australia of commercial quantities of border controlled drugs (which is an
offence under section 307.1 of the Criminal Code punishable by imprisonment
for life). Person A works at the airport through which person B proposes
to import the drugs, and knows that Person B proposes to engage in the
illegal importation. The purpose of person A's meetings with person B is
to provide advice on how person B may circumvent the airport security
system as part of the operation. In doing so, person A is reckless as to
whether his advice will help person B to engage in the illegal importation.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraphs 390.3(1)(a), (c) and
(d)). Subsection 390.3(3) provides that the fault element for paragraph
(1)(b) is knowledge. To establish this offence, the prosecution will need
to prove beyond reasonable doubt that:
. a person (the first person) intentionally associated with another
person (the second person) on two or more occasions
. the first person knew that the second person engaged, or proposed to
engage, in conduct that constitutes, or is part of conduct
constituting, an offence against any law
. the first person was reckless as to the circumstance that the
associations facilitated the engagement, or proposed engagement, by
the second person in the second person's conduct
. the first person was reckless as to the circumstance that the offence
against any law mentioned in paragraph (b) involved two or more
persons, and
. the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment for at
least 3 years.
The repeat offence under subsection 390.3(2) will apply where a person has
already been convicted of an offence under the basic offence. It will
require proof by the prosecution of the same elements as the basic offence,
except that the prosecution need only prove that the first person
associated with the second person one (or more) times. This offence will
also be punishable by a maximum penalty of three years imprisonment.
The rationale behind the repeat offence lies in the fact that if a person
has already been convicted of the association offence in subsection
390.3(1), any further association (even if it is only once), warrants
criminal sanction.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraphs 390.3(2)(a), (b),
(d) and (e). Subsection 390.3(3) provides that the fault element for
paragraph (2)(c) is knowledge. To establish this offence, the prosecution
would need to prove beyond reasonable doubt that:
. the first person had previously been convicted of an offence against
the basic offence
. the first person intentionally associated with another person (the
second person)
. the first person knew that the second person engaged, or proposed to
engage in conduct that constitutes an offence, or part of conduct
constituting an offence
. the first person was reckless as to the circumstance that the
associations facilitated the engagement, or proposed engagement, by
the second person in the second person's conduct
. the first person was reckless as to the circumstance that the offence
against any law mentioned in paragraph (b) involved two or more
persons, and
. the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment for at
least 3 years.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware of a substantial risk that
the circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take the risk.
As described above, associate will be defined in subsection 390.1(1) to
mean meet or communicate (by electronic communication or otherwise).
Electronic communication will be given a broad definition in
subsection 390.1(1) to capture all forms of electronic communication such
as using a telephone or the Internet. Accordingly, it is not necessary
that the association be in person - it will still be sufficient if the
association occurs, for example, through a mobile phone text message, or
over email.
Offence against any law will be defined in subsection 390.1(1) to mean an
Australian offence or a foreign offence. The latter two terms will also be
defined in subsection 390.1(1) to mean an offence against the law of the
Commonwealth, a State or Territory, and an offence against the law of a
foreign country.
It will be necessary for the prosecution to prove that the person knew that
the second person was either engaged in, or proposing to engage in an
offence against any law. That is, the person must know that the person
that they are associating with is either carrying out, or proposing to
carry out, crime.
The association must facilitate the engagement or proposed engagement by
the second person in crime. This requirement is important in limiting the
scope of the offence to associations that facilitate organised crime. That
is, it is intended that the association must in some way help, or enhance
the ability of, the second person to engage in serious organised criminal
activity. It will not be sufficient that the association merely coincide
temporally with the commission of criminal activity. For example, the
offence would not extend to providing a coat to a criminal going out to
commit an offence on a cold night.
Paragraphs 390.3(1)(d) and (e) and 390.3(2)(e) and (f) set out the elements
which require proof that the crime which the second person is engaging in,
or proposing to engage in (and that the person's association facilitates),
is serious organised criminal activity.
The offence against any law mentioned in paragraph (b) (the offence that
the second person engaged, or proposes to engage in) must involve two or
more persons (paragraphs 390.3(1)(d) and 390.3(2)(e)). The number of
persons required for criminal activity to become 'organised criminal
activity' varies internationally, however it is generally described as
involving a minimum of two or three persons. To ensure consistency, the
requirement that the offence which the second person is engaging in, or
proposing to engage in, involves two or more persons draws on the existing
Commonwealth definition of serious and organised crime. 'Serious and
organised crime' is defined in subsection 4(1) of the ACC Act as an offence
that involves two or more offenders. Several State and Territory
jurisdictions also define organised criminal activity with reference to
involving two or more persons.
It is intended that the term 'involves' be interpreted broadly. It will
capture circumstances where the persons have participated in (or proposed
to participate in) the commission of the conduct constituting the physical
elements of the offence. However, it will also capture where the persons
may not have been involved in (or have not proposed to be involved in) the
actual commission of the physical elements of the offence, but were
involved in the planning and organisation leading up to the commission of
the offence.
Absolute liability will apply to paragraphs 390.3(1)(e) that the offence
against any law mentioned in paragraph (b) and 390.3(2)(f) that the offence
in paragraph (c) (the offence which the second person commits, or proposes
to commit, which the association facilitates) is a constitutionally covered
offence punishable by imprisonment for at least 3 years (subsection
390.3(4)). A constitutionally covered offence punishable by imprisonment
for at least 3 years will be defined in subsection 390.1(1) and is
described in the section on definitions above.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of fact
is not available. Accordingly, the prosecution will not be required to
prove that the person knew that the offence against any law mentioned in
paragraph (b) is a constitutionally covered offence punishable by
imprisonment for at least 3 years.
Absolute liability is appropriate and required for the element that the
offence referred to in paragraph (b) is a constitutionally covered offence
because this circumstance of the offence is a jurisdictional element. 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 and
those that do not. This is consistent with Commonwealth criminal law
practice, as described in the Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers.
Absolute liability is appropriate and required for the element that the
offence referred to in paragraph (1)(b) or 2(c) is an offence punishable by
imprisonment for at least three years because the circumstance that the
offence is punishable by imprisonment for at least three years, similar to
a jurisdictional element, is not an element going to the substance of the
offence. If it can be proven that the offence was a serious offence, it is
not necessary to require proof that the person knew it was an offence
carrying a certain number of years.
It will not be necessary for the prosecution to prove the identity of the
two or more people involved in the organised criminal activity (subsection
390.3(5)).
Defences will be available to defendants for certain kinds of associations
(subsection 390.3(6)). This will ensure that the policy objectives of the
offence are balanced with the need to protect certain fundamental civil
liberties. The association offences will not apply where the association
is:
. with a close family member
. in a place being used for public religious worship and takes place in
the course of practicing a religion
. only for the purpose of providing aid of a humanitarian nature, or
. only for the purpose of providing legal advice or legal representation
in connection with:
o criminal proceedings
o proceedings relating to the actual or possible declaration of an
organisation under State and Territory criminal organisation
laws, or
o proceedings for a review of a decision relating to a passport or
other travel document, or a failure to issue such a passport or
travel document.
In relation to the exception provided for where the association is with a
close family member, the association must relate only to matters that could
be regarded (taking into account the person's cultural background) as
matters of family or domestic concern. The definition of close family
member will be set out in subsection 390.1(1) and the scope of this
definition is described above.
This exception, and the exception based on public religious worship, are
based on similar exceptions provided for in both the comparable terrorism
offence in section 102.8 of the Criminal Code (associating with terrorist
organisations) and section 100A of the Crimes (Sentencing Procedure) Act
1999 No. 92 (NSW). Exceptions relating to education, employment and
residence are not included because of the potential for misuse of these
kinds of exceptions by those with links to persons involved in serious
organised criminal activity.
An exception is also provided for the case where the association is only
for the purpose of providing aid of a humanitarian nature. This exception
is intended to apply to persons undertaking humanitarian aid who, through
the course of providing such humanitarian aid, associate with a person who
is involved in serious organised criminal activity.
Exceptions are also provided for where the association is only for the
purpose of providing legal advice or legal representation in connection
with certain specified proceedings. These exceptions are designed to
ensure that lawyers who provide advice to, or act on behalf of, a person
who is involved in serious organised criminal activity are not liable under
the provision. It is important that those suspected of associating with
organised criminals are not prevented from obtaining legal advice. The
three exceptions specified relating to legal advice or representation are
as follows.
Firstly, the exceptions provide a defence where the association is only for
the purpose of providing legal advice of legal representation in connection
with criminal proceedings or proceedings related to criminal proceedings
(including possible criminal proceedings in the future). This is intended
to be broad in its scope, covering any criminal proceedings, or any other
proceedings related to criminal proceedings.
Secondly, the exceptions provide a defence where the association is only
for the purpose of providing legal advice or legal representation in
connection with proceedings relating to actual or possible declaration
(however described) of an organisation under certain listed or prescribed
State and Territory criminal organisation control laws. Existing State
Acts directed at the declaration of criminal organisations are listed in
subparagraphs 390.3(6)(e)(i) and (ii), and provision is made in
subparagraph 390.3(6)(3)(iii) for the prescription of State or Territory
Acts of the same kind which may come into force in the future. Given that
the definition of constitutionally covered offence punishable by
imprisonment for at least three years in subsection 390.1(1) will include
State offences that have a federal aspect and Territory offences, it is
important to ensure that lawyers providing advice to, or acting on behalf
of, persons that are subject to State or Territory proceedings relating to
the declaration of criminal organisations are not liable under the new
association offences.
Thirdly, the exceptions provide a defence where the association is only for
the purpose of providing legal advice or representation in connection with
proceedings for a review of a decision relating to a passport or other
travel document, or to a failure to issue such a passport or other travel
document. This includes a passport or other travel document that was, or
would have been, issued by or on behalf of the government of a foreign
country. Given the transnational nature of organised crime, it is possible
that a person involved in organised criminal activity may also be involved
in proceedings relating to passport or other travel documents.
A defendant wishing to rely on any of the exceptions in subsection 390.3(6)
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) of the Criminal Code and requires the defendant to
adduce or point to evidence that suggests a reasonable possibility that the
matter exists or does not exist. The prosecution would then need to refute
this beyond reasonable doubt.
The use of the evidential burden defence is consistent with
Commonwealth criminal law policy, as described in the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers. The
Guide refers to the principle that it is legitimate to cast a matter as
an evidential burden defence where a matter is peculiarly within the
defendant's knowledge and is not available to the prosecution.
A person who is convicted of an offence under subsections 390.3(1) or
390.3(2) in relation to the person's conduct on two or more occasions is
not liable to be punished for an offence under subsections 390.3(1) or
390.3(2) for other conduct of the person that takes place at the same time
as that conduct or within 7 days before or after any of those occasions
(subsection 390.3(7)). This will avoid raising the prospect of a
multiplicity of charges concerning the same course of conduct.
The offences are by necessity wide-ranging in terms of the type of
activities or persons who might be subject to it. For this reason,
subsection 390.3(8) will be included to avoid impugning the implied
constitutional freedom of political communication. This will cover
associations that are for purely political communication for the purposes
of the Constitution. For example, the exception could apply to a
journalist interviewing a person involved in serious organised criminal
activity for a documentary.
Sections 390.4 to 390.6 - Criminal organisation offences
Sections 390.4 to 390.6 set out three offences aimed at criminalising
varying levels of involvement in the activities of a criminal organisation.
They criminalise supporting a criminal organisation, at the lower end of
the spectrum of seriousness, to committing offences for a criminal
organisation, and then to directing the activities of a criminal
organisation, at the higher end of the spectrum of seriousness.
Section 390.4 - Supporting a criminal organisation
Section 390.4 will create an offence of supporting a criminal organisation.
The purpose of this section is to criminalise the provision of support or
resources to a criminal organisation, in order to help the organisation
commit criminal activity. It is aimed at conduct more serious than that
criminalised by the association offence, as it is intended to apply to
supporting the activities of a criminal group (as opposed to supporting the
commission of organised crime). This offence differs from traditional
aiding and abetting type offences, in that it is not a requirement that the
offence which the support or resources helps the organisation to commit
actually be committed.
Under subsection 390.4(1), it will be an offence to provide material
support or resources to a criminal organisation, where the support or
resources aids the organisation in committing serious offences. This
offence will be punishable by a maximum penalty of five years imprisonment.
An example of this type of offence is as follows. Person A is a financial
expert. Persons B, C and D are members of a criminal organisation. Person
A provides significant advice and training to persons B, C and D on how
they might go about engaging in the money laundering of specific illicit
profits of crime (in breach of an offence in section 400.4 of the Criminal
Code of dealing in proceeds of crime etc - money or property worth $100,000
or more, which carries penalties of up to 20 years imprisonment).
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraphs 390.4(1)(a) - (d).
To establish this offence, the prosecution would need to prove beyond
reasonable doubt that:
. the person intentionally provided material support or resources to an
organisation or a member of an organisation
. the person was reckless as to the circumstance that the provision of
the support or resources aided, or there was a risk that the provision
of the support or resources would aid, the organisation to engage in
conduct constituting an offence against any law
. the person was reckless as to the circumstance that the organisation
consists of two or more persons
. the person was reckless as to the circumstance that the organisation's
aims or activities include facilitating the engagement in conduct, or
engaging in conduct, constituting an offence against any law that is,
or would if committed be, for the benefit of the organisation
. the offence against any law mentioned in paragraph (d) is an offence
against any law punishable by imprisonment for at least 3 years, and
. the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment for at
least 12 months.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware of a substantial risk that
the circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take the risk.
The support or resources provided to the organisation or member of an
organisation must be 'material'. The requirement that the support or
resources must be 'material' is included to reflect certain recommendations
made relating to the comparable terrorism offence in section 102.7 of the
Criminal Code (providing support to a terrorist organisation). Recent
reviews of this provision by the Security Legislation Review Committee
(Sheller Committee) and the Parliamentary Joint Committee on Intelligence
and Security (PJCIS) concluded that the lack of clarity around the word
'support' may suggest that the offence could extend beyond its original
intended application.
The PJCIS recommended that the terrorism offence be amended to provide for
'material support' to remove any ambiguity. Accordingly, the criminal
organisation offence will include such a requirement. This will make clear
that the level of support required to commit the offence goes beyond mere
support and is support that is real and concrete.
The support or resources may be provided to the organisation as a whole,
however it will also be sufficient where the support or resources are
provided to a specific member of the organisation. It is intended that
'member' will take the ordinary common meaning. Following a finding by the
court that a criminal organisation existed for the purposes of the offence,
it will be for the court to decide whether the person to which the support
or resources was given was a 'member', in the ordinary sense of the word,
of the criminal organisation.
The support or resources must aid, or there must have been a risk that the
support or resources would aid, the organisation to engage in conduct
constituting an offence against any law. That is, there must be a
sufficiently strong link between the provision of the support or resources,
and the commission of the offence by the organisation. With reference to
the above example, person A must be reckless as to the fact that his advice
and training will be, or that there is a risk that it will be, used by
persons B, C and D to commit an offence in relation to dealings with
proceeds of crime.
To avoid doubt, subsection 390.4(3) states that a person may be convicted
of an offence against subsection (1) where there is a risk that the
provision of support or resources will aid the organisation to commit a
crime, even if the support or resources does not actually aid the
commission of a crime.
Paragraphs 390.4(1)(c) to (e) set out the elements which require proof that
the organisation is a criminal organisation.
The organisation must consist of two or more persons (paragraph
390.4(1)(c)). The number of persons required for criminal activity to
become organised criminal activity varies internationally, however it is
generally described as involving a minimum of two or three persons.
'Serious and organised crime' is defined in subsection 4(1) of the ACC Act
as an offence that involves two or more offenders. Several State and
Territory jurisdictions also define organised criminal activity with
reference to involving two or more persons. To ensure consistency, the
offence reflects these existing Commonwealth, State and Territory
definitions.
The organisation's aims or activities must include facilitating the
engagement in conduct, or engaging in conduct, constituting an offence
against any law (paragraph (d)). This is directed at aims or activities
which facilitate the commission of crime, and aims or activities which
constitute crime, by the criminal organisation. An example of the former
may be where the organisation has as one of its activities the acquisition
of weapons for the purpose of committing armed robberies. An example of
the latter may be where the organisation has as one of its aims the
commission of armed robberies. The offence against any law must, or would
if committed be, for the benefit of the organisation (paragraph (d)).
Something is for the benefit of the organisation when it meets the
definition of for the benefit of which will be defined in subsection
390.1(1) and is described above in the section on definitions.
Absolute liability will apply to paragraph 390.4(1)(e), that the offence
against any law mentioned in paragraph (d) (the offence which the
organisation has as one of its aims or activities to commit, or facilitate
commission in) is an offence against any law punishable by imprisonment for
at least three years. An offence against any law punishable by
imprisonment for at least 3 years will be defined in subsection 390.1(1)
and is described above in the section on definitions.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of fact
is not available. Accordingly, the prosecution will not be required to
prove that the person knew that the offence against any law mentioned in
paragraph (d) is an offence punishable by imprisonment for at least 3
years.
Absolute liability is appropriate and required for the element that the
offence referred to in paragraph (b) is an offence punishable by
imprisonment for at least three years because the circumstance that the
offence is punishable by imprisonment for at least three years, is not an
element going to the substance of the offence. If it can be proven that
the offence was a serious offence (ie carrying a penalty of at least three
years), it is not necessary to require proof that the person knew it was an
offence carrying a certain number of years.
Absolute liability will also apply to paragraph 390.4(1)(f), that the
offence against any law mentioned in paragraph (b) (the specific offence
which the support or resources aids the organisation to commit) is a
constitutionally covered offence punishable by imprisonment for at least 12
months. A constitutionally covered offence punishable by imprisonment for
at least 12 months will be defined in subsection 390.1(1) and is described
above in the section on definitions.
Absolute liability is appropriate and required for the element that the
offence referred to in paragraph (b) is a constitutionally covered offence
because this circumstance is a jurisdictional element of the 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 and
those that do not. This is consistent with Commonwealth criminal law
practice, as described in the Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers.
Absolute liability is appropriate and required for the element that the
offence referred to in paragraph (b) is an offence punishable by
imprisonment for at least 12 months because the circumstance that the
offence is punishable by imprisonment for at least 12 months, similar to a
jurisdictional element, is not an element going to the substance of the
offence. If it can be proven that the offence was a serious offence, it is
not necessary to require proof that the person knew it was an offence
carrying a certain number of months or years.
Section 390.5 - Committing an offence for the benefit of, or at the
direction of, a criminal organisation
Section 390.5 will criminalise committing an offence for the benefit of, or
at the direction of, a criminal organisation. This is more serious than
the supporting offence in section 390.4, which is directed at the provision
of support which helps the criminal organisation to commit offences. The
purpose of this offence is to criminalise the actual commission of offences
by a person for a criminal organisation.
Under subsection 390.5(1), it will be an offence to commit an offence for
the benefit of a criminal organisation. This offence will be punishable by
a maximum penalty of seven years imprisonment.
An example of this type of offence is as follows. Person A engages in
trafficking commercial quantities of controlled drugs (an offence under
section 302.2 of the Criminal Code, punishable by imprisonment for life).
The profits received from the trafficking of the drugs go to the criminal
organisation, or members of the criminal organisation.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraphs 390.5(1)(b) - (d).
Subsection 390.5(3) provides that there is no fault element for the
physical elements described in paragraph (a) other than the fault elements
(however described), if any, for the underlying offence. To establish this
offence, the prosecution would need to prove beyond reasonable doubt that:
. the person has committed an offence against any law (the underlying
offence)
. the person is reckless as to the result that the underlying offence is
for the benefit of an organisation
. the person is reckless as to the circumstance that the organisation
consists of 2 or more persons
. the person is reckless as to the circumstance that the organisations
aims or activities include facilitating the engagement in conduct, or
engaging in conduct, constituting an offence against any law that is,
or would if committed be, for the benefit of the organisation
. the offence against any law mentioned in paragraph (d) is an offence
against any law punishable by imprisonment for at least 3 years, and
. the underlying offence is a constitutionally covered offence
punishable by imprisonment for at least 12 months.
Under subsection 390.5(2), it will be an offence to commit an offence at
the direction of a criminal organisation. This offence will be punishable
by a maximum penalty of seven years imprisonment.
An example of this kind of offence is as follows. Person A engages in the
trafficking of illegal firearms across State and Territory borders (an
offence under section 360.3 of the Criminal Code, punishable by up to
10 years imprisonment). Person A engaged in the trafficking of the
firearms at the direction of person B, who is a member of a criminal
organisation.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraphs 390.5(2)(b) - (d).
Subsection 390.5(3) provides that there is no fault element for the
physical elements described in paragraph (a) other than the fault elements
(however described), if any, for the underlying offence. To establish this
offence, the prosecution would need to prove beyond reasonable doubt that:
. the person has committed an offence against any law (the underlying
offence)
. the person is reckless as to the circumstance that they engaged in the
conduct constituting the underlying offence at the direction of an
organisation or a member of an organisation
. the person is reckless as to the circumstance that the organisation
consists of two or more persons
. the person is reckless as to the circumstance that the organisations
aims or activities include facilitating the engagement in conduct, or
engaging in conduct, constituting an offence against any law that is,
or would if committed be, for the benefit of the organisation
. the offence against any law mentioned in paragraph (d) is an offence
against any law punishable by imprisonment for at least 3 years, and
. the underlying offence is a constitutionally covered offence
punishable by imprisonment for at least 12 months.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware of a substantial risk that
the circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take the risk.
Under the offence in subsection 390.5(1), the underlying offence must be
for the benefit of a criminal organisation. The definition of for the
benefit of is set out in subsection 390.1(1) and is described above in the
section on definitions. An offence will be for the benefit of an
organisation if the offence results or is likely to result in the
organisation receiving directly or indirectly a significant benefit of any
kind. The definition covers offences which actually benefit the
organisation, and offences that are likely to result in a benefit for the
organisation. Accordingly, it will be sufficient for the prosecution to
prove that the offence could have benefited the organisation; it will not
be necessary for the prosecution to prove that the offence actually did
result in a benefit for the organisation.
Under the offence in subsection 390.5(2), the underlying offence must be
committed at the direction of the organisation. It is intended that the
requirement that the underlying offence be 'at the direction of' a criminal
organisation be interpreted broadly. For the offence to be at the
direction of a criminal organisation, it will not be necessary to prove
that the organisation (or member of the organisation) has specifically
instructed that the person commit the underlying offence. It will be
sufficient to prove that the organisation or member of the organisation
encouraged, in any way, the commission of the underlying offence.
As described above in relation to the supporting offence in section 390.4,
it is intended that 'member' will take the ordinary common meaning.
Paragraphs 390.5(1)(c) to (e) and 390.5(2)(c) to (e) set out the elements
which require proof that the organisation is a criminal organisation.
The organisation must consist of two or more persons (paragraph (c)). The
number of persons required for criminal activity to become organised
criminal activity varies internationally, however it is generally described
as involving a minimum of two or three persons. In Australia, 'serious and
organised crime' is defined in subsection 4(1) of the ACC Act as an offence
that involves two or more offenders. Several State and Territory
jurisdictions also define organised criminal activity with reference to
involving two or more persons. To ensure consistency, the offence reflects
these existing Commonwealth, State and Territory definitions.
The organisation's aims or activities must include facilitating the
engagement in conduct, or engaging in conduct, constituting an offence
against any law (paragraph (d)). This is directed at aims or activities
which facilitate the commission of crime by the organisation, and aims or
activities which involve committing crime. An example of the former may be
where the organisation has as one of its activities the acquisition of
weapons for the purpose of committing armed robberies. An example of the
latter may be where the organisation has as one of its aims the commission
of armed robberies. The offence against any law must, or would if
committed be, for the benefit of the organisation (paragraph (d)).
Something is for the benefit of the organisation when it meets the
definition of for the benefit of which will be defined in subsection
390.1(1) and is described above in the section on definitions.
Absolute liability will apply to paragraph (e), that the offence against
any law mentioned in paragraph (d) (the offence which the organisation has
as one of its aims or activities to facilitate commission in, or to commit)
is an offence against any law punishable by imprisonment for at least three
years. An offence against any law punishable by imprisonment for at least
3 years will be defined in subsection 390.1(1) and is described above in
the section on definitions.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of fact
is not available. Accordingly, the prosecution will not be required to
prove that the person knew that the offence against any law mentioned in
paragraph (d) is an offence punishable by imprisonment for at least 3
years.
Absolute liability is appropriate and required for the element that the
offence referred to in paragraph (b) is an offence punishable by
imprisonment for at least three years because the circumstance that the
offence is punishable by imprisonment for at least three years, is not an
element going to the substance of the offence. If it can be proven that
the offence was a serious offence (ie carrying a penalty of at least three
years), it is not necessary to require proof that the person knew it was an
offence carrying a certain number of years.
Absolute liability will also apply to paragraphs 390.5(1)(f) and
390.5(2)(f), that the underlying offence (the offence that is committed for
the benefit, or at the direction, of a criminal organisation) is a
constitutionally covered offence punishable by imprisonment for at least 12
months. A constitutionally covered offence punishable by imprisonment for
at least 12 months will be defined in subsection 390.1(1) and is described
above in the section on definitions.
Absolute liability is appropriate and required for the element that the
underlying offence is a constitutionally covered offence because this
circumstance is a jurisdictional element of the 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 and those that do
not. This is consistent with Commonwealth criminal law practice, as
described in the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers.
Absolute liability is appropriate and required for the element that the
underlying offence is an offence punishable by imprisonment for at least 12
months because the circumstance that the offence is punishable by
imprisonment for at least 12 months, similar to a jurisdictional element,
is not an element going to the substance of the offence. If it can be
proven that the offence was a serious offence, it is not necessary to
require proof that the person knew it was an offence carrying a certain
number of months or years.
A person may commit an offence against subsections 390.5(1) or 390.5(2)
even if the person has not been convicted of the underlying offence, or
been subject to an order under section 19B (Discharge of orders without
proceeding to conviction) of the Crimes Act, or a corresponding law of a
State, Territory, or foreign country, relating to the underlying offence
(subsection 390.5(5)). This will make clear that the prosecution will not
be required to prove that the person has been convicted (or an order made
discharging the orders without proceeding to conviction) of the underlying
offence.
The rules against double jeopardy will apply to the offences in section
390.5. Section 4C of the Crimes Act automatically applies to prevent a
person from being punished twice under two Australian offences for the same
conduct. This will mean that a person cannot be punished under an offence
in section 390.5 and under the Commonwealth, State or Territory law
creating the underlying offence, for the same conduct.
Further, if a person has been convicted or acquitted of a foreign offence
in respect of conduct, a person cannot be convicted of an offence against
section 390.5 in respect of that conduct (subsection 390.5(6)). This will
ensure that where the underlying offence is a foreign offence, and the
person has already been convicted or acquitted of that offence, the person
cannot be convicted of an offence under section 390.5.
To avoid doubt, subsection 390.5(7) states that a person may be convicted
of an offence against subsection 390.5(1) where the underlying offence is
likely to result in the organisation or at least one member receiving
benefits, even if the organisation or member does not actually receive such
a benefit. This will make clear that the prosecution does not have to
prove that the organisation or a member of the organisation actually did
receive a benefit.
Section 390.6 - Directing the activities of a criminal organisation
Section 390.6 will make it an offence to direct the activities of a
criminal organisation. This offence is aimed at conduct more serious than
the previous offence of committing an offence for, or at the direction of,
a criminal organisation. The purpose of this section is to criminalise the
conduct of those high up in the criminal organisation in positions of
authority, who direct the activities of the organisation. It recognises
the particular seriousness of directing behaviour in relation to organised
crime groups.
Under subsection 390.6(1), it will be an offence to direct one or more
activities of a criminal organisation, where the activities directed aid,
or there is a risk that they will aid, the criminal organisation to engage
in the commission of an offence. This offence will be punishable by a
maximum penalty of ten years imprisonment.
An example of this type of conduct is as follows. Persons A, B, C and D
are all members of a criminal organisation. Person A asks persons B, C and
D to purchase various pieces of equipment that are necessary to cultivate
commercial quantities of controlled plants. The purchase of the equipment
aids the organisation to engage in the cultivation of commercial quantities
of controlled plants (an offence against section 303.4 of the Criminal
Code, punishable by imprisonment for up to 10 years).
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraphs 390.6(1)(a) - (d).
To establish this offence, the prosecution would need to prove beyond
reasonable doubt that:
. the person intentionally directed one or more activities of an
organisation
. the person is reckless as to the result that the activity or
activities directed aided, or that there was a risk that the activity
or activities would aid, the organisation to engage in conduct
constituting an offence against any law
. the person is reckless as to the circumstance that the organisation
consists of 2 or more persons
. the person is reckless as to the circumstance that the organisations
aims or activities include facilitating the engagement in conduct, or
engaging in conduct, constituting an offence against any law that is,
or would if committed be, for the benefit of the organisation
. the offence against any law mentioned in paragraph (d) is an offence
against any law punishable by imprisonment for at least 3 years, and
. the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment for at
least 12 months.
Under subsection 390.6(2), it will be an offence to direct the activities
of a criminal organisation where the activities constitute an offence.
This offence will be punishable by a maximum penalty of 15 years
imprisonment.
An example of this type of offence is as follows. Persons A, B, C and D
are all members of a criminal organisation. Person A asks persons B, C and
D to engage in the cultivation of commercial quantities of controlled
plants. The cultivation of commercial quantities of controlled plants is
an offence under section 303.4 of the Criminal Code, punishable by
imprisonment for up to 10 years.
Section 5.6 of the Criminal Code will apply automatic fault elements to the
physical elements of the offence set out in paragraphs 390.6(2)(a) - (d).
To establish this offence, the prosecution would need to prove beyond
reasonable doubt that:
. the person intentionally directed one or more activities of an
organisation
. the person is reckless as to the result that the activity or
activities directed constitute an offence against any law
. the person is reckless as to the circumstance that the organisation
consists of 2 or more persons
. the person is reckless as to the circumstance that the organisations
aims or activities include facilitating the engagement in conduct, or
engaging in conduct, constituting an offence against any law that is,
or would if committed be, for the benefit of the organisation
. the offence against any law mentioned in paragraph (d) is an offence
against any law punishable by imprisonment for at least 3 years, and
. the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment for at
least 12 months.
Section 5.4 of the Criminal Code provides that a person is reckless with
respect to a circumstance if he or she is aware of a substantial risk that
the circumstance exists or will exist and, having regard to the
circumstances known to him or her, it is unjustifiable to take the risk.
Under both offences, a person must intentionally direct one or more
activities of an organisation. This is intended to apply broadly. The
element would be satisfied where a person has expressly requested that
certain activities occur. However, it would also be sufficient to prove
that the activities were encouraged in any way, for example, where the
direction was implied. This element will be satisfied whether the person
directs one or more specific members of the organisation, or directs the
organisation generally (such as by sending an email or text message to many
or all members of an organisation).
Under the offence in subsection 390.6(1), the activity or activities
directed must aid, or there must be a risk that the activity or activities
will aid, the organisation to engage in conduct constituting an offence.
With reference to the above example for subsection 390.6(1), where the
person directed that members of the organisation purchase pieces of
equipment, the prosecution would need to prove that the purchase of the
equipment aided, or there was a risk that the purchase of the equipment
aided the organisation in committing an offence relating to the cultivation
of commercial quantities of controlled plants.
To avoid doubt, subsection 390.6(4) states that a person may be convicted
of an offence against the offence in subsection 390.6(1) where there is a
risk that the activity or activities directed will aid the organisation to
engage in the commission of an offence, even if the activity or activities
directed do not actually aid the commission of the offence.
Under the offence in subsection 390.6(2), the activity or activities
directed must constitute an offence. With reference to the above example
for subsection 390.6(2), where the person directed that members of the
organisation cultivate commercial quantities of controlled plants, the
prosecution would need to prove that this constitutes an offence.
Paragraphs 390.6(1)(c) to (e) and 390.6(2)(c) to (e) set out the elements
which require proof that the organisation is a criminal organisation.
The organisation must consist of two or more persons (paragraph (c)). The
number of persons required for criminal activity to become organised
criminal activity varies internationally, however it is generally described
as involving a minimum of two or three persons. In Australia, 'serious and
organised crime' is defined in subsection 4(1) of the ACC Act as an offence
that involves two or more offenders. Several State and Territory
jurisdictions also define organised criminal activity with reference to
involving two or more persons. To ensure consistency, the offence reflects
these existing Commonwealth, State and Territory definitions.
The organisation's aims or activities must include facilitating the
engagement in conduct, or engaging in conduct, constituting an offence
against any law (paragraph (d)). This is directed at aims or activities
which facilitate the commission of crime by the organisation, and aims or
activities which involve committing crime. An example of the former may be
where the organisation has as one of its activities the acquisition of
weapons for the purpose of committing armed robberies. An example of the
latter may be where the organisation has as one of its aims the commission
of armed robberies. The offence against any law must, or would if
committed be, for the benefit of the organisation (paragraph (d)).
Something is for the benefit of the organisation when it meets the
definition of for the benefit of which will be defined in subsection
390.1(1) and is described above in the section on definitions.
Absolute liability will apply to paragraph (e), that the offence against
any law mentioned in paragraph (d) (the offence which the organisation has
as one of its aims or activities to commit, or facilitate commission in) is
an offence against any law punishable by imprisonment for at least three
years. An offence against any law punishable by imprisonment for at least
3 years will be defined in subsection 390.1(1) and is described above in
the section on definitions.
Absolute liability is set out in section 6.2 of the Criminal Code. The
effect of applying absolute liability to an element of an offence means
that no fault element needs to be proved and the defence of mistake of fact
is not available. Accordingly, the prosecution will not be required to
prove that the person knew that the offence against any law mentioned in
paragraph (d) is an offence punishable by imprisonment for at least 3
years.
Absolute liability is appropriate and required for the element that the
offence referred to in paragraph (b) is an offence punishable by
imprisonment for at least three years because the circumstance that the
offence is punishable by imprisonment for at least three years, is not an
element going to the substance of the offence. If it can be proven that
the offence was a serious offence (ie carrying a penalty of at least three
years), it is not necessary to require proof that the person knew it was an
offence carrying a certain number of years.
Absolute liability will also apply to paragraphs 390.6(1)(f) and
390.6(2)(f), that the offence mentioned in paragraph (b) (the offence which
is committed as a result of the activities directed, or as a result of the
direction) is a constitutionally covered offence punishable by imprisonment
for at least 12 months. A constitutionally covered offence punishable by
imprisonment for at least 12 months will be defined in subsection 390.1(1)
and is described above in the section on definitions.
Absolute liability is appropriate and required for the element that offence
mentioned in paragraph (b) is a constitutionally covered offence because
this circumstance is a jurisdictional element of the 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 and
those that do not. This is consistent with Commonwealth criminal law
practice, as described in the Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers.
Absolute liability is appropriate and required for the element that the
offence mentioned in paragraph (b) is an offence punishable by imprisonment
for at least 12 months because the circumstance that the offence is
punishable by imprisonment for at least 12 months, similar to a
jurisdictional element, is not an element going to the substance of the
offence. If it can be proven that the offence was a serious offence, it is
not necessary to require proof that the person knew it was an offence
carrying a certain number of months or years.
Section 390.7 - Extended geographical jurisdiction - category C
Section 390.7 will apply extended geographical jurisdiction - category C to
the offences created by sections 390.3, 390.4, 390.5 and 390.6. This means
that the offences will extend to conduct by an Australian citizen or an
Australian body corporate outside Australia. It will also allow the
application of the offences to conduct by Australian residents or foreign
nationals overseas where there is an equivalent offence in the law of the
local jurisdiction. Section 15.3 of the Criminal Code sets out the
definition of extended geographical jurisdiction - category C.
The application of extended geographical jurisdiction (category C) reflects
the increasingly transnational nature of organised crime, which often
involves multiple participants in multiple countries. In an operational
example provided by the AFP, a global organisation believed to be
controlled from Dubai provides money laundering services to a large number
of Australian organised crime groups. It is estimated that the group is
moving over $150 million each year. The application of extraterritorial
jurisdiction to the offences will enhance the ability of Australian law
enforcement agencies to collaborate with offshore partners in pursuance of
a 'top down' strategy for dismantling such transnational money laundering
syndicates.
Item 2 - Dictionary in the Criminal Code
Item 2 inserts a definition of federal aspect into the Dictionary of the
Criminal Code which will refer to the definition of federal aspect set out
in section 390.2 in the definition of state offences that have a federal
aspect.
Item 3 - Application of sections 390.3, 390.4, 390.5 and 390.6 of the
Criminal Code
Item 3 ensures that the new organised crime offences set out in sections
390.3, 390.4, 390.5 and 390.6 will only apply if all the relevant conduct
was engaged in after the commencement of those sections.
Telecommunications (Interception and Access) Act 1979
Item 4
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 4 will amend section 5D of the TIA Act to include the new Commonwealth
offences relating to involvement in serious and organised crime.
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 offences for which a telecommunications interception warrant may be
applied for will include:
. associating in support of serious organised criminal activity
. supporting a criminal organisation
. committing an offence for the benefit of, or at the direction of, a
criminal organisation, and
. directing the activities of a criminal organisation.
Schedule 5 - Money laundering
GENERAL OUTLINE
Part 1 of Schedule 5 amends the Criminal Code Act 1995 to enhance the
ability of law enforcement agencies to investigate and prosecute the money
laundering offences in Division 400. The amendments will address a number
of impediments to the investigation and prosecution of the money laundering
offences identified by the Australian Federal Police and the Commonwealth
Director of Public Prosecutions. In particular, the amendments extend the
geographical jurisdiction of those offences and remove limitations on the
scope of the offences to enable them to apply to the full extent of the
Commonwealth's constitutional power in this area.
Part 2 of Schedule 5 amends the Anti-Money Laundering and Counter-Terrorism
Financing Act 2006 (AML/CTF Act) to improve its operation and enhance
AUSTRAC's ability to take enforcement action against reporting entities
that do not comply with their obligations under the AML/CTF Act.
Part 1 - Criminal Code Act 1995
Items 1, 2 and 3 - Subsection 400.1(1) of the Criminal Code (definition of
instrument of crime and proceeds of crime)
Items 1 and 3 amend the definitions of 'instrument of crime' and 'proceeds
of crime' to clarify that the money laundering offences in Division 400 of
the Criminal Code apply to instruments or proceeds of crime in relation to
all indictable offences. This reflects the original policy intention of
the amendments.
Instrument of crime and the proceeds of crime are defined for the purposes
of Division 400 as including money or property that is related to "an
offence that may be dealt with as an indictable offence (even if it may, in
some circumstances, be dealt with as a summary offence)."
Offence is defined in the dictionary of the Criminal Code as "an offence
against a law of the Commonwealth." The effect of the definition of
offence is that 'instrument of crime' and 'proceeds of crime' may not apply
in relation to a State, Territory or foreign indictable offence.
Items 1 and 3 will remove that uncertainty.
Item 2 amends the definition of proceeds of crime to include money or other
property, wholly or partly derived or realised, whether directly or
indirectly, by any person from the commission of a Commonwealth, State,
Territory or foreign indictable offence even if it may be dealt with
summarily in some circumstances.
These items will ensure consistency with the definitions of 'instrument of
crime' and 'proceeds of crime' in the Proceeds of Crime Act 2002.
Item 4 - Section 400.2 of the Criminal Code
Item 4 repeals section 400.2 to introduce new sections which separate the
conduct of 'dealing with money or property' and the circumstances that
surround the dealing.
In this amendment, section 400.2 focuses on the conduct of 'dealing with
money or other property' and retains the conduct set out in the existing
paragraph 400.2(1)(a).
This item also amends the provisions in section 400.2 that deal with the
application of the money laundering offences in Division 400.
It is not necessary to include an application provision for the money
laundering offences insofar as they relate to the laundering of proceeds of
crime because these aspects of the offences are wholly supported under s
51(xxix) of the Constitution by reference to the Council of Europe
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds
of Crime (CoE Convention), to which Australia is a party.
However, an application provision is necessary for the money laundering
offences insofar as they relate to the laundering of instruments of crime
as these aspects of the offences are not supported by the CoE Convention.
Item 4 therefore introduces section 400.2A, which sets out the
circumstances in which the dealing with money or other property that is an
instrument of crime must occur in order to attract the application of the
offences. This section limits the application of the offences, to the
extent they apply to instruments of crime, to specified circumstances
within Commonwealth legislative power. Subsection 400.2A(3) provides that
the offences apply where the money or other property is intended to become,
or is at risk of becoming, an instrument of crime in relation to an offence
within Commonwealth legislative power. Subsection 400.2A(4) provides that
the offences apply where the dealing with the money or other property that
is intended to become, or is at risk of becoming, an instrument of crime
occurs in the course of importation or exportation, by means of a postal,
telegraphic or telephonic service, in the course of banking or outside
Australia.
Subsection 400.2A(6) provides that absolute liability applies to
subsections (3) and (4) as these subsections are both jurisdictional
elements. The effect of applying absolute liability to these elements will
be that no fault element needs to proved and the defence of mistake of fact
will not be available. 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 and those that do not. Absolute liability is
appropriate and required for these elements of the offences. This is
consistent with Commonwealth criminal law policy, as described in the Guide
to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers,
and consistent with the approach taken in other offences in the Criminal
Code.
Items 5 - 15 - Insertion of a reference to s400.2A at the end of
sections 400.3 - 400.8
These items are consequential on Item 4 and introduce notes at the end of
the offences at sections 400.3-400.8 which explain that section 400.2A
affects the application of the money laundering offences so far as the
offences relate to the instruments of crime.
Item 16 - Subsection 400.9(1) of the Criminal Code - creation of a
graduated offence with a $100,000 threshold for dealing with money or
property reasonably suspected of being the proceeds of crime
Item 16 amends section 400.9 to introduce a higher penalty for dealing with
money or property reasonably suspected of being the proceeds of crime worth
$100,000 or more.
The offences and penalties are as follows:
. Dealing with money or property reasonably suspected of being
proceeds of crime worth under $100,000 continues to attract the
existing penalty of 2 years imprisonment, or 120 penalty units, or
both.
. Dealing with money or property reasonably suspected of being
proceeds of crime worth $100,000 or more will attract a higher
penalty of 3 years imprisonment, or 180 penalty units, or both.
A penalty of 3 years for the possession of money or property reasonably
suspected of being the proceeds of crime worth more than $100,000 reflects
the serious nature of possessing the proceeds of crime worth more that
$100,000 and the significant criminal activity that has generated $100,000
or more.
Items 17 and 20 - Section 400.9 of the Criminal Code
These items are consequential on the amendment in item 16 which creates a
graduated offence for dealing with money or property reasonably suspected
of being the proceeds of crime.
Item 20 amends subsection 400.9(4) to provide that that absolute liability
applies to paragraphs 400.9(1)(b) and 400.9(1A)(b) (which contain the
element of the offence that it is reasonable to suspect that the money or
property is proceeds of crime) and paragraphs 400.9(1)(c) and 400.9(1A)(c)
(which set out the value of the money or other property that is the subject
of the offence). This is consistent with the application of absolute
liability to these elements in the current money-laundering offences.
As paragraph (b) establishes an objective standard of fault, being
'reasonable to suspect', it is appropriate to apply absolute liability to
ensure that subjective fault elements, such as knowledge or recklessness,
do not apply.
It is also appropriate to apply absolute liability to paragraph (c), as
this element does not relate to the substance of the offence but merely
specifies the monetary threshold for the application of the offence. Item
22 ensures that a person is not criminally responsible for the higher
penalty offence in subsection 400.9(1), which applies where the value of
the money or other property is $100,000 or more, if the person held a
mistaken but reasonable belief that value of the money or property was less
than $100,000.
Item 18 - Paragraph 400.9(2)(c) of the Criminal Code
Item 18 amends paragraph 400.9(2)(c) to attach a timeframe to the
consideration of the conduct at paragraph 400.9(2)(c) of whether the value
of money or property is grossly out of proportion to a defendant's income
and expenditure. This amendment will ensure that consideration is given to
the defendant's income and expenditure over a reasonable period within
which the conduct occurs.
Item 19 - Subsection 400.9(3) of the Criminal Code
Item 19 repeals subsection 400.9(3) because it is not necessary to include
an application provision for the offence in 400.9. The offence is
supported in its entirety under section 51(xxix) of the Constitution by
reference to the Council of Europe Convention on Laundering, Search,
Seizure and Confiscation of the Proceeds of Crime, to which Australia is a
party.
Item 21 - Subsection 400.9(6) of the Criminal Code
Item 21 repeals subsection 400.9(6) and is consequential on the amendment
to the application provisions in item 4.
Item 22 - Subsection 400.10(1) of the Criminal Code
Item 22 is consequential on the amendment in item 16 which creates a
graduated offence for dealing with money or property reasonably suspected
of being the proceeds of crime.
This amendment will ensure that a person is not criminally responsible for
the offence in subsection 400.9(1), which has a greater maximum penalty, if
the person held a mistaken but reasonable belief that value of the money or
property was less than $100,000, which is an offence with a lower maximum
penalty in subsection 400.9(1A).
Item 23 - Section 400.15 of the Criminal Code
Item 23 amends section 400.15 to extend the geographical jurisdiction for
the money-laundering offences in Division 400. The new provision will
provide that a person is guilty of the money laundering offences in
situations where that person:
. engages in money laundering in circumstances covered by extended
geographical jurisdiction - category B as set out in section 15.2 of
the Criminal Code, or
. engages in money laundering outside Australia, and the money or other
property is the proceeds of crime, or could become an instrument of
crime, in relation to an Australian offence (that is a Commonwealth
indictable offence, a State indictable offence, an Australian Capital
Territory indictable offence, or a Northern Territory indictable
offence).
The existing provision applied extended geographical jurisdiction -
category B to the money-laundering offences. The effect of the new
provision will be to extend the geographical jurisdiction of the offences
to enable the prosecution of persons who launder money or property related
to Australian offences overseas.
Item 24 - Application
Item 24 sets out the application of the proposed amendments. The
amendments in Part 1 apply in relation to conduct engaged on or after the
commencement of Part 1.
Part 2 - Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Item 25 - Section 5 (definition of non-financier)
Item 25 inserts a definition of non-financier to mean a person who is not
an authorised deposit-taking institution (ADI), a bank, a building society,
a credit union or a person specified in the Anti-Money Laundering and
Counter-Terrorism Financing Rules (AML/CTF Rules).
Item 26 - Section 5 (definition of stored value card)
Item 26 amends the definition of stored value card to exclude debit cards
and credit cards from the definition. Item 26 also amends the definition
of stored value card to include a portable device that is capable of being
used to gain access to money value.
This item will clarify the distinction between a stored value card, a debit
or a credit card, and will provide greater certainty when considering the
type of portable device that is capable of accessing monetary value. It
will ensure that a portable device capable of accessing value cannot be
both a stored value card, and a debit or credit card.
This item will clarify the definition of stored value cards and ensure that
stored value cards that do not store the monetary value on the card itself
are capable of being a stored value card for the purposes of the AML/CTF
Act.
Item 27 - Subsection 6(2) (table items 21, 22, 23 and 24)
Item 27 amends the designated services relating to stored value cards in
subsection 6(2) (Table 1, items 21, 22, 23 and 24) to omit "stored on" and
substitute "stored in connection with".
This item will clarify the operation of the designated services relating to
stored value cards and ensure that stored value cards that do not store the
monetary value on the card itself are capable of being a stored value card
for the purposes of the AML/CTF Act.
Item 28 - Subsection 6(2) (table items 31 and 32)
Table 1 in subsection 6(2) establishes designated services for the purposes
of the AML/CTF Act.
Item 28 amends the designated services relating to designated remittance
arrangements (table items 31 and 32) to limit the provision of such a
service to a person who is a non-financier that is carrying on a business
of giving effect to remittance arrangements.
The use of the term non-financier will ensure that an ADI, a bank, a
building society, a credit union or a person specified in the AML/CTF Rules
will not be able to provide the designated service at items 31 and 32.
This amendment will also ensure that a non-financier can only provide a
designated service at items 31 and 32 when the service is provided in the
course of carrying on a business of giving effect to remittance
arrangements.
Item 28 amends the designated service at item 31 to capture situations
where a non-financier receives an instruction from a transferor entity for
the transfer of money or property under a designated remittance
arrangement.
Item 28 amends the designated service at item 32 to capture situations
where a non-financier arranges for money or property to be made available
to an ultimate transferee entity as a result of a transfer under a
designated remittance arrangement.
Providers of remittance services that use the financial system to 'accept'
or 'make money or property available' for customers appear to have been
inadvertently excluded from both the definition of 'designated remittance
arrangement' and the related designated services at items 31 and 32.
This amendment will address this issue and implement the original policy
intention by ensuring that remittance dealers who accept money from a
customer, and make money available to a customer, through the financial
system are providing designated services at items 31 and 32.
Item 29 - Application
Item 29 sets out the application of the proposed amendments to section 6 of
the AML/CTF Act. The amendments to section 6 apply in relation to the
provision of designated services on or after the commencement of this Part.
Item 30 - Paragraphs 10(1)(a) and (b)
Item 30 amends the definition of designated remittance arrangement in
section 10 to include situations where at least one of the parties to the
transfer of money or property under a designated remittance arrangement is
a non-financier.
AUSTRAC has experienced difficulties relating to the taking of enforcement
action against providers of designated remittance services in response to
non-compliance with obligations under the AML/CTF Act. It is difficult to
prove that the entity located in a foreign country is not an ADI, a bank, a
credit union, a building society or a person specified in the AML/CTF Rules
to satisfy the definition in section 10.
This amendment will remove the requirement to prove that the entity located
in a foreign country is not an ADI, a bank, a building society, a credit
union or a person specified in the AML/CTF Rules, when proving the
existence of a designated remittance arrangement.
Item 30 also amends the definition of designated remittance arrangement to
capture arrangements where a person receives an instruction from a
transferor entity for the transfer of money or property under a designated
remittance arrangement, or arranges for money or property to be made
available to an ultimate transferee entity as a result of a transfer under
a designated remittance arrangement.
Providers of remittance services that use the financial system to 'accept'
or 'make money or property available' for customers appear to have been
inadvertently excluded from both the definition of 'designated remittance
arrangement' and the related designated services at items 31 and 32.
This amendment will address this issue and implement the original policy
intention by ensuring that remittance dealers who accept money from a
customer, and make money available to a customer, through the financial
system are providing a service under a designated remittance arrangement.
Item 31 - Transitional Provisions for AML/CTF Rules
Item 31 introduces transitional provisions to ensure that existing AML/CTF
Rules made under subparagraph 10(1)(a)(v) or (b)(v) apply to the definition
of non-financier.
Item 32 - Paragraph 10(3)(a)
Item 32 is consequential to the amendment in items 28 and 30 and amends
paragraph 10(3)(a) to capture arrangements where a person receives an
instruction from a transferor entity for the transfer of money or property
under a designated remittance arrangement. This amendment will implement
the original policy intention and will address the issue outlined above in
Item 30.
Item 33 - Section 46 (table items 3 and 4)
Item 33 amends section 46 by omitting "person in Australia" and
substituting "non-financier in Australia". This amendment is consequential
to the amendments in items 28 and 30 and will ensure that an ADI, a bank, a
building society, a credit union or a person specified in the AML/CTF Rules
is not required to report an international funds transfer under table items
3 and 4 of section 46.
Item 34 - Subsection 59(1)
Item 34 amends subsection 59(1) to clarify that a person who is required to
provide a report about a movement of a bearer negotiable instrument (BNI)
into or out of Australia, must do so immediately.
This amendment will address problems encountered by AUSTRAC, Customs and
the AFP when issuing an infringement notice for the failure to provide a
report about the movement of a BNI. The requirement to report a BNI 'as
soon as possible' has created uncertainty over when a report must be
provided.
This amendment will provide greater certainty over when a report must be
provided and ensure consistency with the timing of the requirement to
report the movement of physical currency.
Item 35 - Subsection 123(3)
Item 35 amends subsection 123(3) to prohibit a reporting entity from
disclosing to a person information relating to a request for further
information under subsection 49(1).
Specified persons or officials are permitted under subsection 49(1) to
obtain further information about threshold transaction reports,
international funds transfer instruction reports, and suspicious matter
reports from a reporting entity.
Section 123 establishes an offence of 'tipping off'. In particular,
subsection 123(3) prohibits a reporting entity that has given information
or produced a document to a person under subsection 49(1) from disclosing
to anyone else that the information or document was provided.
However, this prohibition only operates if the reporting entity gives
information or produces a document. The prohibition does not exist prior
to the giving of information or production of a document and section 123
does not prohibit a reporting entity from disclosing to another person that
it has received a request for information.
This amendment will protect the integrity of the collection of AUSTRAC
information by strengthening the tipping off offence in the AML/CTF Act and
ensuring that there are no gaps in the offence. This reflects the original
policy intention of the tipping off offence.
Item 36 - Application
Item 36 sets out the application of the proposed amendment to subsection
123(3). Item 36 will apply in relation to requirements made under
subsection 49(1) before, on or after the commencement of this item.
However, the penalties are not retrospective and will only apply after
commencement.
Schedule 6 - Unfitness to plead
GENERAL OUTLINE
The purpose of this Schedule is to preserve the right of a person accused
of a federal offence in Victoria to appeal a finding that he or she is
unfit to plead. This right of appeal is currently given to criminal
defendants in Victoria by section 570C of the Crimes Act 1958 (Vic). This
section applies to federal defendants due to the operation of section 68 of
the Judiciary Act 1903 (Cth), which applies State and Territory laws
relating to the arrest and custody of offenders, or people charged with an
offence, and procedures for their bail, committal, trial, conviction and
appeal, to people who have committed, or are accused of, a Commonwealth
offence.
However, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
(Vic) (CMIA) changed the Victorian law in this area by introducing a new
scheme for dealing with defendants who have been found unfit to plead.
Prior to the CMIA, a jury's finding that a person was unfit to plead
operated, in effect, as a finalisation of criminal proceedings. The CMIA
provides that criminal proceedings continue even if a person is not fit to
stand trial, and that appeal powers exist in relation to the outcomes of
those proceedings.
As section 570C of the Victorian Crimes Act no longer serves any purpose in
relation to offences against Victorian law, the section was repealed, with
effect from October 2009, by section 369 of the Criminal Procedure Act
2009 (Vic).
The Commonwealth provisions relating to the fitness of a federal defendant
to be tried are set out at Division 6 of Part 1B of the Commonwealth Crimes
Act. In accordance with sections 68 and 79 of the Judiciary Act, these
provisions apply in concert with the relevant State and Territory
provisions, unless the State or Territory provisions are incompatible with
the Crimes Act provisions.
The scheme provided in the CMIA does not apply to people accused of a
federal offence in Victoria as it is incompatible with Division 6 of Part
1B of the Commonwealth Crimes Act.
The Commonwealth Crimes Act does not provide federal defendants with a
right of appeal equivalent to that in current section 570C of the Victorian
Crimes Act. As a result, although that section is no longer required for
people accused of offences against Victorian law, it retains relevance for
federal offenders. If the appeal mechanism provided by section 570C of the
Victorian Crimes Act is not maintained in some form, a federal defendant in
Victoria would not be able to appeal a finding that he or she is unfit to
plead. Such a finding may, under subsection 20(2) of the Commonwealth
Crimes Act, result in the detention of the defendant in a hospital or
prison for a period not exceeding the maximum term of imprisonment for the
offence. Due to the potential serious consequences of a finding that a
person is unfit to plead to a Commonwealth offence, it is critical that
federal defendants are able to challenge such decisions.
Accordingly, this Schedule amends Division 6 of Part 1B of the Commonwealth
Crimes Act to provide federal defendants with the ability to appeal a
finding that they are unfit to plead, in a manner that reflects current
section 570C of the Victorian Crimes Act.
Commencement
Current sections 570A and 570C of the Victorian Crimes Act were repealed by
section 369 of the Victorian Criminal Procedure Act. However, the
provisions of the Victorian Criminal Procedure Act that repeal sections
570A and 570C of the Victorian Crimes Act have not yet commenced and, at
the time of preparing this Explanatory Memorandum, a firm date for their
commencement had not been advised. The Commonwealth has been advised that
the repeal will take effect in October 2009.
Given that federal defendants in Victoria will lose their ability to appeal
a decision that they are unfit to plead when the relevant provisions of the
Victorian Criminal Procedure Act come into effect, the commencement of this
Schedule is linked to the commencement of subsection 369(4) of that Act.
Accordingly, item 2 of this Bill provides that items 1 and 2 of this
Schedule commence at the later of:
. the day after this enacted Bill receives Royal Assent, or
. immediately after the commencement of subsection 369(4) of the Victorian
Criminal Procedure Act.
This will ensure that there is no overlap between the operation of new
section 20BI of the Commonwealth Crimes Act and sections 570A and 570C of
the Victorian Crimes Act.
Item 2 of this Bill further provides that item 3 of this Schedule, which
sets out transitional arrangements, commences immediately after the
commencement of subsection 369(4) of the Victorian Criminal Procedure Act.
If that provision commences before this Schedule, item 3 of this Schedule
will commence retrospectively. This is necessary to preserve the rights of
federal defendants in Victoria to appeal findings of unfitness to plead, to
ensure the ability to conduct such appeals is maintained without
interruption.
Crimes Act 1914
Item 1 - At the end of Division 6 of Part 1B
This item inserts new section 20BI into Division 6 of Part 1B of the
Commonwealth Crimes Act. Division 6 sets out the Commonwealth provisions
relating to the fitness of a federal defendant to be tried. In accordance
with sections 68 and 79 of the Judiciary Act, Division 6 applies in concert
with the relevant State and Territory provisions, unless the State or
Territory provisions are incompatible with the Crimes Act provisions.
New section 20BI will reflect current section 570C of the Victorian Crimes
Act to preserve the right of a person accused of a federal offence in
Victoria to appeal a jury's finding that he or she is unfit to plead.
Current section 570C of the Victoria Crimes Act applies to federal
defendants due to the operation of section 68 of the Judiciary Act.
As set out in the General Outline of this Schedule, above, Victoria has
introduced a new scheme for dealing with defendants who have been found
unfit to plead. This scheme is set out in the CMIA. As a result of the
existence of the new scheme, section 570C of the Victorian Crimes Act no
longer serves any purpose in relation to offences against Victorian law.
Accordingly, the section was repealed, with effect from October 2009, by
section 369 of the Victorian Criminal Procedure Act.
However, the new scheme set out in the CMIA does not apply to federal
defendants as it is not compatible with the Commonwealth provisions set out
at Division 6 of Part 1B of the Commonwealth Crimes Act. As a result,
although section 570C of the Victorian Crimes Act is no longer required for
people accused of offences against Victorian law, it retains relevance for
federal offenders. As the Commonwealth Crimes Act does not provide a
federal defendant with a right to appeal a decision that they are unfit to
plead, if the appeal mechanism provided by section 570C of the Victorian
Crimes Act is not maintained in some form, a federal defendant in Victoria
would not be able to appeal a finding that he or she is unfit to plead.
Subsection 20BI(1) will explain that section 20BI will apply if, in the
prosecution of a federal offence in the Trial Division of the Supreme Court
of Victoria or in the County Court of Victoria, a jury has found that the
person accused of the federal offence is unfit to be tried. This reflects
the position in current subsection 570C of the Victorian Crimes Act.
Subsection 20BI(2) will provide that a federal defendant who comes within
the parameters of subsection 20BI(1) (that is, that, in proceedings for a
federal offence in the Trial Division of the Supreme Court of Victoria or
in the County Court of Victoria for a federal offence, a jury has found
that he or she is unfit to be tried) may appeal the jury's finding to the
Court of Appeal of Victoria. Paragraphs 20BI(2)(a) to (c) set out the
grounds on which such an appeal may be based. The ability to appeal to the
Court of Appeal of Victoria reflects the position in current section 570C
of the Victorian Crimes Act. The grounds of appeal reflect the grounds on
which appeals under current section 570C may be based. These grounds are
set out in current subsection 570A(1) of the Victorian Crimes Act.
Subsection 20BI(3) will set out the circumstances where the Court of Appeal
must allow an appeal under subsection 20BI(2). The circumstances where an
appeal must be allowed are the same as those set out in current subsection
507A(2) of the Victorian Crimes Act.
Under subsection 20BI(5), the Court of Appeal may dismiss an appeal under
subsection 20BI(2) if it considers that no substantial miscarriage of
justice has occurred. This provision applies even in circumstances where
the Court would otherwise be required, by subsection 20BI(3) to allow the
appeal. Subsection 20BI(5) reflects current subsection 507A(3) of the
Victorian Crimes Act.
Subsection 20BI(6) will set out the action that may be taken if the Court
of Appeal allows an appeal under subsection 20BI(2). It reflects current
subsection 507C(2) of the Victorian Crimes Act.
Subsection 20BI(7) provides that the rules of court for the Court of Appeal
of Victoria, which are made under the Supreme Court Act 1986 (Vic), may
make provision for appeals under subsection 20BI(2) and proceedings
relating to orders for the custody or bail of the accused applicant, under
paragraph 20BI(6)(b). Sections 570A and 570C of the Victorian Crimes Act
do not specifically refer to the ability of the Court of Appeal of Victoria
to make rules about the conduct of appeals under those sections, as the
authority for the Court of Appeal to make such rules is given by section 25
of the Supreme Court Act. Accordingly, subsection 20BI(7) continues the
arrangements in relation to rules of court that apply under current
sections 570A and 570C of the Victorian Crimes Act. It is intended to
clarify that the Supreme Court has the ability to make such rules, even
though the proceedings will arise from federal, rather than Victorian
legislation.
Item 2 - Application of section 20BI of the Crimes Act 1914
This item clarifies that new section 20BI of the Commonwealth Crimes Act,
as inserted by item 1 of this Schedule, applies to findings made before, on
or after the commencement of that section. This will ensure that all
federal defendants will retain the ability to appeal a finding that they
are unfit to plead, regardless of whether that finding was made before or
after the commencement of these amendments. Item 3 of this Schedule
further clarifies the arrangements that apply to appeals against findings
of unfitness to plead that are commenced, but not concluded, before the
commencement of new section 20BI.
Item 3 - Transitional provision
Item 3 applies if a federal defendant had commenced an appeal, under
section 570C of the Victorian Crimes Act, against a jury's finding that he
or she was unfit to plead to a Commonwealth offence, but that appeal had
not been finalised (including, if the appeal was allowed, by the court
making orders for the defendant's safe custody or bail under subsection
570C(2) of the Act) before section 570C was repealed.
Subitem 3(1) provides that, in such a case, new section 20BI of the
Commonwealth Crimes Act does not apply to the defendant (despite item 2 of
this Schedule). Instead, sections 570A and 570C of the Victorian Crimes
Act (and any other provisions of that Act in so far as they relate to
sections 570C or 570A as applied by section 570C) as in force immediately
before their repeal, continue to apply to the appeal proceedings of the
federal defendant. This ensures that a federal defendant is able to
continue and complete the process of appealing a decision that they are
unfit to plead under the legislation under which those proceedings were
instigated. This should be simpler and less confusing for defendants and
their legal representatives.
Schedule 7 - Amendments relating to the Australian Crime Commission
GENERAL OUTLINE
The ACC, established under the ACC Act, is a statutory body that works
collaboratively with Commonwealth, State and Territory agencies, to counter
serious and organised crime in Australia. Using intelligence and
investigative strategies, the ACC endeavours to better position Australia
to meet and respond to the threats posed by serious and organised crime
groups.
This Schedule will amend to the ACC Act to improve the operation and
accountability of the ACC, including enhancing the ACC's powers to deal
with uncooperative witnesses, clarifying procedural powers for issuing
summons and notices to produce, and requiring regular independent review of
the ACC.
Items 1 - 5
Section 4(1) sets out definitions that are relevant to the operation of the
Act. Items 1 to 5 will amend existing, or insert new, definitions relevant
to the changes that will be made by this Schedule.
Item 1
Item 18 will provide the ACC with the power to refer an uncooperative
witness in an examination to a superior court to be dealt with as if
the witness was in contempt of that court.
Under the new contempt provisions inserted by Item 18 (in particular
under new section 34D), an examiner will be able to direct a constable
to detain an uncooperative witness for the purpose of bringing that
witness before the court to be dealt with for contempt.
This Item will insert a definition of constable into subsection 4(1) to
mean a member or special member of the AFP or a member of the police
force or police services of a State. Under subsection 4(1) State
includes a Territory. This definition is the same as the definition of
constable in subsection 3(1) of the Crimes Act.
Item 2
Division 1 of Part II establishes the governance arrangements for the ACC,
and in particular sets out matters relevant to the conduct of ACC Board
meetings. Sections 7E, 7G and 7J - which deal with who may preside over
Board meetings, voting and resolutions of Board meetings - refer to
eligible Commonwealth Board member, which in turn is defined in subsection
4(1). This item will amend the definition of eligible Commonwealth Board
member in subsection 4(1) to include the Commissioner of Taxation. This
amendment is necessary as a result of Item 7, which will amend subsection
7B(2), to include the Commissioner of Taxation as a member of the ACC
Board.
Item 3
Item 18 will provide the ACC with the power to refer an uncooperative
witness in an examination to a superior court to be dealt with as if the
witness were in contempt of that court. The phrase 'in contempt of the
ACC' will be relevant to the new provisions inserted by Item 18. This item
will insert a definition of in contempt of the ACC in subsection 4(1) to
have the meaning given by section 34A (inserted by Item 18). New section
34A will list the actions that will constitute contempt. These actions are
based on offences in the ACC Act (including as amended by this Schedule)
for conduct that occurs during an examination.
Item 4
Under section 7C, the ACC Board can authorise the ACC to undertake
intelligence operations or to investigate federally relevant criminal
activity, and can determine that an intelligence operation or investigation
is a special operation or special investigation. A determination that an
operation/investigation is a special operation/investigation allows the ACC
to use its coercive information gathering powers.
Intelligence operation is defined in subsection 4(1) as the collection,
correlation, analysis or dissemination of criminal information and
intelligence relating to federally relevant criminal activity. Although
investigation is not defined in the ACC Act, an investigation is generally
directed towards obtaining evidence that can be used to disrupt the
activities of particular criminal groups (eg through criminal prosecution
or confiscation proceedings). In practice, however, gathering intelligence
and conducting investigations are not always distinct activities. For
example, if the ACC were to conduct an intelligence operation into the
production of amphetamines they may, in the course of that operation
undercover particular instances where drug offences have been committed and
in doing so may be conducting what constitutes an investigation.
This item will amend the definition of intelligence operation in subsection
4(1) so that it will also include the investigation of federally relevant
criminal activity. This amendment will recognise that a specific
investigation can be a part of an intelligence operation, and will allow
the ACC to undertake actions which may otherwise be reserved for an
'investigation'. For example, a search warrant under section 3E of the
Crimes Act can only be obtained for the investigation of an offence. A
search warrant cannot be obtained under the Crimes Act for an intelligence
operation or intelligence gathering in general. This amendment will mean
that while conducting an intelligence operation, the ACC will be able to
obtain a search warrant under the Crimes Act if it is conducting an
investigation into an offence which is a necessary part of the operation.
A determination by the ACC Board that an intelligence operation is a
special operation, and that an investigation is a special investigation,
are separate processes. The changes to the definition of intelligence
operation made by this item will not result in an 'investigation' that
forms part of a 'special operation' acquiring 'special investigation'
status. For that particular investigation to be a 'special investigation',
the Board will still be required to make a specific determination under
subsection 7C(3). There will be no scope, following the amendment, for an
investigation to be deemed to be a 'special investigation' simply because
the investigation forms part of a 'special operation'. This is appropriate
as the special powers under the ACC Act are only available if something has
been authorised to be a special investigation or special operation.
Item 5
Section 28 provides examiners with the power to summons witnesses to appear
before an examiner at an examination to give evidence, and to produce such
documents or other things, as outlined in the summons. Section 29 provides
examiners with the power to require persons to produce a document or thing
to a specified person.
Section 29A allows an examiner to include a non-disclosure notation in a
summons or notice issued under sections 28 or 29 to prohibit the disclosure
of information about the summons or notice or any official matter connected
with it.
Section 29B makes it an offence to disclose the existence of, or any
information relating to any official matter connected with, the summons or
notice where a non-disclosure notation has been included. Section 29B also
sets out the circumstances in which a disclosure may be made despite the
inclusion of a non-disclosure notation.
Items 15 and 17 will expand the exceptions to the non-disclosure offences
to allow disclosure to the Ombudsman for the purpose of making a complaint
under the Ombudsman Act 1976. This item will define Ombudsman as the
Commonwealth Ombudsman.
This item will also clarify that all references in the ACC Act to the
Ombudsman are references to the Commonwealth Ombudsman.
Item 6
Item 6 makes changes to the definition of intelligence operation in
subsection 4A(6) in the same way, and for the same reasons, as the changes
to the definition of intelligence operation in subsection 4(1) as amended
by Item 4. The definition of intelligence operation in subsection 4A(6) is
necessary as it relates to when an offence has a federal aspect, which in
turn is relevant to the definition of federally relevant activity in
section 4(1).
Item 7
Division 1 of Part II establishes the governance arrangements for the ACC.
In particular, Section 7B establishes the ACC Board, and sets out who is a
member of the ACC Board. This item will amend subsection 7B(2) to include
the Commissioner of Taxation as a member of the ACC Board. This amendment
is in accordance with recommendations from four separate PJC-ACC reports:
Report of the Review of the Australian Crime Commission Act 2002;
Examination of the Annual Report for 2004-2005 of the Australian Crime
Commission; Examination of the Australian Crime Commission Annual Report
2006-2007; and, Examination of the Australian Crime Commission Annual
Report 2007-08. These reports indicated that there would be considerable
merit in the Commissioner of Taxation being added to the ACC Board.
The current membership of the Board provides for a diverse range of issues
and views to be considered in setting the ACC's priorities. The benefits
of adding the Commissioner of Taxation as a Board member is that it will
further enhance the ACC Board's expertise and, in light of significant
taxation related activity identified in ACC investigations and intelligence
operations, increase the ACC's capability to counter the impact of serious
and organised crime.
Item 8
Division 1 of Part II establishes the governance arrangements for the ACC,
and in particular establishes and sets out the functions of the ACC Board
and the IGC-ACC.
Section 7C outlines the functions of the ACC Board, which include
authorising the ACC to undertake intelligence operations or to investigate
matters relating to federally relevant criminal activity. Under
subsections 7C(2) and 7C(3) of the ACC Act, the Board may determine, in
writing, that an operation is a special operation and that an investigation
is a special investigation. These determinations allow the ACC to access
its coercive information gathering powers.
Subsection 7C(5) currently requires that a Board determination made under
subsection 7(C)(2) or subsection 7C(3) be provided to the IGC-ACC within
three days. This requirement ensures that the IGC-ACC is made aware when
the Board determines an operation or investigation is a special operation
or special investigation. It also ensures that the IGC-ACC is provided
with information relating to the general nature of the circumstances or
allegations constituting the federally relevant criminal activity that is
to be the subject of the operation or investigation.
This item will amend subsection 7C(5) so that copies of Board
determinations relating to special operations and special investigations
will be required to be provided to the IGC-ACC within a period of seven
days beginning on the day a determination is made. A timeframe of seven
days is more administratively practicable than three days, and balances
operational and administrative restraints without compromising the need to
keep the IGC-ACC informed. For example, if a Board determination is made
on Friday, currently the ACC would effectively have only one working day to
prepare copies of a determination and provide them to the IGC-ACC.
Items 9 - 14
The ACC has access to coercive information gathering powers where the ACC
Board has authorised an intelligence operation or investigation, and has
determined that the operation/investigation is a special
operation/investigation. In particular, section 28 provides examiners with
the power to summons witnesses to appear before an examiner at an
examination to give evidence and to produce such documents or other things,
as outlined in the summons. Section 29 provides examiners with the power
to require persons to produce a document or thing to a specified person.
Subsections 28(1A) and 29(1A) require an examiner, when issuing a summons
or notice, to be satisfied that it is reasonable in all the circumstances
to do so. The examiner is also required to record in writing the reasons
for the issue of the summons or notice.
In August 2007, Justice Smith of the Victorian Supreme Court in ACC v
Brereton [2007] VSC 297, held that for a summons issued under section 28 to
be valid, reasons for issuing the summons must have been recorded prior to
the time the summons was actually issued. While Justice Smith's findings
in Brereton were confined to the issuing of summons, his reasoning also had
implications for notices to produce issued under section 29.
Justice Smith's findings in Brereton were the basis for the Australian
Crime Commission Amendment Act 2007 (ACC Amendment Act), which amended the
ACC Act to:
. clarify that an examiner could record reasons for issuing a summons
or notice, before, at the same time, or as soon as practicable after
issuing a summons or notice (subsections 28(1A) and 29(1A))
. validate summonses and notices issued prior to the commencement of
the ACC Amendment Act which would otherwise be invalid because an
examiner did not records their reasons for issuing the summons or
notice prior to the summons or notice being issued, and
. provide that summonses or notices were not invalid merely because it
fails to comply with the technical requirements of the Act
(subsection 28(8) and 29(5)).
As a result of the findings of Justice Smith in Brereton, there was at the
time a pressing risk of collateral challenge to the validity of summons and
notices issued by examiners. Had the amendments not been made urgently,
significant prosecutions would have continued to be at risk of being
derailed or delayed, based on challenges to the validity of summons and
notices.
Notwithstanding its passage, the ACC Amendment Act was examined by the PJC-
ACC in 2008. The report of the PJC-ACC, Inquiry into the Australian Crime
Commission Act Amendment Act 2007, was published on 4 September 2008
(2008 Report)
In its 2008 Report, the PJC-ACC noted at pages 16-17 and 20 that:
[A] body invested with intrusive coercive powers should not be
permitted to exercise those powers without appropriate audit and record
mechanisms. Some form of checks and balances is required, and this is
what is envisaged and supplied in subsections 28(1A) and 29(1A) of the
Act. [T]he PJC believes that the making of a written record is crucial
in the process of issuing either a summons or a notice: the requirement
to record reasons in writing evidences the examiners' compliance with
subsections 28(1A) and 29(1A) of the Act.
The requirement to record reasons in writing provides a means for
testing whether the examiners have properly exercised the ACC's
coercive powers, including having had due regard to statutory
safeguards...And the committee's recommendations will clarify and
strengthen the intention and expectations of the Parliament.
On that basis, the PJC-ACC recommended that subsections 28(1A) and 29(1A)
should be amended to ensure that the reasons for the decision to issue a
summons or notice be recorded in writing before the issuing of a summons or
notice (Recommendation 2).
The PJC-ACC report also noted (at page 22) that the operation of
subsections 28(8) and 29(5) 'could negate the safeguards contained in
subsections 28(1A) and 29(1A), as well as eliminate a means of
accountability.' That is, subsections 28(8) and 29(5) preserved the
validity of summonses and notices despite a failure to ever record reasons
(and not just a failure to comply with the requirements of when those
reasons could be recorded). Accordingly, the PJC-ACC also recommended that
subsections 28(8) and 29(5) be repealed (Recommendation 3).
Items 9-14 will respond to the PJC-ACC report to require an examiner to
record reasons in writing at or before the time a summons or notice is
issued. A failure to do this will invalidate the summons or notice. These
amendments will only operate prospectively, that is, the requirements to
records reasons before or at the time a summons or notice is issued will
only apply to summons or notices issued after the commencement of this
Schedule. Accordingly, a failure to comply with such requirements will
only invalidate summons or notices issued after the commencement of this
Schedule.
Items 9 and 10
These items will narrow the operation of subsection 28(1A) so that the
reasons for issuing a summons must be recorded by the examiner at or before
the time the summons was issued. An examiner will no longer be able to
record the reasons why a summons was issued after the summons has been
issued. This will implement Recommendation 2 of the PJC-ACC in
its 2008 Report.
Item 11
Subsection 28(8) states that an examiner's failure to:
. comply with the requirement to record reasons for issuing the summons
(subsection 28(1A))
. attach the relevant Board determination establishing the special
operation/investigation to which the summons relates (subsection
28(2)), and
. issue a non-disclosure notation when required (under section 29A)
do not invalidate the summons.
This item will repeal subsection 28(8) and replace it with a new subsection
stating that a failure to comply with requirements set out in section 29A
will not invalidate the summons. As such, a failure to comply with the
requirement to record reasons and attach the relevant Board determination
(subsections 28(1A) and 28(2)) will invalidate the summons.
Recommendation 3 of the PJC-ACC in its 2008 Report was that all of
subsection 28(8) be repealed. However, the new subsection 28(8) will state
that a failure to issue a non-disclosure notation under section 29A will
not invalidate the summons. The 2008 Report focused on ensuring that an
examiner be properly satisfied prior to issuing a summons or notice, and
that the reasons for issuing the summons or notice be recorded. The
requirement to include a non-disclosure notation under section 29A is not
related to the decision of whether or not to issue a summons or notice.
Items 12 and 13
These items will narrow the operation of subsection 29(1A) so that the
reasons for issuing a notice must be recorded by the examiner at or before
the time the notice was issued. An examiner will no longer be able to
record the reasons why a notice was issued after the notice has been
issued. This will implement Recommendation 2 of the PJC-ACC in its
2008 Report.
Item 14
Subsection 29(5) states that an examiner's failure to:
. comply with the requirement to record reasons for issuing the notice
(subsection 29(1A)); and
. issue a non-disclosure notation when required (under section 29A)
do not invalidate the notice.
This item will repeal subsection 29(5) and replace it with a new subsection
stating that a failure to comply with requirements set out in section 29A
will not invalidate the notice. The effect of this amendment will be that
a failure to comply with the requirement to record reasons in
subsection 29(1A) will invalidate the summons.
Recommendation 3 of the PJC-ACC in its 2008 Report was that all of
subsection 29(5) be repealed. However, the new subsection 29(5) will state
that a failure to issue a non-disclosure notation under section 29A will
not invalidate the summons. The 2008 Report focused on ensuring that an
examiner be properly satisfied prior to issuing a summons or notice, and
that the reasons for issuing the summons or notice be recorded. The
requirement to include a non-disclosure notation under section 29A is not
related to the decision of whether or not to issue a summons or notice.
Items 15 - 17
The ACC has access to coercive information gathering powers where the ACC
Board has authorised an intelligence operation or investigation, and has
determined that the operation/investigation is a special
operation/investigation. In particular, section 28 provides examiners with
the power to summons witnesses to appear before an examiner at an
examination to give evidence and to produce such documents or other things,
as outlined in the summons. Section 29 provides examiners with the power
to require persons to produce a document or thing to a specified person.
Section 29A requires or allows (depending upon the circumstances) an
examiner to include a non-disclosure notation in a summons or notice issued
under sections 28 or 29 to prohibit the disclosure of information about the
summons or notice or any official matter connected with it. The purpose of
a non-disclosure notation is to protect the safety or reputation of a
person, the fair trial of a person who has been or may be charged with an
offence, and the effectiveness of an operation or investigation.
Subsection 29B(1) makes it an offence to disclose the existence of, or any
information relating to any official matter connected with, the summons or
notice where a non-disclosure notation has been issued.
Subsection 29B(2) sets out the circumstances in which the person issued
with the summons or notice may make a disclosure despite the existence of a
non-disclosure notation. These circumstances are:
. in accordance with the circumstances, if any, specified in the notation
. to a legal practitioner for the purpose of obtaining legal advice or
representation relating to the summons or notice
. to a legal aid officer for the purpose of obtaining assistance relating
to the summons or notice
. if the person is a body corporate - to an officer or agent of the body
corporate for the purpose of ensuring compliance with the summons or
notice, or
. if the person is a legal practitioner - to another person for the
purpose of obtaining their agreement to disclose something covered by
legal professional privilege.
Subsection 29B(4) outlines the only circumstances in which a person
notified of the summons or notice (whether under subsection 29B(2) or
29B(4)) can further disclose the existence of the summons or notice. A
person who is notified of the summons or notice must not disclose the
summons or notice except for the following reasons:
. if the person is an officer or agent of a body corporate, to:
o another officer or agent of the body corporate for the
purpose of ensuring compliance with the summons or notice
o a legal practitioner for the purpose of obtaining legal
advice or representation relating to the summons, notice or
matter, or
o a legal aid officer for the purpose of obtaining assistance
under section 27 relating to the summons, notice or matter
. if the person is a legal practitioner - for the purpose of giving legal
advice, making representations, or obtaining assistance relating to the
summons, notice or matter, or
. if the person is a legal aid officer - for the purpose of obtaining
legal advice or representation relating to the summons, notice or
matter.
In its 2008 Report, the PJC-ACC, in examining oversight of the ACC, noted
that:
The Commonwealth Ombudsman (Ombudsman) has some oversight of the ACC
and its examiners. But the committee suggests that there is some
confusion regarding whether the Ombudsman can receive a complaint
without the complainant being in breach of a non-disclosure order.
Accordingly, the PJC-ACC recommended that subsection 29B(4) of the ACC Act
be amended to allow disclosure to the Commonwealth Ombudsman
(Recommendation 4). Items 15 and 17 will respond to the PJC-ACC
recommendation to allow disclosure to the Ombudsman.
The non-disclosure provisions in paragraph 29B(2)(b) currently allows the
person who is issued with a summons or notice to disclose the summons or
notice to a legal practitioner for the purpose of obtaining legal advice or
representation in relation to the summons or notice. Paragraph 29B(4)(b)
then allows that legal practitioner to further disclose the notice or
summons for the purpose of giving legal advice, making representations, or
obtaining assistance relating to the summons, notice or matter.
Item 15
This item will expand the circumstances in subsection 29B(2) to include
making disclosures to the Ombudsman for the purpose of making a complaint
under the Ombudsman Act 1976, or to the ACLEI for the purpose of referring
to the Integrity Commissioner an allegation or information that raises a
corruption issue.
Recommendation 3 of the PJC-ACC in its 2008 Report was limited to amending
subsection 29B(4). Item 17 will implement this recommendation. However,
it is appropriate that all people who are aware of the summons or notice
(either under subsection 29B(2) or 29B(4)) will be able to disclose matters
connected to the summons or notice to the Ombudsman where appropriate.
ACLEI is responsible for responsible for preventing, detecting and
investigating serious and systemic corruption issues in the AFP and the
ACC. As such, it is appropriate that a person is able to disclose a
summons or notice to ACLEI for the purpose of referring to the Integrity
Commissioner an allegation, or information that raises a corruption
allegation.
Item 16
This item will amend paragraph 29B(4)(b) so that the legal practitioner
notified of the summons or notice under paragraph 29B(2)(b) will be able to
disclose the summons or notice for the purposes of obtaining legal advice
or representation as well as the current reasons listed in paragraph
29B(4)(b). For example, this amendment will allow a solicitor to refer the
matter to counsel.
Item 17
This item will expand the circumstances in subsection 28B(4) to include
making disclosures to the Ombudsman for the purpose of making a complaint
under the Ombudsman Act 1976 or to the ACLEI for the purpose of referring
to the Integrity Commissioner an allegation or information that raises a
corruption issue. This item implements Recommendation 3 of the PJC-ACC in
its 2008 Report.
ACLEI is responsible for responsible for preventing, detecting and
investigating serious and systemic corruption issues in the AFP and the
ACC. As such, it is appropriate that a person is able to disclose a
summons or notice to ACLEI for the purpose of referring to the Integrity
Commissioner an allegation, or information that raises a corruption
allegation.
Item 18
This item will enable the ACC to refer an witness who is not cooperating
with an ACC examination to a court to be dealt with as if the person was in
contempt of that court. This will respond to recommendations made by the
PJC-ACC and an independent review of the ACC Act by Mr Mark Trowell QC.
The ACC has access to coercive information gathering powers where the ACC
Board has authorised an intelligence operation or investigation, and has
determined that the operation/investigation is a special
operation/investigation. In particular, section 28 provides examiners with
the power to summons witnesses to appear before an examiner at an
examination to give evidence and to produce such documents or other things,
as outlined in the summons. Section 29 provides examiners with the power
to require persons to produce a document or thing to a specified person.
Process for dealing with an uncooperative witness
The Act contains a number of criminal offences aimed at ensuring that a
person issued with a notice or summons complies with that notice or
summons. These offences target:
. failing to attend an examination
. failing to take an oath or affirmation
. failing to produce a document
. failing to answer questions
. giving false or misleading evidence, and
. obstructing or hindering an examiner or the ACC.
These offences are punishable by up to five years imprisonment or a fine
not exceeding 200 penalty units.
An examination will usually occur at an early or critical stage of the
investigation or operation. As such, it is crucial that the ACC is able to
obtain the information it is seeking at that stage.
There are two issues with the offences as they currently operate. Firstly,
there is no immediate threat of detention. At present, if a person is
summonsed to appear as a witness and attends the examination but refuses to
cooperate, the matter is referred to the CDPP and the prosecution proceeds
by way of summons. As a result, there is no immediate detention or threat
of immediate detention to the person. Arresting the person is not
available as it is not necessary to arrest a witness in order to achieve
any of the purposes set out in paragraph 3W(1)(b) of the Crimes Act.
Secondly, the effectiveness of these offences is often compromised by the
delay in the commencement of court proceedings. It can often take a long
time before a matter is brought before a court and even longer before the
court is able to deal with the matter. Witnesses have been prepared to not
cooperate with examiners, knowing that no penalty will be imposed for at
least 12-18 months. Witnesses are aware that they may also be able to
avoid criminal conviction (and therefore any penalty) by eventually
agreeing to give evidence prior to the completion of the criminal process
knowing that the evidence will have lost its value to the investigation by
that stage. By delaying when information is provided, a witness is able to
effectively delay and frustrate the operation of an ACC investigation.
Reviews of ACC powers to deal with uncooperative witnesses
In 2001, the National Crime Authority Legislation Amendment Act 2001 (the
NCA Amendment Act) amended various provisions of the then National Crime
Authority Act 1984 (the NCA Act) to improve the operation of the coercive
powers. Section 4 of the NCA Amendment Act imposed an obligation that the
operation of the NCA Act be reviewed after a period of five years to
monitor the effect of the amendments. The ACC Act replaced the NCA Act,
with the ACC replacing the National Crime Authority. The requirement to
review the operation of the NCA Amendment Act continued under the ACC Act.
In 2006, the then Minister for Justice and Customs commissioned an
independent review and report on the operation of certain provisions in the
NCA Act and the ACC Act. The independent review was conducted by Mr Mark
Trowell QC. Mr Trowell's report (the Trowell Report) was presented in the
House of Representatives on 21 February 2008.
The terms of reference of Mr Trowell's review included analysing, among
other matters, whether the ACC Act should be amended to provide the ACC
with a contempt power to deal with witnesses who did not fulfil their
obligations under the ACC Act.
The Trowell Report found that the lack of a contempt power for dealing with
uncooperative witnesses in examinations is a significant impediment to its
capacity to combat serious and organised crime. The Trowell Report
recommended that the ACC Act be amended to give examiners the capacity to
refer an alleged contempt to a superior court to consider and deal with as
though it were contempt of that court. The Trowell Report went on to
recommend that if, after hearing a contempt application, a court finds the
person to be in contempt, the court would have the power to deal with the
person as if they were in contempt of court (for instance, the court would
have the power to imprison the person).
The issue of including a contempt power for the ACC has since been
considered by the PJC-ACC on four occasions.
In its Inquiry into the future impact of serious and organised crime on
Australian society, completed on 19 September 2007, the PJC-ACC recommended
that the issue of failure to cooperate with the Australian Crime Commission
examination process be resolved immediately and that the Commonwealth
Government release the Trowell Report as a matter of priority
(Recommendation 2). In its Examination of the ACC Annual Report 2006-07,
tabled on 18 June 2008, the PJC-ACC recommended that the Government address
the emerging problem that refusal to cooperate with the examiners and
examination process is being employed as a delaying tactic to thwart or
frustrate ACC operations (Recommendation 2). In its 2008 Report, the PJC-
ACC again recommended that the ACC Act be amended to include a contempt
power (Recommendation 6). In its Examination of the ACC Annual Report 2007-
08, the PJC-ACC further reiterated its recommendation that the ACC be
provided with the power to refer uncooperative witnesses to court to be
dealt with for contempt (Recommendation 1).
Rationale for changes
This item will implement the key recommendation of the Trowell Report,
and respond to the recommendations of the PJC-ACC, by providing an
examiner with the power to refer uncooperative witness to a superior
court to be dealt with as if the witness was in contempt of that court.
Under the new contempt provisions, the ACC, where appropriate, will be able
to deal promptly with an uncooperative witness, while avoiding the delays
which are a part of the prosecution process.
Allowing an examiner to refer a person to a court to be dealt with for
contempt will provide a swift mechanism for dealing with uncooperative
witnesses contempt proceedings bring with them the threat of immediate
detention. It is anticipated that the new contempt provisions will
motivate an uncooperative witness to reconsider his or her position and
comply with the requirements of an examination, and avoid the immediate
threat of detention.
Allowing a person to be dealt with through contempt provisions will
maintain the integrity of the examination process as an important
investigative and intelligence-gathering tool in combating serious and
organised crime. The new contempt procedures will bring the ACC into line
with other State and Territory agencies similar to the ACC who have had
contempt provisions for some time. The experience of those agencies is
that the power to cite an uncooperative witness for contempt is used
sparingly, and that the threat of such action will be often sufficient to
secure compliance.
Section 34A
Section 34A will provide that a person is in contempt of the examiner if he
or she:
. refuses or fails to take an oath/affirmation when required
. refuses or fails to answer a question when required
. refuses or fails to produce a document or thing when required under a
notice to produce, a summons or otherwise as part of an examination
. if a claim of legal professional privilege is made by a legal
practitioner - refuse or fail to reveal the name and the address of the
person to whom the privilege applies
. provides false or misleading information to an examiner
. obstructs or hinders an examiner in the performance of his or her
functions
. disrupts an examination before an examiner, or
. threatens a person present at an examination before an examiner.
These elements of being 'in contempt of the ACC' mirror offences currently
in the Act which relate to not cooperating with an ACC examination.
Section 34B
Section 34B will set out the process for an examiner to refer an
uncooperative witness to the Federal Court or the Supreme Court of a State
or Territory, and for the court to determine whether the person is in
contempt of the ACC, and if so, to deal with that person if he or she was
in contempt of that court.
Subsection 34B(1) will provide that where an examiner is of the opinion
that a person is in contempt of the ACC (within the meaning of
section 34A), the examiner can make an application to either the Federal
Court or the Supreme Court of the State or Territory in which the
examination to is being conducted, to be dealt with for contempt. As an
examiner presides over an examination, it is appropriate that the examiner
form the initial (but not conclusive) opinion that a person is in contempt.
It is the court (under subsection 34B(5)) that determines whether a person
is in contempt, and determines the consequences of being in contempt.
Subsection 34B(2) will require the examiner, before making an application
under subsection 34B(1) to inform the person they intend to refer them to a
court to be dealt with for contempt. This subsection will ensure that a
person is given early notification of the consequences of his of her non-
compliance, giving him or her an opportunity to comply with the
requirements of the examination.
Subsection 34B(3) will provide that the application to the court under
subsection 34B(1) must be accompanied by a certificate that sets out the
grounds for making the application and the evidence in support of the
application. The certificate is necessary to set out the matters relevant
to the court's determination of whether a person was in contempt of the
ACC. Ordinarily, the certificate would contain a summary of the alleged
contempt, and a detailed statement from the examiner outlining why he or
she is of the opinion that the person is in contempt. Any additional
evidence or statements that become necessary will be able to be adduced
under subsection 34B(5).
Subsection 34B(4) will require that a copy of the certificate referred to
in subsection 34B(3) is given to the person who is the subject of the
contempt proceedings before, or at the same time as, the application is
made. This is a necessary and important safeguard to ensure that the
person is made aware of the reasons why the examiner believes them to be in
contempt and is given an opportunity to prepare their own case that he or
she is not in contempt.
Subsection 34B(5) will allow the court to determine that a person was in
contempt of the ACC after considering the certificate, and any evidence or
statements in support of the ACC or the person. If a court does find that
a person was in contempt of the ACC, the Court may deal with the person as
if he or she were in contempt of that court.
Subsection 34B(6) will state that the rules and principles in Chapter 2 of
the Criminal Code Act 1995 apply to proceedings under the contempt
provisions. This section is necessary to ensure that the court can apply
the general principles of criminal responsibility in Chapter 2 of the
Criminal Code to the contempt proceeding as if it was a proceeding for a
criminal offence. For example, this will mean that the circumstances in
which there is no criminal responsibility, set out in Part 2.3 of Chapter 2
of the Criminal Code, will apply to the contempt proceeding. This is
necessary because the contempt provisions are not statutory offences to
which Chapter 2 would ordinarily apply.
Section 34C
Section 34C will provide that contempt proceedings are to be conducted in
accordance with the ordinary rules and procedures of the Court to which the
examiner applies. This will ensure that the court will retain overall
control of the contempt proceedings from the time the person is brought
before that court until the application is disposed of. The examiner will
simply be a party to the proceeding.
Subsection 34C(3) will also provide that the certificate submitted under
subsection 34B(3) by the examiner stating the grounds for making the
application and evidence in support of that application is prima facie
evidence showing contempt of the ACC. This will allow the court to find
the facts of the alleged contempt without necessarily having to rely on any
oral testimony. This does not prevent the defendant from challenging the
evidence. However, if there is no dispute as to the facts, the certificate
will expedite the contempt proceedings.
Section 34D
While it is anticipated that in most instances, uncooperative witnesses
will voluntarily attend court, there may be some instances where the
assistance of law enforcement is necessary to bring the alleged contemnor
to the court. The power to detain a person can also be an effective
mechanism to secure compliance from a non-cooperative witnesses because it
enables the examiner make an instant and enforceable threat to that
witness's liberty. Anecdotal evidence from State coercive bodies, which
have the power to cite witnesses for contempt, indicates that this power is
an invaluable tool held in reserve for conducting coercive inquiries.
Section 34D will provide an examiner, who proposes to make an application
to the court under subsection 34B(1), to direct a constable to detain a
person for the purposes of bringing him or her before a court for contempt
proceedings. The definition of constable will be inserted by Item 1 to
mean a member or special of the AFP or a member of the police of a State.
Under subsection 4(1) State includes a Territory.
If a person is detained, the ACC will be required, under subsection 34D(2),
to apply to the court under subsection 34B(1) as soon as practicable.
Further, there will be a requirement that the person who has been detained
be brought before the court as soon as practicable. The court will then be
able to, under subsection 34D(3):
. direct that the person be released from detention on the condition
that he or she will appear before the court in relation to the
application (paragraph 34D(3)(a)), or
. order that the person continue to be detained until the contempt
proceedings are completed (paragraph 34D(3)(b)).
Subsection34D(4) will allow a court to impose other conditions on a
person's release under paragraph 34D(3)(b), including for example, that
they surrender their passport, give an undertaking as to their living
arrangements, or that they report to a law enforcement agency. Conditions
may be necessary as a person unwilling to cooperate with an ACC examiner
may also be unwilling to cooperate fully with a contempt hearing.
Subsection 34D(5) will allow the court to vary or revoke the conditions
made under subsection 34D(4) at any time.
Section 34E
Subsection 34E(1) will enable an examiner to withdraw a contempt
application made under subsection 34B(1) at any time. If a person is
in detention under section 34D when a contempt application is
withdrawn, subsection 34E(2) will require the person to be released
from detention immediately.
This section will give a person who initially refuses to comply with an
ACC examination a further opportunity to cooperate. It also provides a
safeguard measure, ensuring that a person who is not required to appear
before a court is released immediately.
Section 34F
Subsection 12(1) provides that if the ACC obtains evidence that would
be admissible in a prosecution of an offence, the ACC must give that
evidence to either the relevant Commonwealth or State or Territory
Attorney-General, a relevant law enforcement agency or any other
Commonwealth or State or Territory agency authorised to prosecute the
offence.
If a person is dealt with for contempt, it is not appropriate for them to
be prosecuted for an offence arising out of the same conduct. Section 34F
will provide that the ACC is not required to give evidence relating to the
contempt application to a prosecuting authority under subsection 12(1) if
the examiner makes an contempt application under subsection 34B(1).
This provision will avoid the person being dealt with twice for the same
conduct and respects the principle of double jeopardy. See also Items 21
and 22.
Item 19
The Act contains a number of criminal offences aimed at ensuring that a
person issued with a notice or summons, complies with that notice or
summons. In particular, under section 35 it is an offence to obstruct or
hinder an examiner or the ACC in the performance of their functions or to
disrupt an examination before an examiner.
This item will amend section 35 to make it an offence to threaten any
person present at an examination. This will include threatening behaviour
directed at the examiner. This amendment will ensure that all
uncooperative behaviour directed towards not complying with an examination
is captured under section 35.
There is precedent for extending the offence in section 35 in this way.
For example, subsection 118(d) of the NSW Police Integrity Commission
Act 1996 and subsection 9(c) of the Queensland Commissions of Inquiry Act
1950 make it an offence to wilfully threaten or insult any officer of the
Commission, any witness or person summoned to attend before the Commission,
or any person authorised to appear before, or on behalf of, the Commission.
Section 34C, inserted by Item 60, which will set out when a person is in
contempt of the ACC will reflect the conduct captured by section 35 as
amended by this item.
Items 20 and 21
Section 35A provides that a person can be prosecuted for his or her conduct
constituting an offence either under the Act or under a law of a State or
Territory, but not under both. This amendment will extend the operation of
section 35A to take into account the possibility of having a person dealt
with under the contempt provisions inserted by Item 18.
Items 20 and 21 will add subsections 35A(2) and (3) which will respectively
provide that if:
. a contempt application is made under subsection 34B(1) in respect of
conduct of a person, and the court deals with the person under
section 34B for that conduct, the person is not liable to be
prosecuted for an offence in respect of the same conduct, or
. a person is prosecuted for an offence in relation to conduct referred
to in an application under subsection 34B(1), and application under
section 34B(1) in respect of that same conduct cannot be made.
As the proposed contempt regime will overlap with existing criminal
offences relating to obstruction of the ACC, an examiner will be able to
choose the most appropriate enforcement tool in each circumstance.
However, once a person's conduct has been dealt with by one route,
proceedings under the other will be barred, consistent with the 'double
jeopardy' rule in section 4C of the Crimes Act 1914.
Item 22
Section 61A requires the Minister to cause independent review of the
operation of the Act to be undertaken as soon as practicable after 1
January 2006. Section 61A does not apply if a parliamentary committee has
started a review of the Act before that time. The requirement for a review
under section 61A was met through the PJC-ACC's Review of the Australian
Crime Commission Act 2002, completed on 10 November 2005. As part of its
2008 Report, the PJC-ACC stated at page 58 that 'legislation that governs
an agency such as the ACC, and which grants that agency substantial powers,
including intrusive coercive powers, should be regularly reviewed so as to
ensure its appropriateness and effectiveness.'
This item repeals section 61A, which is no longer necessary as the review
required by that section has been completed. This item then inserts new
section 61A to provide for regular, five-yearly review of the operation of
the Act. The first five year period for review will begin on the
commencement of this Schedule. A review will not have to be conducted in a
particular five year period if a parliamentary committee commences a review
of the ACC Act in that period.
Part 2 - Consequential amendments
Administrative Decisions (Judicial Review) Act 1977
Item 23
The Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) allows
a person to seek review of an administrative decision. Section 5 of AD(JR)
Act provides a list of the grounds on which decisions may be challenged
under the Act. The AD(JR)Act applies to all administrative decisions made
under federal laws except decisions made by the Governor-General or
decisions that are specifically excluded by Schedule 1 to the Act or
regulations made under the Act.
This item will amend Schedule 1 of the AD(JR) Act so that decisions made
under sections 34B and 34D (inserted by Item 18) will be exempt from the
operation of the AD(JR) Act. This will mean that an administrative
decision to apply to a court for a person to be dealt with for contempt, or
to direct a constable to detain a person for the purpose of bringing the
person before the court, cannot be the subject of an application for
judicial review under the AD(JR) Act.
It is appropriate to exempt these decisions from the operation of the
AD(JR) Act as the court will already be supervising the matter in
determining whether the person should continue to be detained and in
hearing the contempt application. Constitutional judicial review, which is
available through s 39B of the Judiciary Act 1903, will not be affected.
Telecommunications (Interception and Access) Act 1979 and Surveillance
Devices Act 2004
Item 24
The Surveillance Devices Act 2004 enables law enforcement officers to
obtain authorisations for the installation and use of surveillance devices
in relation to criminal investigations. The Surveillance Devices Act also
restricts the use, communication and publication of information that is
obtained through the use of surveillance devices. Section 45 of the
Surveillance Devices Act outlines when information obtained under the Act
can be disclosed or used in evidence. This includes disclosure for
'relevant proceedings' as defined in subsection 6(1).
This item will add a proceeding in relation to an application under
subsection 34B(1) (inserted by Item 18) to the definition of 'relevant
proceeding' in subsection 6(1) of the Surveillance Devices Act.
This amendment will allow an agency to provide information obtained under
the Surveillance Devices Act to the ACC for the purposes of having a person
dealt with under the new contempt provisions (inserted by Item 18). Given
that examinations take place in relation to the investigation of defined
offences, it is desirable that information obtained under the Surveillance
Devices Act be admissible in the contempt hearing.
Item 25
The Telecommunications (Interception and Access) Act 1979 (TIA Act)
prohibits the interception of, and other access to, telecommunications
except where authorised under the TIA Act. There are exceptions for
obtaining and using information in the course of investigations into a
defined serious offence and using that information as evidence in defined
court proceedings.
This item will add a proceeding in relation to an application under
subsection 34B(1) (inserted by Item 60) to the definition of 'exempt
proceeding' in section 5B of the TIA Act.
This amendment will allow lawfully intercepted information to be used in
evidence in a contempt proceeding (inserted by Item 60). Given that
examinations take place in relation to investigations, agencies may need
information obtained under the TIA Act to be admissible in the contempt
hearing.
Part 3 - Application provisions
Item 26
Items 3 and 18 will provide the ACC with the power to refer someone to
court to be dealt with for contempt. Item 19 will amend section 35 to make
it an offence to threaten any person present at an examination. Items 20
and 21 will ensure a person can only be dealt with for contempt or for an
offence, but not both.
Item 26 will make the amendments in items 3 and 18 to 21 apply only in
relation to an examination that commenced on or after the commencement of
this item. This ensures a person cannot be referred to a court for
contempt, or punished for threatening an examiner in relation to conduct
that occurred before the commencement of this item.
Item 27
This item noted that the change to the definition of intelligence operation
in Item 4 will apply in relation to operations that began before, on or
after commencement of this item.
Item 28
This Item will clarify that amendments made by items 9 to 14 of this
Schedule apply to a summons or notice issued on or after the commencement
of this item. Therefore any summons or notice that was issued prior to
commencement will not be invalidated if the reasons were recorded after the
time the summons or notice was issued.
Item 29
This item will clarify that the amendments made by items 24 and 25 will
apply to information obtained under the Surveillance Devices Act and the
Telecommunication (Interception and Access) Act before, on, or after
commencement of this item.
Schedule 8 - Penalties for bribery
GENERAL OUTLINE
This Schedule amends the Criminal Code Act 1995 (the Criminal Code). The
amendments increase the penalties for the offences of bribing a foreign
public official (section 70.2 of the Criminal Code) and bribery of a
Commonwealth public official (section 141.1 of the Criminal Code). The
amendments ensure that penalties for these offences are sufficiently high
to deter and punish bribery in the domestic and international spheres.
The existing penalty for both offences is 10 years imprisonment. Section
4B of the Crimes Act 1914 allows the court to impose, instead of, or in
addition to, a penalty of imprisonment, a pecuniary penalty calculated in
accordance with the formula under that section. In the case of both
offences, this equates to a maximum fine of $66,000 for an individual and
$330,000 for a body corporate.
These penalties have been criticised as insufficient. The Organisation for
Economic Cooperation and Development (OECD), in the Phase 2 review of
Australia's implementation of the OECD Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions (the
Convention) in 2006, considered the penalties were not 'effective,
proportionate and dissuasive' as required by the Convention.
Items 1 - 6
Item 1 of Schedule 8 repeals the penalty of 10 years imprisonment for the
offence of bribing a foreign public official at section 70.2 of the
Criminal Code 1995 (the Criminal Code).
Item 2 of Schedule 8 repeals the notes at the end of subsection 70.2(1) of
the Criminal Code. Existing Note 2 is no longer necessary in light of the
changes being made to the penalty. As a result of the removal of existing
Note 2, Note 1 is no longer needed, but the substance of existing Note 1 is
retained under the new Note at the end of subsection 70.2(1) of the
Criminal Code.
Item 3 of Schedule 8 inserts new penalties at the end of section 70.2 for
individuals and bodies corporate found guilty of the offence of bribing a
foreign public official.
The penalty for an individual will be a maximum of 10 years imprisonment, a
fine of 10,000 penalty units ($1,100,000), or both. The inclusion of a
significant monetary penalty for individuals is to deter bribery of foreign
public officials where the existing financial penalty may be perceived as
"a cost of doing business" when international transactions worth millions
of dollars occur.
The ratio between the term of imprisonment and penalty units is
inconsistent with other provisions in the Criminal Code where, generally,
there is a ratio of five penalty units for every month of imprisonment. As
explained above, however, the existing fine of $66,000 for an individual is
not 'effective, proportionate and dissuasive.' The increased pecuniary
penalty will ensure Australia's compliance with OECD recommendations, as
well as promoting good governance, the rule of law and confidence in
government.
The maximum penalty for a body corporate will be the greatest of the
following:
a) 100,000 penalty units ($11,000,000)
b) three times the value of any benefit that was directly or indirectly
obtained and that is reasonably attributable to the conduct
constituting the offence (including any body corporate related to the
body corporate)
c) if the court cannot determine the value of the benefit under paragraph
70.2(5)(b), 10% of the annual turnover of the body corporate during
the 12 months ending at the end of the month in which the conduct
constituting the offence occurred.
This formulation is based on the penalty available under section 76 of
the Trade Practices Act 1974 (the TP Act) in relation to breaches of Part
IV of the TP Act.
The amendments mean that a body corporate found guilty of bribing a
foreign public official will face a maximum penalty of at least a
$11,000,000 fine, an increase of $10,650,000 from the existing fine of
$330,000. This increase will have a significant deterrent effect on
those bodies corporate tempted to bribe a foreign public official.
The temptation to bribe a foreign public official increases with the size
of a potential transaction/benefit. The alternative sanctions available
under subsection 70.2(5) have the effect of penalising a body corporate
proportionately to either the benefit obtained, or 10% of the annual
turnover of the body corporate, so that the risk of being successfully
prosecuted for this offence outweighs the potential benefit from the
transaction/benefit procured through the bribe.
The corporate multiplier outlined in subsection 4B(3) of the Crimes Act
1914, does not apply to this corporate penalty because a contrary
intention is expressed that the penalty for a body corporate is 100,000
penalty units.
Subsection 70.2(6) explains what the annual turnover of a body corporate
is. It is the sum of all the supplies the body corporate and any body
corporate related to the body corporate have made or are likely to make,
with some exceptions. Those exceptions include supplies made between
related bodies corporate, input taxed supplies, supplies that are not for
consideration and supplies that are not made in connection with an
enterprise that the body corporate carries on. Those exceptions are
necessary because otherwise the assessment of a body corporate's annual
turnover would not be accurate.
Subsection 70.2(7) clarifies that expressions used in subsection 70.2(6)
that are also used in the A New Tax System (Goods and Services Tax) Act
1999 (the GST Act) have the same meaning in 70.2(6) as they do in the GST
Act.
Subsection 70.2(8) provides guidance on how to determine whether two
bodies corporate are related to each other. This concept is relevant to
determining a penalty amount under paragraph 70.2(5)(b) and subsection
70.2(6).
Subsection 70.2(8) states that the question of whether two bodies
corporate are related to each other is to be determined in the same way
as for the purposes of the Corporations Act 2001. Section 50 of the
Corporations Act provides that two bodies corporate are related where one
body corporate is a holding company, or a subsidiary or a subsidiary of a
holding company of another body corporate.
Item 4 of Schedule 8 repeals the penalty of 10 years imprisonment for the
offence of giving a bribe to a Commonwealth public official under
subsection 141.1(1) of the Criminal Code.
Item 5 of Schedule 8 repeals the penalty of 10 years imprisonment for the
offence of a Commonwealth public official receiving a bribe under
subsection 141.1(3) of the Criminal Code.
Item 6 of Schedule 8 inserts new penalties at the end of section 141.1
for individuals and bodies corporate found guilty of the offences of
bribing a Commonwealth public official and a Commonwealth public official
receiving a bribe.
The penalty for an individual will be a maximum of 10 years imprisonment,
a fine of 10,000 penalty units ($1,100,000), or both. The inclusion of a
significant monetary penalty for individuals is to deter bribery of
Commonwealth public officials where the existing financial penalty may be
perceived as "a cost of doing business" when transactions worth millions
of dollars occur. Bribery damages good governance and undermines the
rule of law and confidence in the government.
The ratio between the term of imprisonment and penalty units is
inconsistent with other provisions in the Criminal Code where, generally,
there is a ratio of five penalty units for every month of imprisonment.
As explained above, however, the existing maximum fine of $66,000 for an
individual is not 'effective, proportionate and dissuasive.' The
increased pecuniary penalty will ensure Australia's compliance with OECD
recommendations.
The maximum penalty for a body corporate will be the greatest of the
following:
d) 100,000 penalty units ($11,000,000)
e) three times the value of any benefit that was directly or indirectly
obtained and that is reasonably attributable to the conduct
constituting the offence (including any body corporate related to the
body corporate)
f) if the court cannot determine the value of the benefit under paragraph
141.1(6)(b), 10% of the annual turnover of the body corporate during
the 12 months ending at the end of the month in which the conduct
constituting the offence occurred.
This formulation is based on the penalty available under section 76 of
the TP Act in relation to breaches of Part IV of the TP Act.
The amendments mean that a body corporate found guilty of bribing a
Commonwealth public official will face a maximum penalty if at least a
$11,000,000 fine, an increase of $10,650,000 from the existing maximum
fine of $330,000. This increase will have a significant deterrent effect
on those bodies corporate tempted to bribe a foreign public official.
The temptation to bribe a Commonwealth public official increases with the
size of a potential transaction/benefit. The alternative sanctions
available under subsection 141.1(6) have the effect of penalising a body
corporate proportionately to either the benefit obtained, or 10% of the
annual turnover of the body corporate, so that the risk of being
successfully prosecuted for this offence outweighs the potential benefit
from the transaction/benefit procured through the bribe.
The corporate multiplier outlined in subsection 4B(3) of the Crimes Act,
does not apply to this corporate penalty because a contrary intention is
expressed that the penalty for a body corporate is 100,000 penalty units.
Subsection 141.1(7) explains what the annual turnover of a body corporate
is. It is the sum of all the supplies the body corporate and any body
corporate related to the body corporate have made or are likely to make,
with some exceptions. Those exceptions include supplies made between
related bodies corporate, input taxed supplies, supplies that are not for
consideration and supplies that are not made in connection with an
enterprise that the body corporate carries on. Those exceptions are
necessary because otherwise the assessment of a body corporate's annual
turnover would not be accurate.
Subsection 141.1(8) clarifies that expressions used in subsection
141.1(7) that are also used in the GST Act have the same meaning in
141.1(7) as they do in the GST Act.
Subsection 141.1(9) provides guidance on how to determine whether two
bodies corporate are related to each other. This concept is relevant to
determining a penalty amount under subparagraph 141.1(6)(b) and
subsection 141.1(7).
Subsection 141.1(9) states that the question of whether two bodies
corporate are related to each other is to be determined in the same way
as for the purposes of the Corporations Act. Section 50 of the
Corporations Act provides that two bodies corporate are related where one
body corporate is a holding company, or a subsidiary or a subsidiary of a
holding company of another body corporate.
Schedule 9 - Drug importation
Item 1
Item 1repeals the definition of import in section 300.2 of the Criminal
Code Act 1995 and substitutes it with a new definition. The new definition
is as follows:
import, in relation to a substance, means import the substance into
Australia and includes:
(a) bring the substance into Australia, and
(b) deal with the substance in connection with its importation.
Whereas the old definition provided:
import includes bring into Australia.
This amendment extends the definition of import to bring the current drug
importation offences into line with earlier drug importation offences. The
amendment reverses any inadvertent narrowing of the provisions that
occurred when the previous drug offences in the Customs Act 1901 were
replaced by new drug offences inserted into Division 300 of the Criminal
Code Act 1995 through the Law and Justice Legislation Amendment (Serious
Drug Offences and Other Measures) Act 2005 (Cth).
Scope of the definition of 'import'
The New South Wales Criminal Court of Appeal decision in Campbell v R
[2008] NSWCCA 214, compared the scope of the term 'import' used in the
current Commonwealth drug importation offences with the scope of the term
'importation' that was used in the previous Commonwealth drug offences in
the Customs Act 1901.
The CCA held that the statutory context of the 307.11 offence, in contrast
with earlier offence provisions 'suggests a precise rather than expansive,
sense of the word 'imports''. The Court held:
'imports' under Division 307 of the Criminal Code Act 1995, requires the
controlled drugs and precursors to arrive in Australia from abroad and to
be delivered to a point which would result in the goods remaining in
Australia.
This point would generally be when the goods first arrive in Australia.
Effect of the new definition
The definition of import has been extended to include dealing with a
substance in connection with its importation. As such, the new definition
of import relates to a process that extends before and beyond the period of
the goods being landed in Australia.
The effect of this amendment is that the Commonwealth drug importation
offences will capture criminal activity related to the bringing of drugs
into Australia and subsequent criminal activity connected with the
importation of drugs.
The terms 'deal with the substance in connection with its importation'
paragraph (b) of the definition are intended to be broad their application.
For example, paragraph (b) would capture the following dealings with the
substance:
a) packaging the goods for importation into Australia
b) transporting the goods into Australia
c) recovering the imported goods after landing in Australia
d) making the imported goods available to another person
e) clearing the imported goods
f) transferring the imported goods into storage
g) unpacking the imported goods
h) arranging for payment of those involved in the importation process.
The examples above are not exhaustive.
Schedule 10 - Amendments consequential on enactment of joint commission
offence
GENERAL OUTLINE
Schedule 10 contains consequential amendments that ensure that references
to the extensions of criminal responsibility provisions in Part 2.4 of the
Criminal Code Act 1995 are correct.
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).
Amendments consequential upon the enactment of joint commission
The Crimes Legislation Amendment (Serious and Organised Crime) Bill
introduced a new joint commission provision to be inserted into section
11.2A 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 has been inserted into Part 2.4 of the
Criminal Code, alongside other provisions that extend criminal
responsibility to persons who were not wholly responsible for committing an
offence.
Schedule 10 contains consequential amendments that include a reference to
this new provision in other pieces of Commonwealth legislation, alongside
existing references to the current extensions of criminal responsibility
provisions in the Criminal Code.
A reference to joint commission has been added to each existing provision
that refers to the complicity and common purpose provision in 11.2 of the
Criminal Code because joint commission is a closely related extension of
criminal responsibility.
Item 1
This item inserts a reference to section 11.2A of the Criminal Code into
subparagraph 199(9)(b)(ii) of the Aboriginal and Torres Strait Islander Act
2005.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Subparagraph 199(9)(b)(ii) currently refers to the complicity and common
purpose provision in section 11.2 of the Criminal Code and as joint
commission is a closely related extension of criminal responsibility, it is
appropriate to also include a reference to the new provision.
Items 2 and 3
These items insert a reference to section 11.2A of the Criminal Code into
subparagraph 75(c)(i) and paragraph 188(a) of the A New Tax System (Family
Assistance)(Administration) Act 1999.
These items are consequential amendments, which include a reference to the
new joint commission provision inserted into section 11.2A of the Criminal
Code through the Crimes Legislation Amendment (Serious and Organised Crime)
Bill 2009.
Subparagraph 75(c)(i) and paragraph 188(a) currently refer to the
complicity and common purpose provision in section 11.2 of the Criminal
Code and as joint commission is a closely related extension of criminal
responsibility, it is appropriate to also include a reference to the new
provision.
Item 4
This item inserts a reference to section 11.2A of the Criminal Code into
subparagraph 47(9)(b)(ii) of the Australian Institute of Aboriginal and
Torres Strait Islander Studies Act 1989.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Subparagraph 47(9)(b)(ii) currently refers to the complicity and common
purpose provision in section 11.2 of the Criminal Code and as joint
commission is a closely related extension of criminal responsibility, it is
appropriate to also include a reference to the new provision.
Item 5
This item inserts a reference to section 11.2A of the Criminal Code into
paragraph 496-20(1)(a) of the Corporations (Aboriginal and Torres Strait
Islander) Act 2006.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Paragraph 496-20(1)(a) currently refers to the complicity and common
purpose provision in section 11.2 of the Criminal Code and as joint
commission is a closely related extension of criminal responsibility, it is
appropriate to also include a reference to the new provision.
Item 6
This item inserts a reference to section 11.2A of the Criminal Code into
paragraph 1042F(2)(b) of the Corporations Act 2001.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Paragraph 1042F(2)(b) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Items 7 and 8
These items insert a reference to section 11.2A of the Criminal Code into
paragraph 50AA(2)(b) and subsection 50AA(3) of the Crimes Act 1914.
These items are consequential amendments, which include a reference to the
new joint commission provision inserted into section 11.2A of the Criminal
Code through the Crimes Legislation Amendment (Serious and Organised Crime)
Bill 2009.
Paragraph 50AA(2)(b) and subsection 50AA(3) currently refer to the
complicity and common purpose provision in section 11.2 of the Criminal
Code and as joint commission is a closely related extension of criminal
responsibility, it is appropriate to also include a reference to the new
provision.
Item 9
This item inserts a reference to section 11.2A of the Criminal Code into
subsection 10(1) of the Crimes (Biological Weapons) Act 1976.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Subsection 10(1) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Item 10
This item inserts a reference to section 11.2A of the Criminal Code into
subsection 8(5) of the Crimes (Internationally Protected Persons) Act 1976.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Subsection 8(5) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Items 11 - 16
These items insert a reference to section 11.2A of the Criminal Code into
the following provisions of the Crimes (Ships and Fixed Platforms) Act
1992:
. Subsection 5A(3)
. Subsection 18(5) (definition of offence against this Division)
. Subsection 20(6) (definition of offence against Division 1)
. Subsection 29(5) (definition of offence against this Part)
. Paragraph 30(1)(b)
. Paragraph 31(b)
These items are consequential amendments, which include a reference to the
new joint commission provision inserted into section 11.2A of the Criminal
Code through the Crimes Legislation Amendment (Serious and Organised Crime)
Bill 2009.
The provisions listed above currently refer to the complicity and common
purpose provision in section 11.2 of the Criminal Code and as joint
commission is a closely related extension of criminal responsibility, it is
appropriate to also include a reference to the new provision.
Item 17
This item inserts a reference to section 11.2A of the Criminal Code into
paragraph 16AA(1)(b) of the Customs Administration Act 1985.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Paragraph 16AA(1)(b) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Item 18
This item inserts a reference to section 11.2A of the Criminal Code into
subsection 54A(6) of the Defence Force Discipline Act 1982.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Subsection 54A(6) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Item 19
This item inserts a reference to section 11.2A of the Criminal Code into
paragraph 87AA(b) of the Excise Act 1901.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Paragraph 87AA(b) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Item 20
This item inserts a new subsection (8A) into section 61B of the Great
Barrier Reef Marine Park Act 1975. Subsection (8A) refers to section 11.2A
of the Criminal Code.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Subsection 61B(8) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Item 21
This item inserts a reference to section 11.2A of the Criminal Code into
subsection 3(1) (paragraph (b) of the definition of offence against this
Act) of the Historic Shipwrecks Act 1976.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
The paragraph (b) of the definition of offence against this Act currently
refers to the complicity and common purpose provision in section 11.2 of
the Criminal Code and as joint commission is a closely related extension of
criminal responsibility, it is appropriate to also include a reference to
the new provision.
Item 22
This item inserts a reference to section 11.2A of the Criminal Code into
paragraph 225(5)(b) of the Patents Act 1990.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Paragraph 225(5)(b) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Item 23
This item inserts a reference to section 11.2A of the Criminal Code into
subsection 99A(9) of the Privacy Act 1988.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Subsection 99A(9) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Item 24
This item inserts a reference to section 11.2A of the Criminal Code into
section 338 (paragraph (g) of the definition of serious offence) of the
Proceeds of Crime Act 2002.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
The paragraph (g) of the definition of serious offence currently refers to
the complicity and common purpose provision in section 11.2 of the Criminal
Code and as joint commission is a closely related extension of criminal
responsibility, it is appropriate to also include a reference to the new
provision.
Item 25 and 26
These items insert a reference to section 11.2A of the Criminal Code into
subparagraph 56(2)(a)(ii) and subsection 62(14) of the Sea Installations
Act 1987.
These are consequential amendments, which include a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Subparagraph 56(2)(a)(ii) and subsection 62(14) currently refer to the
complicity and common purpose provision in section 11.2 of the Criminal
Code and as joint commission is a closely related extension of criminal
responsibility, it is appropriate to also include a reference to the new
provision.
Item 27
This item inserts a reference to section 11.2A of the Criminal Code into
paragraph 1224AB(b) of the Social Security Act 1991.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Paragraph 1224AB(b) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Item 28
This item inserts a reference to section 11.2A of the Criminal Code into
paragraph 288(a) of the Social Security (Administration) Act 1999.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Paragraph 288(a) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Item 29
This item inserts a reference to section 11.2A of the Criminal Code into
subsection 66(8) of the Superannuation (Resolution of Complaints) Act 1993.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Subsection 66(8) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Item 30
This item inserts a reference to section 11.2A of the Criminal Code into
subsection 150(2) of the Trade Marks Act 1995.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Subsection 150(2) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Item 31
This item inserts a reference to section 11.2A of the Criminal Code into
subsection 9(2) of the War Crimes Act 1945.
This is a consequential amendment, which includes a reference to the new
joint commission provision inserted into section 11.2A of the Criminal Code
through the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009.
Subsection 9(2) currently refers to the complicity and common purpose
provision in section 11.2 of the Criminal Code and as joint commission is a
closely related extension of criminal responsibility, it is appropriate to
also include a reference to the new provision.
Schedule 11 - References to repealed provisions of the Crimes Act 1914
GENERAL OUTLINE
Schedule 11 contains minor and consequential amendments that ensure that
references to the extensions of criminal responsibility provisions in Part
2.4 of the Criminal Code Act 1995 are correct. For more information on
Part 2.4 of the Criminal Code, see general outline of Schedule 10, above.
Item 4 of Schedule 51 to the Law and Justice Legislation Amendment
(Application of the Criminal Code) Act 2001, repealed sections 3BB, 4, 5,
7, 7A, 14, 15D and 86 of the Crimes Act 1914. In particular, sections 5,
7, 7A and 86 were repealed because equivalent provisions were inserted in
to Part 2.4 of the Criminal Code as set out in the table below:
|Repealed Crimes Act provision |Equivalent extension of |
| |criminal responsibility |
| |provision in Part 2.4 of the |
| |Criminal Code |
|Section 5 - aiding and |Section 11.2 - complicity and |
|abetting |common purpose |
|Section 7 - attempt |11.1 - attempt |
|Section 7A - inciting or |11. 4 - incitement |
|urging the commission of an | |
|offence | |
|Section 86 - conspiracy |11.5 - conspiracy |
However, other Commonwealth legislation was not amended at that time to
incorporate the changes made by the Law and Justice Legislation Amendment
(Application of the Criminal Code) Act 2001.
Schedule 11 contains minor and consequential amendments that amend other
Commonwealth legislation to:
. omit references to repealed provisions in the Crimes Act
. replace references to repealed provisions in the Crimes Act with
references to the corresponding extension of criminal responsibility
provision in the Criminal Code, and
. include a reference to the new joint commission provision in section
11.2A of the Criminal Code, consistent with amendments in Schedule 10.
Item 1
This item repeals paragraphs (a) and (b) of the definition of offence
against this Act in subsection 16(7) of the Aircraft Noise Levy Collection
Act 1995, and substitutes new paragraphs that refer to section 6 of the
Crimes Act and sections 11.1, 11.4 and 11.5 of the Criminal Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
Item 2
This item amends subsection 225(6) of the Airports Act 1996 by omitting the
words 'created by section 6, 7 or 7A or subsection 86(1) of the Crimes Act
1914', and substituting the words 'against section 6 of the Crimes Act
1914, or against section 11.1, 11.4 or 11.5 of the Criminal Code'.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to the corresponding
sections in the Criminal Code.
Item 3
This item amends subsection 3(3) of the Antarctic Marine Living Resources
Conservation Act 1981 by omitting the words 'created by section 6, 7 or 7A
of the Crimes Act 1914', and substituting the words 'against section 6 of
the Crimes Act 1914, or against section 11.1 or 11.4 of the Criminal Code'.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
Item 4
This item amends subsection 3(3) of the Antarctic Treaty (Environment
Protection) Act 1980 by omitting the words 'created by section 6, 7 or 7A
or 86 of the Crimes Act 1914', and substituting the words 'against
section 6 of the Crimes Act 1914, or against section 11.1, 11.4 or 11.5 of
the Criminal Code'.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
Item 5
This item amends subsection 15B(1B) of the Crimes Act by omitting the words
'arising under section 5, or under' and substituting the words 'that is
taken to have been committed because of section 11.2 or 11.2A of the
Criminal Code, or against'.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
This item also inserts a reference to section 11.2A of the Criminal Code
into subsection 15B(1B) because joint commission is an extension of
criminal responsibility closely related to section 11.2 of the Criminal
Code. The new joint commission provision was inserted into section 11.2A
of the Criminal Code by the Crimes Legislation Amendment (Serious and
Organised Crime) Bill 2009.
Item 6
This item repeals the definition of offence against this Part in section 51
of the Crimes Act and substitutes a new definition. The new definition
refers to section 6 of the Crimes Act and sections 11.1, 11.2, 11.2A, 11.4
and 11.5 of the Criminal Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
This item also inserts a reference to section 11.2A of the Criminal Code
into the definition because joint commission is an extension of criminal
responsibility closely related to section 11.2 of the Criminal Code. The
new joint commission provision is to be inserted into section 11.2A of the
Criminal Code Act by the Crimes Legislation Amendment (Serious and
Organised Crime) Bill 2009.
Item 7
This item amends paragraph 108(b) of the Defence Act 1903 by omitting the
words 'created by section 6, 7 or 7A or 86(1) of the Crimes Act 1914', and
substituting the words 'section 6 of the Crimes Act 1914, or against
section 11.1, 11.4 or 11.5 of the Criminal Code'.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
Item 8
This item amends subsection 4(2) of the Environment Protection (Sea
Dumping) Act 1981 by omitting the words 'created by section 6, 7 or 7A of
the Crimes Act 1914', and substituting the words 'against section 6 of the
Crimes Act 1914, or against section 11.1 or 11.4 of the Criminal Code'.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
Item 9
This item repeals paragraph (d) of the definition of relevant offence in
subsection 16(2) of the Export Markets Development Grants Act 1997 and
substitutes a new definition that refers to section 6 of the Crimes Act and
sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
This item also inserts a reference to section 11.2A of the Criminal Code
into paragraph (d) because joint commission is an extension of criminal
responsibility closely related to section 11.2 of the Criminal Code. The
new joint commission provision is to be inserted into section 11.2A of the
Criminal Code by the Crimes Legislation Amendment (Serious and Organised
Crime) Bill 2009.
Item 10
This item repeals paragraph 78(1)(d) of the Export Markets Development
Grants Act 1997 and substitutes new provisions that refer to section 6 of
the Crimes Act and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the
Criminal Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
This item also inserts a reference to section 11.2A of the Criminal Code
into paragraph (d) because joint commission is an extension of criminal
responsibility closely related to section 11.2 of the Criminal Code. The
new joint commission provision is to be inserted into section 11.2A of the
Criminal Code by the Crimes Legislation Amendment (Serious and Organised
Crime) Bill 2009.
Item 11
This item repeals subsection 189(4) of the Gene Technology Act 2000 and
substitutes new provisions that refer to section 6 of the Crimes Act 1914
and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
This item also inserts a reference to section 11.2A of the Criminal Code
into subsection 189(4) because joint commission is an extension of criminal
responsibility closely related to section 11.2 of the Criminal Code. The
new joint commission provision was inserted into section 11.2A of the
Criminal Code by the Crimes Legislation Amendment (Serious and Organised
Crime) Bill 2009.
Item 12
This item repeals subparagraphs (c)(i) and (ii) of the definition relevant
offence in subsection 23DA(1) of the Health Insurance Act 1973, and
substitutes new paragraphs that refer to section 6 of the Crimes Act and
sections 11.1, 11.4 and 11.5 of the Criminal Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
Item 13
This item repeals paragraphs 378(7)(a) and (b) of the Offshore Minerals Act
1994 and substitutes new paragraphs that refer to section 6 of the Crimes
Act and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal Code.
This item is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
This item also inserts a reference to section 11.2A of the Criminal Code
into paragraphs 378(7)(a) and (b) because joint commission is an extension
of criminal responsibility closely related to section 11.2 of the Criminal
Code. The new joint commission provision is to be inserted into section
11.2A of the Criminal Code by the Crimes Legislation Amendment (Serious and
Organised Crime) Bill 2009.
Item 14
This item repeals paragraph 65(9)(b) of the Ozone Protection and Synthetic
Greenhouse Gas Management Act 1989 and substitutes new paragraphs that
refer to section 6 of the Crimes Act and sections 11.1, 11.2, 11.2A, 11.4
and 11.5 of the Criminal Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
This item also inserts a reference to section 11.2A of the Criminal Code
into paragraph 65(9)(b) because joint commission is an extension of
criminal responsibility closely related to section 11.2 of the Criminal
Code. The new joint commission provision is to be inserted into section
11.2A of the Criminal Code by the Crimes Legislation Amendment (Serious and
Organised Crime) Bill 2009.
Item 15
This item repeals subsection 76(9) of the Plant Breeder's Rights Act 1994
and substitutes new paragraphs that refer to section 6 of the Crimes Act
and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
This item also inserts a reference to section 11.2A of the Criminal Code
into subsection 76(9) because joint commission is an extension of criminal
responsibility closely related to section 11.2 of the Criminal Code. The
new joint commission provision is to be inserted into section 11.2A of the
Criminal Code by the Crimes Legislation Amendment (Serious and Organised
Crime) Bill 2009.
Item 16
This item amends subsection 3(7) of the Shipping Registration Act 1981 by
omitting the words 'created by section 6, 7 or 7A of the Crimes Act 1914',
and substituting the words 'against section 6 of the Crimes Act 1914, or
against section 11.1 or 11.4 of the Criminal Code'.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
Item 17
This item repeals the definition of offence against this Act in subsection
4(1) of the South Pacific Nuclear Free Zone Treaty Act 1986 and substitutes
a new definition that refers to section 6 of the Crimes Act and sections
11.1, 11.4 and 11.5 of the Criminal Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
Item 18 and 19
These items repeal paragraphs 32(2)(a) and (b), and paragraphs 33(5)(a) and
(b) of the South Pacific Nuclear Free Zone Treaty Act 1986 and substitutes
new paragraphs that refer to section 6 of the Crimes Act and sections 11.1,
11.4 and 11.5 of the Criminal Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
Item 20
This item repeals subsection 8J(6) of the Taxation Administration Act 1953
and substitutes a new paragraph that refers to section 11.1 of the Criminal
Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
Item 21
This item amends subsection 8J(8) of the Taxation Administration Act 1953
by omitting the words 'section 7 of the Crimes Act 1914', and substituting
the words 'section 11.1 of the Criminal Code'.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
Item 22
This item repeals subsection 32(8) of the Tobacco Advertising Prohibition
Act 1992 and substitutes a new subsection that refers to section 6 of the
Crimes Act and sections 11.1, 11.2, 11.2A, 11.4 and 11.5 of the Criminal
Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
This item also inserts a reference to section 11.2A of the Criminal Code
into subsection 32(8) because joint commission is an extension of criminal
responsibility closely related to section 11.2 of the Criminal Code. The
new joint commission provision is to be inserted into section 11.2A of the
Criminal Code by the Crimes Legislation Amendment (Serious and Organised
Crime) Bill 2009.
Item 23
This item amends subsection 79(5) of the Trade Practices Act 1974 by
omitting the words 'Sections 5, 7 and 7A of the Crimes Act 1914 and section
11.1 of the Criminal Code', and substituting the words
'Subsections 11.1(1), 11.2(1), 11.2A(1) or 11.4(1) of the Criminal Code'.
This item is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
This item also inserts a reference to section 11.2A of the Criminal Code
into subsection 79(5) because joint commission is an extension of criminal
responsibility closely related to section 11.2 of the Criminal Code. The
new joint commission provision is to be inserted into section 11.2A of the
Criminal Code by the Crimes Legislation Amendment (Serious and Organised
Crime) Bill 2009.
Item 24
This item amends the definition of offence against this Act in section 4 of
the Tradex Scheme Act 1999 by omitting the words 'section 6, 7 or 7A or
subsection 86(1) of the Crimes Act 1914', and substituting the words
'section 6 of the Crimes Act 1914, or against section 11.1, 11.4 or 11.5 of
the Criminal Code'.
This item is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.
Item 25
This item repeals paragraphs (a) and (b) of the definition of offence
against this Act in section 3 of the Weapons of Mass Destruction
(Prevention of Proliferation) Act 1995 and substitutes new paragraphs that
refer to section 6 of the Crimes Act and sections 11.1, 11.4 and 11.5 of
the Criminal Code.
This is a minor amendment, which ensures that references to repealed
sections of the Crimes Act are replaced by references to corresponding
sections in the Criminal Code.