House of Representatives

Explanatory Memorandum

Circulated By Authority of the Attorney-General, the Honourable Robert Mcclelland MP

Schedule 4 - Other Amendments

Schedule 4, Part 1 - Criminal Code Act 1995

Introduction

Part 1 of Schedule 4 amends the extension of criminal liability provisions in Part 2.4 of the Criminal Code Act 1995 ( the Criminal Code) to insert a new provision that extends criminal liability to persons who jointly commit an offence (joint commission). This Part also contains minor and technical amendments, and consequential amendments, to Part 2.4.

Part 2.4 of the Criminal Code (sections 11.1 - 11.6) contains provisions designed to extend criminal responsibility to persons who do not actually commit an offence, but:

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attempt to commit an offence (attempt at 11.1)

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are accomplices to the commission of an offence (complicity and common purpose at 11.2)

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procure the commission of an offence by an agent (innocent agency at 11.3)

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incite the commission of an offence, (incitement at 11.4) or

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conspire with another person to commit an offence (conspiracy at 11.5).

Item 1 - Subsection 11.1(7)

This item inserts a reference to new section 11.2A (joint commission) and section 11.3 (commission by proxy) into subsection 11.1(7) of the Criminal Code.

The insertion of a reference to section 11.2A into section 11.1(7) is a consequential amendment arising from the insertion of new section 11.2 A into Part 2.4. The effect of this amendment is that a person cannot be charged with attempting to engage in conduct that meets the requirements of section 11.2A. This is appropriate because joint commission only applies to completed offences.

The insertion of a reference to section 11.3 into section 11.1(7) is a minor and technical amendment that clarifies that a person cannot be charged with attempting to engage in conduct that meets the requirements of section 11.3. The note in Item 4 of this Part, renames section 11.3 from 'innocent agency' to 'commission by proxy' (see item 4 for further explanation). This is appropriate because commission by proxy only applies to completed offences.

Item 2 - Subsection 11.2(5)

This item omits the term 'principal offender' from subsection 11.2(5) and substitutes that term with 'other person'.

This is a minor and technical amendment that ensures that section 11.2 is internally consistent. As outlined above, section 11.2 extends criminal responsibility to persons who are accomplices to the commission of an offence by another person. In most subsections in section 11.2, the person who is assisted by the accomplice is referred to as 'other person' whereas in subsection 11.2(5), that person is referred to as the 'principal offender'. Therefore, the reference to the term 'principal offender' is inconsistent with the rest of subsection 11.2, and potentially misleading.

This amendment does not change the substantive effect of subsection 11.2(5). The subsection continues to ensure that a person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the 'other person' has not been prosecuted or has not been found guilty.

Item 3 - Subsection 11.2(6)

This item omits the words 'to the offence of aiding, abetting, counselling or procuring the commission of that offence' from subsection 11.2(6) and substitutes those words with 'for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1)'.

This minor and technical amendment ensures that 11.2(6) does not mistakenly refer to section 11.2 as an independent offence. The words 'to the offence of aiding, abetting, counselling or procuring the commission of that offence' mistakenly suggest section 11.2 is an offence. Section 11.2 is not an offence, because liability under this provision is derived from a connection to a principal offence. Liability depends on proof that another person or persons committed the offence.

This amendment does not change the substantive effect of subsection 11.2(6).

Item 4 - After subsection 11.2

This item inserts a new section 11.2A (joint commission) into Part 2.4 of the Criminal Code.

Joint commission applies when two or more people agree to commit an offence together, and an offence is committed under that agreement. The effect of joint commission is that responsibility for criminal activity engaged in under the agreement by one member of the group is extended to all other members of the group. Given that joint commission is a provision that extends criminal responsibility for offences, it is being inserted into Part 2.4, alongside other provisions that extend criminal responsibility to persons who were not wholly responsible for committing an offence.

People who jointly commit an offence under this provision are to be known as 'joint offenders', as distinct from accomplices, to reflect joint responsibility for the commission of an offence.

Reasons for inserting joint commission into Part 2.4

The new joint commission provision addresses a gap in Part 2.4 of the Criminal Code by introducing into the Code the common law principle of 'joint criminal enterprise' (sometimes referred to as offenders 'acting in concert' in the commission of an offence).

None of the existing grounds for extending criminal responsibility in Part 2.4 capture circumstances where there is an agreement to commit an offence, and the offence is committed under that agreement.

Prior to the enactment of the Criminal Code, the prosecution would have relied upon the common law principle of joint criminal enterprise to capture offenders who acted together in the commission of an offence.

The view that joint criminal enterprise is not available under the Criminal Code has been confirmed in cases prosecuted after the enactment of the Criminal Code. For example, in the unreported case of R v Pui Man Liu and Sin Chun Wong, Justice Keleman of the New South Wales District Court held that joint criminal enterprise did not exist under the Code.

Subsection 11.2A(1)

Subsection 11.2A(1) sets out the circumstances in which joint commission applies, and its effect.

The threshold requirements for the application of joint commission are:

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a person and at least one other person enter into an agreement to commit an offence, and either

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an offence is committed in accordance with that agreement, or

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an offence is committed in the course of carrying out the agreement.

The other requirements for the application of joint commission are set out in subsections 11.2A(2) - 11.2A(8). The meaning of agreement is set out in 11.2A(5). The detail of how an offence may be committed in accordance with the agreement, or committed in the course of carrying out the agreement are set out in subsections 11.2A(2) and 11.2A(3). Offences committed under an agreement are known as 'joint offences'.

Where these threshold requirements are met, the effect of joint commission is to extend criminal responsibility for joint offences to each party to the agreement. A person that is convicted of a joint offence is liable to receive the penalty prescribed for that offence.

The default fault elements in section 5.6 of the Criminal Code do not apply to subsection 11.2A(1). The fault element for entering into an agreement to commit an offence is provided in subsection 11.2A(2).

Subsection 11.2A(2)

Subsection 11.2A(2) sets out the requirements for how a joint offence may be committed 'in accordance with' an agreement to commit an offence, referred to in subparagraph 11.2A(1)(b)(i).

If the requirements of this subsection are met, joint commission will apply to extend criminal responsibility to a person for a joint offence committed in accordance with the agreement.

The first requirement is that the joint offence that is actually committed must be an offence of the same type as the offence agreed to. The requirement is broad enough to cover situations where the exact offence agreed to may not have been committed by the parties to the agreement, but a joint offence of the same type was committed. This is particularly relevant where people agree to commit a specific drug offence, but the quantity of the drugs, or the type of drug varies from the offence agreed to. For example, if two people agree to import 1 kilogram of cocaine (marketable quantity), and instead import 1.5 kilograms of heroin (commercial quantity), this definition is broad enough to capture the offence of importing 1.5 kilograms of heroin, because it is an offence of the same type as the offence agreed to.

The other requirements that this subsection imposes are:

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the conduct of one or more parties must make up the physical elements consisting of conduct of the joint offence

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where an element of the joint offence consists of a result of conduct, that result arises from the conduct engaged in, and

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where an element of the joint offence consists of a circumstance, the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.

These other requirements work together to ensure the prosecution is required to demonstrate the existence of all the physical elements of the joint offence. The structure of the subsection is designed to address the three types of physical elements that may be present in a Commonwealth offence (as set out in section 4.1 of the Criminal Code), and recognises that offences commonly contain more than one physical element.

The key paragraph is 11.2A(2)(a) which provides that the physical elements of conduct of the joint offence may be proved by demonstrating that one or more parties to the agreement engaged in that conduct. This allows the prosecution to aggregate the criminal conduct of parties to the agreement. This aggregation is consistent with the common law formulation of joint criminal enterprise found in McAuliffe v The Queen [ 1995] HCA 37; (1995) 183 CLR 108 at 118; and confirmed in Clayton v R [ 2006] HCA 58; (2006) 231 ALR 500.

The ability to aggregate the conduct of parties to the agreement is the central point of joint commission. This enables the prosecution to target groups who divide criminal activity between them. For example, the prosecution would be able to charge two offenders with robbery by aggregating their conduct where one offender makes a threat and the other offender appropriates the Commonwealth property (section 132.2 of the Criminal Code).

Further, the ability aggregate the conduct of the parties to the agreement means that it is not necessary for the prosecution to specify which party to the agreement engaged particular conduct. This is helpful in situations where it is not possible to determine with precision the role of each party to the agreement.

The ability to aggregate the conduct of parties to the agreement also enables the prosecution to charge more serious offences. This is particularly relevant for drug offences, where the penalties are linked to the quantity of drugs dealt with (section 314.1 of the Criminal Code sets out the quantity of controlled drugs required for a trafficable quantity, marketable quantity and commercial quantity).

For example, the prosecution would be able to charge three defendants with importing a commercial quantity of heroin (1.5 kilograms of heroin) by aggregating the conduct of each offender where they import 500 grams each. The offence of importing a commercial quantity of heroin carries a penalty of life imprisonment or 7,500 penalty units (section 307.1 Criminal Code). Without aggregation, each party to the agreement to import 1500 grams of heroin could only be charged with importing a marketable quantity, attracting a maximum penalty of 25 years imprisonment.

Subsection 11.2A(3)

Subsection 11.2A(3) sets out the requirements for how a joint offence may be committed 'in the course of carrying out' an agreement to commit an offence, referred to in 11.2A(1)(b)(ii).

If the requirements of this subsection are met, joint commission will apply to extend criminal responsibility to a person for a joint offence committed in the course of carrying out the agreement.

This subsection provides that a joint offence is committed in the course of carrying out the agreement where:

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an offence, other than the offence agreed to, was committed by another party to the agreement (also known as a collateral offence)

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in the course of carrying out the agreement, and

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the person was reckless as to the commission of that collateral offence by the other party.

Recklessness is a fault element defined in section 5.4 of the Criminal Code. In accordance with section 5.4, the person will be reckless with respect to the commission of a collateral offence by another party to the agreement, if he or she is aware of a substantial risk that the offence will be committed, and having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

The operation of this subsection is explained through the following example.

For example, persons A and B agree to commit the Commonwealth offence of people smuggling by bringing two non-citizens into Australia (section 73.1 Criminal Code). In the course of transporting the non-citizens to Australia, person B conceals 500 grams of heroin and imports it into Australia. Here, the collateral offence would be importing a marketable quantity of drugs (section 307.2 Criminal Code).

If the prosecution can prove that person A was aware of a substantial risk that person B would import drugs into Australia and it was unjustifiable to take that risk, then this subsection will apply to extend criminal responsibility for the collateral offence to person A.

This subsection slightly modifies the common law principle of extended common purpose to ensure consistency with the Criminal Code. The common law principle provides that if a party to an agreement to commit an offence foresees the possibility that a collateral offence will be committed, and, despite that foresight, continues to participate in the agreement, that party will be held criminally responsible for the collateral offence : McAuliffe v The Queen [ 1995] HCA 37; (1995) 183 CLR 108 at 118 ; Gillard v The Queen [ 2003] HCA 64; (2003) 219 CLR 1 at 36 [112]. In this subsection, the possible foreseeability test is replaced with a test of recklessness, as recklessness is the appropriate fault element in the Criminal Code and is most consistent with the common law.

The rationale for this provision is:

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it will act as a deterrent for people who are considering whether to participate in group criminal activity, and

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people who choose to commit crimes in concert with others, should share responsibility for criminal activity that occurs during the course of carrying out the agreement to commit an offence.

These arguments are expressed by Justice Kirby in Gillard v The Queen ( 2003) 219 CLR 1, [62].

Those who participate in activities highly dangerous to life and limb share equal responsibility for the consequences of the acts that ensue. This is because, as the law's experience shows, particularly when dangerous weapons are involved in a crime scene, whatever the actual and earlier intentions of the secondary offender, the possibility exists that the primary offender will use the weapons, occasioning death or grievous bodily harm to others. The law then tells the secondary offender not to participate because doing so risks equal inculpation in such serious crimes as ensue.

Subsection 11.2(4)

Subsection 11.2(4) provides that joint commission will apply where the person and one other party to the agreement intended to commit an offence under the agreement.

Intention is a fault element defined in section 5.2 of the Criminal Code. This subsection requires the person to have intention with respect to a physical element of conduct (conduct that would constitute the commission of an offence in accordance with the agreement). Section 5.2 provides that a person has intention with respect to conduct if he or she means to engage in that conduct.

Joint commission will only apply to a party to an agreement to commit an offence, if that person means to engage in conduct that would bring that offence about. For example, joint commission will not apply to people who joked about impersonating a Commonwealth public official, but did not intend to actually commit that offence (section 148.1 Criminal Code).

Subsection 11.2(4) does not have the effect of altering the fault elements applicable to the joint offence.

Subsection 11.2(5)

Subsection 11.2(5) ensures that a non-verbal understanding is covered by the term 'agreement', and provides a temporal requirement for when an agreement to commit an offence can occur for the purpose of joint commission.

'Agreement' is intended to be broad in its meaning and to capture any agreement, arrangement or understanding that can be implied or inferred taking into account all of the circumstances. This is consistent with case law on the application of the common law principle of joint enterprise : McAuliffe v The Queen [ 1995] HCA 37; (1995) 183 CLR 108 at 118 [12]. For example, 'agreement' is intended to include:

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express agreements - verbal or written understandings, communicated in person or through electronic means such as phone or internet, and

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implied agreements - non-verbal understandings communicated through a person's actions, gestures, or implied through other means.

Subsection 11.2(5)(b) provides that the agreement may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in. This timing ensures that joint commission applies to agreements made before the joint offence was completed and also at the time the joint offence was being committed. For example, if two separate burglars meet while breaking into one Commonwealth building, they may assist each other and share the stolen property without communicating verbally or making any prior agreements or arrangements about the burglary (see section 132.4 Criminal Code).

Subsection 11.2(6)

Subsection 11.2(6) provides that a person cannot be found guilty of a joint offence if, before the offence was committed, the person terminated his or her involvement and took all reasonable steps to prevent the commission of the offence.

This section acts as a safeguard to prevent joint commission from applying to a person who genuinely withdraws from an agreement to commit an offence. The person is required to 'take all reasonable steps to prevent the commission of the offence'. What will amount to taking all reasonable steps will vary according to the case, but examples may include:

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discouraging the other parties to the agreement

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alerting the proposed victim

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withdrawing goods necessary for committing the crime (for example, a getaway car or weapon), and

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giving a timely warning to law enforcement authorities, before the offence is committed.

The withdrawal provision acts a defence to the application of joint commission, since a person 'cannot be found guilty' if they withdraw from the commission of an offence. Therefore, by virtue of subsection 13.3(3) of the Criminal Code, the defendant will bear an evidential burden of proof to point to evidence that suggests a reasonable possibility that the requirements of subsection 11.2A(6) are satisfied.

This paragraph is consistent with subsection 11.2(4) in the complicity and common purpose provision.

Subsection 11.2(7)

Subsection 11.2(7) provides that a person can be convicted of a joint offence even where the following circumstances exist:

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one other party to the agreement has not been prosecuted or found guilty, or

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where the person was not present when any of the conduct that made up the joint offence occurred.

Paragraph 11.2(7)(a) provides that joint commission will apply regardless of the status of criminal proceedings against other parties to the agreement. This reflects the position that criminal responsibility under joint commission is not dependent on whether other parties to the agreement are found guilty of the joint offence. This paragraph is consistent with subsection 11.2(5) in the complicity and common purpose provision.

Paragraph 11.2(7)(b) provides that joint commission will apply regardless of whether a person was absent when conduct making up the physical elements of the joint offence occurred. This provision recognises that offences can be committed by offenders, acting in pursuance of an agreement, who may not be in close physical proximity to each other, or to their victim (if applicable). Further, given that many offences can be committed through electronic communication such as telephones or the internet, it is appropriate that joint commission apply in circumstances where parties to the agreement were not present when conduct making up the physical elements of the joint offence occurred.

Subsection 11.2A(8)

Subsection 11.2A(8) provides that any 'special liability provisions' which apply to the joint offence also apply to joint commission.

The Dictionary to the Criminal Code provides a definition of special liability provisions. There are three types of special liability provisions:

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a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence; or

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a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew a particular thing; or

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a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed a particular thing.

Special liability provisions in the Criminal Code are often used to relieve the prosecution from the need to prove fault with respect to jurisdictional elements of an offence. A jurisdictional element of an offence is an element that does not relate to the substance of the offence, but marks a jurisdictional boundary between matters that fall within the legislative power of the Commonwealth, States or Territories. Generally, absolute liability applies to jurisdictional elements of Commonwealth offences.

The effect of this subsection is to ensure that any special liability provisions that apply to the joint offence also apply for the purposes of determining whether a person is guilty of that offence through joint commission.

This subsection is consistent with the following provisions: attempt at 11.1(6A), complicity and common purpose at 11.2(6), incitement at 11.4(4A), and conspiracy at 11.5(7A).

Note below subsection 11.2A(8)

The note below subsection 11.2A(8) replaces the current heading to section 11.3 of the Criminal Code, 'Innocent Agency', with 'Commission by Proxy'. This amendment is not related to joint commission.

This is a minor and technical amendment which ensures that the heading to section 11.3 reflects its purpose and operation. Section 11.3 applies to defendants who use another person as their agent or instrument to commit an offence. A defendant can be convicted of an offence if they procure another person to engage in conduct that would amount to that offence or part of that offence. The provision can apply both where the agent unwittingly engages in conduct that constitutes an offence (sometimes referred to as an 'innocent agent') and where the agent has some knowledge of the offence they have committed.

The title 'Innocent Agency' is therefore misleading as it does not capture situations where the agent has some knowledge of the crime for which they acted as an agent. 'Commission by proxy' more accurately reflects the operation of the section.

Item 5 - Subsection 11.6(4)

This item amends the note beneath subsection 11.6(4) of the Criminal Code to omit a reference to section 11.3 (innocent agency) and substitute it with a reference to sections 11.2A (joint commission) and 11.3 (commission by proxy).

This is a consequential amendment that updates subsection 11.6(4) to refer to new section 11.2A, and the new heading to section 11.3.

The effect of this amendment is that section 11.6(4) will not refer to 11.2A or 11.3 as offences against a law of the Commonwealth. This is appropriate because these sections are extension of criminal responsibility provisions rather than independent offences.

Item 6 - Subsection 14.1(1)

This item amends the note beneath subsection 14.1(1) of the Criminal Code to omit a reference to subsection 11.2(1) and substitute it with a reference to subsections 11.2(1) and 11.2A(1).

This is a consequential amendment that updates subsection 14.1(1) to refer to the new joint commission provision.

The effect of the amendment is that references to 'offence' in section 14.1(1) will be supported by a note indicating that subsection 11.2A(1) and other relevant provisions give the expression 'offence' an extended meaning. This is appropriate because section 11.2A extends criminal responsibility for joint offences.

Item 7 - Subsection 15.1(1)

This item amends the note beneath subsection 15.1(1) of the Criminal Code to omit a reference to subsection 11.2(1) and substitute it with a reference to subsections 11.2(1) and 11.2A(1).

This is a consequential amendment that updates subsection 15.1(1) to refer to the new joint commission provision.

The effect of the amendment is that references to 'offence' in section 15.1(1) will be supported by a note indicating that subsection 11.2A(1) and other relevant provisions give the expression 'offence' an extended meaning. This is appropriate because section 11.2A extends criminal responsibility for joint offences.

Item 8 - Subsection 15.2(1)

This item amends the note beneath subsection 15.2(1) of the Criminal Code to omit a reference to subsection 11.2(1) and substitute it with a reference to subsections 11.2(1) and 11.2A(1).

This is a consequential amendment that updates subsection 15.2(1) to refer to the new joint commission provision.

The effect of the amendment is that references to 'offence' in section 15.2(1) will be supported by a note indicating that subsection 11.2A(1) and other relevant provisions give the expression 'offence' an extended meaning. This is appropriate because section 11.2A extends criminal responsibility for joint offences.

Item 9 - Subsection 15.3(1)

This item amends the note beneath subsection 15.3(1) of the Criminal Code to omit a reference to subsection 11.2(1) and substitute it with a reference to subsections 11.2(1) and 11.2A(1).

This is a consequential amendment that updates subsection 15.3(1) to refer to the new joint commission provision.

The effect of the amendment is that references to 'offence' in section 15.3(1) will be supported by a note indicating that subsection 11.2A(1) and other relevant provisions give the expression 'offence' an extended meaning. This is appropriate because section 11.2A extends criminal responsibility for joint offences.

Item 10 - Section 15.4

This item amends the note beneath section 15.4 of the Criminal Code to omit a reference to subsection 11.2(1) and substitute it with a reference to subsections 11.2(1) and 11.2A(1).

This is a consequential amendment that updates subsection 15.4 to refer to the new joint commission provision.

The effect of the amendment is that references to 'offence' in section 15.4 will be supported by a note indicating that subsection 11.2A(1) and other relevant provisions give the expression 'offence' an extended meaning. This is appropriate because section 11.2A extends criminal responsibility for joint offences.

Item 11 - Subsection 70.5(1)

This item amends the note beneath subsection 70.5(1) of the Criminal Code to insert a reference to subsection 11.2A.

This is a consequential amendment that updates subsection 70.5(1) to refer to the new joint commission provision.

The effect of the amendment is that references to 'offence' in section 70.5(1) will be supported by a note indicating that subsection 11.2A(1) and other relevant provisions give the expression 'offence' an extended meaning. This is appropriate because section 11.2A extends criminal responsibility for joint offences.

Item 12 - Paragraph 302.6(a)

This item amends paragraph 302.6(a) of the Criminal Code to insert a reference to subsection 11.2A.

This is a consequential amendment that updates paragraph 302.6(a) to refer to the new joint commission provision. The effect of this amendment is that joint commission cannot apply to hold a person criminally responsible for an offence against Division 302 of the Criminal Code merely because the person purchases or intends to purchase a controlled drug from another person.

This amendment is consistent with the policy behind this provision. The other extensions of criminal responsibility provisions (including section 11.2, 11.4 or 11.5) are also excluded from operating to make a person responsible for an offence against the Division because the person purchases, or intends to purchase, a controlled drug from another person.

Item 13 - Dictionary in the Criminal Code (paragraph (b) of the definition of ancillary offence)

This item amends paragraph (b) the definition of ancillary offence in the dictionary of the Criminal Code to insert a reference to subsection 11.2A.

This is a consequential amendment that updates the definition of ancillary offence to refer to the new joint commission provision. This is appropriate because joint commission is an extension of criminal responsibility provision rather than an independent offence.

Schedule 4, Part 2 - Amendments to the Telecommunications (Interception and Access) Act 1979

Division 1 - Offences involving criminal organisations

Division 1 amends the definition of "serious offence" within new subsection 5D(9) of the Telecommunications (Interception and Access) Act 1979 ( the TIA Act) to include particular conduct that would target associating with, contributing to, aiding and conspiring with a criminal organisation or a member of that organisation for the purpose of supporting the commission of prescribed offences. It also includes any offence against section 93T of the Crimes Act 1900 (NSW) within the definition of a "serious offence" in new subsection 5D(3AA).

The purpose of the amendments is to allow telecommunications interception to be available for the investigation of these offences by State and Territory law enforcement agencies. Schedule 4 Part 2 also includes amendments to defined "associate", "criminal organisation" and "member" to further clarify the operation of the proposed subsection 5D(9).

The explicit reference to offences against section 93T of the Crimes Act is due to the structure of legislation within New South Wales. To be an offence as defined by subsection 5D(9) in New South Wales, it must be an offence against the Crimes (Criminal Organisations Control) Act 2009.

The amendments respond to the growing effect of organised crime on the Australian community and recent legislative action from State and Territory Governments who have introduced new serious and organised crime offences.

Division 1 also adds relevant terms to the TIA to define the terms associate, criminal organisation and member.

Item 14 - Subsection 5(1)

Item 14 of Part 2 of Schedule 4 inserts a definition of "associate" in relation to the new offences that will be included in the definition of "serious offence" in section 5D of the TIA Act by Item 17. The definition draws on the definition of associate in the Crimes (Criminal Organisations Control) Act 2009 of New South Wales (the NSW Act) and the Serious and Organised Crime (Control) Act 2008 of South Australia (the SA Act). This definition will ensure an individual is taken to "associate" with a criminal organisation if they are in communication with the organisation, or a member of the organisation, even if they are not involved in face to face contact with the organisation or one of its members.

Item 15 - Subsection 5(1)

Item 15 inserts a definition of "criminal organisation" into the TIA Act. The definition will provide greater clarity for both interception agencies and issuing authorities when applying for and assessing applications for telecommunications interception warrants for the investigation of serious and organised crime offences.

The definition makes reference to organisations which have been declared under either the NSW or SA Acts.

The definition will also provide for the Attorney-General to prescribe certain State and Territory laws which define a criminal organisation to ensure that the TIA Act provides for a national approach to combating serious and organised crime and encompasses any new laws enacted by States and Territories.

Item 16 - Subsection 5(1)

Item 16 inserts a definition of "member" into subsection 5(1) of the TIA Act to clarify which individuals will be considered members of criminal organisations. The definition of member is based on the NSW and SA Acts and includes prospective members of an organisation, as well as individuals who identify themselves as members of a criminal organisation or individuals who are perceived as members. This provision will ensure that all persons who participate in the activities of a criminal organisation which generally do not have any formal structure, as in a body corporate or registered corporation, fall within the term 'member'.

Item 16A

Interception agencies can apply for a telecommunications interception warrant in relation to the investigation of a serious offence. Item 16A will amend the definition of 'serious offence' in section 5D of the TIA Act to include offences against section 93T of the Crimes Act 1900 ( NSW).

"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).

As well as the provisions in the New South Wales Act, section 93T of the Crimes Act (NSW) contains offences committed by and on behalf of criminal groups, including directing the activities of a criminal organisation and assaulting a police officer on behalf of a criminal organisation. The definition of a criminal group under section 93T is the same as for a criminal organisation which can be declared under the C(COC)A.

Organised crime offences in other jurisdictions that are similar to section 93T of the Crimes Act (NSW), will have telecommunications interception available to investigate declared criminal organisations. The inclusion of section 93T of the Crimes Act ensures there is a nationally consistent approach to combating organised crime.

Item 17 - New subsection 5D(9)

Item 17 amends section 5D of the TIA Act to include offences relating to an individual's involvement in serious and organised crime.

The conduct targeted includes:

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associating with a criminal organisation, or a member of a criminal organisation;

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contributing to the activities of a criminal organisation;

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aiding, abetting, counselling or procuring the commission of a prescribed offence for a criminal organisation;

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being, by act or omission, in any way, directly or indirectly, knowingly concerned in, or party to, the commission of a prescribed offence for a criminal organisation; or

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conspiring to commit a prescribed offence for a criminal organisation.

Telecommunications interception needs to be available for the investigation of these offences to ensure that law enforcement agencies can obtain the most effective evidence of an individual's involvement with serious and organised crime.

The provisions refer to the commission and facilitation of "prescribed offences". A prescribed offence is defined in the TIA Act as either a serious offence, or an offence which carries a maximum penalty of at least three years' imprisonment. This measure recognises the invasive nature of telecommunications interception and ensures that the community's expectations of both operational effectiveness and appropriate protections for privacy are balanced.

Item 18 - Application

Item 18 applies so that an offence against subsections 5D(9) or 5D(3AA) can be investigated with the assistance of telecommunications interception regardless of whether or not the conduct in question occurred before or after the conduct was included in the definition of "serious offence".

The provisions do not retrospectively criminalise any action. They allow law enforcement agencies access to the same techniques to investigate criminal activity, regardless of when that criminal activity has occurred.

Division 2 - Use of information for purposes of organised crime control laws

As well as limiting access to telecommunications interception, the TIA Act also places strict limits on how intercepted information can be used and disclosed. Division 2 of Part 2 to Schedule 2 will make amendments to the TIA Act so that agencies can use and disclose lawfully intercepted information to obtain declarations of organisations as criminal organisations as well as applying for control orders on individual members of controlled organisations.

Item 18A

Item 18A will insert a definition of 'organised crime control law' into section 5 of the TIA Act. This will ensure that where a law of a State relates to combating organised crime or restricting the activities of criminal organisation, State interception agencies will be able to use and disclose lawfully intercepted information in certain prescribed circumstances.

The TIA Act allows lawfully intercepted information to be used to investigate criminal conduct which is linked to many criminal organisations as well as conduct of organisations which have been declared organisations under a relevant State law. This amendment will accommodate the nexus between the two points.

Item 18B

New item 18B will add conjunctions at the end of a number of the subparagraphs of subsection 5(1) of the definition of 'permitted purpose' for consistency with current drafting practice.

Item 18C

New item 18C will amend the definition of 'permitted purpose' in section 5 of the TIA Act. This will allow State and Territory interception agencies to use lawfully intercepted information in the preparation and making of applications for declarations of criminal organisations and control orders against individual members of such organisations.

The TIA Act contains a general prohibition on the use of lawfully intercepted information, subject to limited exceptions. One such exception is the use or disclosure of information for a 'permitted purpose' as defined in section 5 of the TIA Act.

Item 18D

New item 18D will amend section 5B of the TIA Act to include in the definition 'exempt proceedings', proceedings relating to matters arising under 'organised crime control laws'.

This amendment will enable a person to give lawfully intercepted information in evidence in 'exempt proceedings' under section 74 of the TIA Act for the declaration of an organisation as a criminal organisation or to assist applications for control orders against individual members of such organisations.

Item 18E

New item 18E adds conjunctions at the end of a number of the paragraphs of subsection 6L(1) of the definition of 'relevant proceeding' for consistency with current drafting practice.

Items 18F and 18G

New items 18F and 18G will amend section 6L of the TIA Act to include in the definition of 'relevant proceeding', proceedings relating to matters arising under 'organised crime control laws'.

The definition of 'permitted purpose' allows the use and communication of lawfully intercepted information to be used in the decision of whether or not to commence a 'relevant proceeding' and for the relevant proceeding itself.

This amendment will have the same effect as the amendment to 'permitted purpose' at new item 18C, including its application to information that was obtained before commencement, but will apply to applications for declarations and control orders which are decided by a court.

Item 18H

New item 18H will amend section 68 of the TIA Act to allow the communication of lawfully intercepted information to recipient agencies for the purpose of preparing or making an application for a declaration of a criminal organisation or a control order for members of such organisations.

This amendment will assist agencies involved in joint operations established to combat organised crime. It will ensure agencies can exchange information in order to compile the strongest possible case for an application for a declaration or a control order

Item 18J

New item 18J will enable the communication, use and making of a record of information, and the giving of information in evidence in proceedings, on or after the commencement of this item, whether the information was obtained before or after that commencement.

The provisions do not retrospectively criminalise any action. They allow law enforcement agencies access to the same techniques to investigate and prosecute criminal activity, regardless of when that criminal activity has occurred.

Part 3 - Regulations

Item 19 Regulations

Item 19 will allow the Governor-General to make regulations necessary for, or prescribed by, the TIA Act. In particular, this power is necessary to ensure that State controlled operations and assumed identity laws can be prescribed for the purposes of the retrospective protection set out in Schedule 3.