House of Representatives

Explanatory Memorandum

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

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:

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supporting a criminal organisation to facilitate or commit serious offences

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committing a serious offence for the benefit, or at the direction, of a criminal organisation, and

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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:

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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

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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:

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the person's spouse or de facto partner

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a parent, step-parent or grandparent of the person

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a child, stepchild or grandchild of the person

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a brother, sister, step-brother or step-sister of the person, and

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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:

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a person (the first person) intentionally associated with another person (the second person) on two or more occasions

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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

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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

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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

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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:

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the first person had previously been convicted of an offence against the basic offence

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the first person intentionally associated with another person (the second person)

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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

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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

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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

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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:

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with a close family member

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in a place being used for public religious worship and takes place in the course of practicing a religion

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only for the purpose of providing aid of a humanitarian nature, or

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only for the purpose of providing legal advice or legal representation in connection with:

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criminal proceedings

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proceedings relating to the actual or possible declaration of an organisation under State and Territory criminal organisation laws, or

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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:

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the person intentionally provided material support or resources to an organisation or a member of an organisation

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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

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the person was reckless as to the circumstance that the organisation consists of two or more persons

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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

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the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years, and

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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:

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the person has committed an offence against any law (the underlying offence)

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the person is reckless as to the result that the underlying offence is for the benefit of an organisation

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the person is reckless as to the circumstance that the organisation consists of 2 or more persons

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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

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the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years, and

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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:

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the person has committed an offence against any law (the underlying offence)

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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

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the person is reckless as to the circumstance that the organisation consists of two or more persons

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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

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the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years, and

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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:

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the person intentionally directed one or more activities of an organisation

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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

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the person is reckless as to the circumstance that the organisation consists of 2 or more persons

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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

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the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years, and

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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:

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the person intentionally directed one or more activities of an organisation

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the person is reckless as to the result that the activity or activities directed constitute an offence against any law

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the person is reckless as to the circumstance that the organisation consists of 2 or more persons

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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

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the offence against any law mentioned in paragraph (d) is an offence against any law punishable by imprisonment for at least 3 years, and

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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:

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associating in support of serious organised criminal activity

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supporting a criminal organisation

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committing an offence for the benefit of, or at the direction of, a criminal organisation, and

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directing the activities of a criminal organisation.