Explanatory Memorandum
Circulated by Authority of the Minister for Justice, the Honourable Brendan O'Connor MPPURPOSE
This Bill will bring the ACBPS within ACLEI's jurisdiction on a whole-of-agency basis, facilitate the implementation of the new Criminal Asset Confiscation Taskforce (the Taskforce), and streamline other elements of the proceeds of crime regime.
Australian Commission for Law Enforcement Integrity amendments
Schedule 1 will amend the LEIC Act, to include the ACBPS within ACLEI's jurisdiction. This will expand the ability of the Integrity Commissioner to detect, investigate and prevent corrupt conduct occurring within the ACBPS. The amendments implement the Government's October 2010 response to recommendation 3 of the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity's interim report on the inquiry into the LEIC Act.
Schedule 1 will also amend the Customs Administration Act 1985, to ensure that secrecy provisions applying to Customs employees and others do not preclude disclosures made for the purposes of the LEIC Act or Regulations under the LEIC Act. This will bring the Customs secrecy provisions in line with the Australian Crime Commission (ACC) and Australian Federal Police (AFP) provisions in relation to disclosures to the Integrity Commissioner or ACLEI.
Proceeds of crime amendments
Existing institutional arrangements for confiscating criminal assets have been successful. With the exception of the 2008-09 financial year, the level of confiscation recoveries has increased every year since the introduction of non-conviction based confiscation provisions in the POCA. However, recent developments in the areas of organised crime and proceeds of crime, including the introduction of unexplained wealth proceedings, present an opportunity to revisit these arrangements to increase their effectiveness into the future.
In August 2009, the Parliamentary Joint Committee on the Australian Crime Commission (PJC-ACC) recommended that the Australian Government examine an integrated model of asset recovery in which investigation and prosecution would be undertaken within one agency. During the 2010 election, the Government announced that it would establish a new Criminal Assets Confiscation Taskforce, led by the AFP, to enhance the identification of potential criminal asset confiscation matters and strengthen their pursuit.
The Taskforce commenced operation in January 2011 and is designed to take a more proactive, intelligence-led approach to the identification of potential criminal asset confiscation matters by bringing together intelligence, operations, legal and other specialist resources. The AFP, Australian Taxation Office and the Australian Crime Commission are participating agencies in the Taskforce. The DPP will continue to work closely with the Taskforce in a liaison role. A multi-agency taskforce represents a more streamlined, efficient, coordinated and integrated methodology, with significant operational and administrative benefits, including effective collaboration in the coordinated use of resources, and the streamlining of issues between investigative and litigation resources.
The Bill will allow proceeds of crime matters to be litigated by the Commissioner of the AFP on behalf of the Criminal Assets Confiscation Taskforce.
Part 1 of Schedule 2 will amend the POCA to facilitate the operation of the Taskforce by:
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- enabling the Commissioner of the AFP to exercise the powers and functions relating to confiscation litigation under the POCA, currently exercised only by the DPP, and
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- allowing the Commissioner of the AFP and DPP to transfer matters already commenced between themselves.
Part 1 also contains consequential amendments to the following Acts to reflect that the Commissioner will now be able to undertake proceeds of crime litigation : Administrative Decisions (Judicial Review) Act 1977, Australian Federal Police Act 1979, Bankruptcy Act 1966, Crimes Act 1914, Crimes Legislation Amendment (Serious and Organised Crime) Act 2010, Foreign Evidence Act 1994, International Criminal Court Act 2002, International War Crimes Tribunals Act 1995, Mutual Assistance in Criminal Matters Act 1987 and Trade Marks Act 1995.
The FLA will be amended to reflect the Commissioner's new powers, as well as to allow State and Territory proceeds of crime orders and forfeiture applications to be taken into account in property settlement and spouse maintenance proceedings under FLA Part VIII and VIIIAB, in the same way as Commonwealth proceeds of crime orders and forfeiture applications.
Part 2 of Schedule 2 makes two key amendments to the POCA.
The first amendment will give courts a discretion, when calculating the amount of a pecuniary penalty order, to take into account tax paid after proceedings were commenced under the POCA, based on whether the court is satisfied that it is in the interests of justice to do so. This will prevent the frustration of proceeds of crime proceedings by the belated discharge of a tax liability, as well as protect persons who are unable to settle their tax liability prior to the commencement of POCA proceedings for genuine reasons.
The second amendment will extend the definition of 'property-tracking document' in paragraph 202(5)(ea) to be consistent with the definition of 'wealth' under subsection 179G(1). This will facilitate investigations by aligning the production order provision with unexplained wealth provisions under the POCA.