Revised Explanatory Memorandum
(Circulated by authority of the Attorney-General, The Honourable Nicola Roxon MP)Schedule 6 - Proceeds of crime amendments
Part 1 of Schedule 6 amends the Director of Public Prosecutions Act 1983 (DPP Act) and the Proceeds of Crime Act 2002 (the POCA) to enhance the proceeds of crime regime and facilitate the operation of the new Criminal Assets Confiscation Taskforce (the Taskforce).
During the 2010 election, the Government announced that it would establish a new multi-agency Criminal Assets Confiscation Taskforce, led by the Australian Federal Police (AFP), to enhance the identification of potential criminal asset confiscation matters and strengthen their pursuit.
On 10 March 2011, the Government formally launched the multi-agency Taskforce. The Taskforce brings together agencies with a key role in the investigation and litigation of proceeds of crime matters, including the AFP, the Commonwealth Director of Public Prosecutions (DPP), the Australian Crime Commission (ACC) and the Australian Taxation Office (ATO).
The Crimes Legislation Amendment Bill (No. 2) 2011 was introduced into Parliament on 23 March 2011 and, if passed, will enable the Commissioner of the AFP to commence and conduct proceeds of crime litigation on behalf of the Taskforce. Previously, the DPP has been the only authority able to undertake this litigation.
This Bill will make several further amendments to facilitate the work of the Taskforce and improve proceeds of crime processes, including:
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- amending the POCA to allow a court to make an order restricting or prohibiting the publication of matters relating to applications for freezing orders and restraining orders if it appears necessary to prevent prejudice to the administration of justice
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- making consequential amendments to the DPP Act to remove a similar provision allowing a court to restrict or prohibit publication of certain matters relating to applications for restraining orders under the POCA, and
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- amending the POCA to expand the definition of 'authorised officer' to include authorised employees or secondees to the AFP who are part of the Taskforce.
Part 2 of Schedule 6 sets out the application of the amendments in Part 1.
Part 1 - Amendments
Director of Public Prosecutions Act 1983
Item 1 - Subsection 16A(1AB)
Item 1 is consequential to item 9 of Schedule 6. Item 1 repeals subsection 16A(1AB) which allows the Court to make an order prohibiting or restricting the publication of matters contained in affidavits made in support of applications for restraining orders. This provision only applies where the DPP has applied for a restraining order.
Under item 9, a new provision will be placed in the POCA to allow a court to make an order restricting or prohibiting publication of certain matters if either the DPP or the Commissioner of the AFP has applied for a restraining order. This is necessary because, following the passage of the Crimes Legislation Amendment Bill (No. 2) 2011, the Commissioner of the AFP will be empowered to commence and conduct litigation under the POCA, including making applications for restraining orders. The new provision inserted by item 9 supersedes subsection 16A(1AB) of the DPP Act, and consequently this subsection is being repealed.
Item 2 - At the end of subsection 16A(1B)
Item 2 is consequential to item 1 and item 9 of Schedule 6.
The note inserted by item 2 will clarify that a court also has the power to make an order similar to an order under subsection 16A(1B) where an application for restraining orders has been made under the POCA. The note reflects that item 9 will insert section 28A into the POCA, which will allow a court to prohibit or restrict disclosure of matters contained in affidavits that form part of an application for a restraining order under the POCA.
Item 3 - Subsection 16A(2)
Item 3 is consequential to Item 1 and removes the reference to subsection 16(1AB) which Item 1 will repeal.
Proceeds of Crime Act 2002
Item 4 - Subsection 15B(1) (note 1)
Item 4 is consequential to Item 10 of Schedule 6 which amends the definition of 'authorised officer' in section 338 to include not only AFP members but also other AFP employees or secondees. Item 4 repeals the note that refers to the old definition of authorised officer and substitutes a note that reflects the new definition.
Item 5 - Section 15C (note)
Item 5 is consequential to Item 10 which amends the definition of 'authorised officer' in section 338 to include not only AFP members but also other AFP employees or secondees. Item 5 repeals the note that refers to the old definition of authorised officer and substitutes a note that reflects the new definition.
Item 6 - Subsection 15D(1) (note)
Item 6 is consequential to Item 10 which amends the definition of 'authorised officer' in section 338 to include not only AFP members but also other AFP employees or secondees. Item 6 repeals the note that refers to the old definition of authorised officer and substitutes a note that reflects the new definition.
Item 7 - After section 15F
Item 7 inserts new section 15FA in Chapter 2, Part 2-1A, Division 2 of the POCA, which deals with how freezing orders are obtained. Subsections (1) and (2) of section 15FA will allow a magistrate to make an order prohibiting or restricting the publication of certain matters contained in affidavits in support of an application for a freezing order if it appears to the magistrate to be necessary in order to prevent prejudice to the administration of justice.
Freezing orders may be sought by an authorised officer under section 15C (in person) or section 15D (by telephone or other electronic means) of the POCA as an initial step, prior to seeking a restraining order, and are used to prevent the dissipation of assets for up to three working days (with the possibility of extension). Where an application for a freezing order is made by telephone, fax or other electronic means under section 15D, proposed paragraph 15FA(2)(b) allows for the order to prohibit or restrict publication of matters that are contained, or that are to be contained, in the affidavit made in support of the application. This is because subsection 15D(2) allows an application for a freezing order by telephone, fax or other electronic means to be made before the supporting affidavit has been sworn.
At this early stage in proceeds of crime proceedings, it is important that courts are empowered to prevent the early release of information that could compromise investigations. A court is already able to make a similar order in relation to an application for a restraining orders under section 16A(1AB) of the DPP Act which will be repealed (Item 1) and transferred to the POCA (Item 9). The provisions in relation to freezing orders differ slightly because an authorised officer may apply for a freezing order, whereas under the POCA, restraining orders may only be applied for by a proceeds of crime authority (the DPP or Commissioner of the AFP).
Subsection (3) provides that the magistrate may make an order restricting or prohibiting the publication of matters at any time after the application for the freezing order is made and before it is determined.
Subsection (4) provides that the power to make the order under subsection (2) is in addition to, and is not taken to derogate from, any other power of the magistrate.
Item 8 - At the end of subsection 15P(1)
Item 8 inserts a new note at the end of subsection 15P(1) clarifying who is able to be an authorised officer for the purposes of subparagraph 15P(1)(a).
Item 9 - At the end of Division 2 of Part 2-1
Item 9 inserts a new section 28A. Currently under subsection 16A(1AB) of the DPP Act, a court has the power to restrict or prohibit the publication of certain matters contained in affidavits where the DPP has applied for a restraining order and the court considers it to be necessary to make the order to prevent prejudice to the administration of justice.
Item 1 repeals that subsection from the DPP Act. Item 9 will insert a similar provision into the POCA.
Subsection (1) states that if a proceeds of crime authority applies to a court for a restraining order, the court may make an order under subsection (2). The term 'proceeds of crime authority' will be defined in section 338 of the POCA, following the passage of the Crimes Legislation Amendment Bill (No. 2) 2011, as the Commissioner of the AFP or the DPP.
This amendment is necessary to reflect that the Crimes Legislation Amendment Bill (No.2) 2011, if passed, will enable the Commissioner of the AFP to commence and carry on litigation under the POCA on behalf of the Taskforce. This will include applying for restraining orders. Therefore, magistrates should be empowered to make orders prohibiting or restricting publication of matters contained in the accompanying affidavits, regardless of whether the Commissioner of the AFP or the DPP applies for the restraining order.
Subsection (2) provides that if it appears to the court to be necessary in order to prevent prejudice to the administration of justice, the court may make an order prohibiting or restricting the publication of all or any of the matters that are contained in an affidavit made in support of the application that are referred to in subsection 17(3), subsection 18(3), paragraph 19(1)(e), subsection 20(3), or subsection 20A(3) (whichever is applicable to the application).
The list of provisions referred to in subsection (2) includes all of the provisions that are currently listed at subsection 16A(1AB) of the DPP Act, but has been expanded to also include information contained in an affidavit in support of an unexplained wealth restraining order under section 20A(3). This reflects the passage of the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 in February 2010, which amended the POCA to introduce unexplained wealth restraining orders (in section 20A).
Subsection (3) provides that the court may make an order restricting or prohibiting the publication of matters at any time after the application for a restraining order is made and before it is determined.
Subsection (4) provides that the power to make the order under subsection (2) is in addition to, and is not taken to derogate from, any other power of the magistrate.
Item 10 - Section 338 (paragraph (a) of the definition of authorised officer)
Item 10 repeals paragraph (a) of the definition of 'authorised officer' contained in section 338 of the POCA and replaces it with an amended definition.
The current definition of 'authorised officer' allows the Commissioner of the AFP to authorise an AFP member as an authorised officer. An AFP member is defined in section 338 of the POCA as a member or a special member of the AFP (within the meaning of the Australian Federal Police Act 1979 (the AFP Act)).
Under the POCA, authorised officers are able to apply for freezing orders, make an affidavit in support of an application for a restraining order or unexplained wealth order, and exercise certain information gathering tools.
The recently established Criminal Assets Confiscation Taskforce, led by the AFP, includes, for example, financial investigators and forensic accountants employed by, or seconded to, the AFP from agencies such as the Australian Taxation Office and the Australian Crime Commission. Taskforce participants have expertise in investigation and are often actively involved in conducting proceeds of crime investigations, but will not usually be AFP members.
Therefore, subparagraph (a)(ii) will allow the Commissioner of the AFP to authorise non-member staff of the AFP to be an authorised officer.
Subparagraph (a)(iii) will allow the Commissioner of the AFP to authorise an employee of an authority of a State or Territory, or an authority of the Commonwealth, within the meaning of the AFP Act, while he or she is assisting the AFP in the performance of its functions under an agreement under section 69D of that Act, to be an authorised officer.
Section 69D of the AFP Act allows the AFP to second people who have suitable qualifications and experience to assist the AFP in the performance of its functions.
The requirement that a secondee be a government employee before they can be authorised by the Commissioner as an authorised officer provides an additional safeguard, ensuring that the person is subject to public service accountability.
Part 2 - Application of amendments
Item 11 - Application-publication prohibitions relating to restraining and freezing orders
Item 11 sets out the application of the amendments made by items 1, 2, 3, 7 and 9 of Part 1, Schedule 6.
Subitem (1) of this item provides that the amendments made by items 1, 2, 3 and 9 of this Schedule apply in relation to an application for a restraining order under the POCA made on or after the commencement of that item, regardless of whether the conduct on the basis of which the restraining order is sought occurred before, on or after commencement. While these provisions will apply to conduct that occurred prior to commencement, they do not create any retrospective criminal liability. The retrospective application of the provisions will provide clarity as to whether the old provision in the DPP Act or section 28A of the POCA applies. This is particularly important given the conduct leading to a restraining order being made may continue over several years or may not be discovered immediately.
Subitem (2) of this item provides that the amendment made by item 7 of this Schedule applies in relation to an application for a freezing order under the POCA made on or after the commencement of that item, regardless of whether the conduct on the basis of which the freezing order is sought occurred before, on or after commencement. While this provision is retrospective in application, it does not create any retrospective criminal liability. As the conduct to which an application for a freezing order relates may have occurred prior to commencement, retrospective application of this provision will ensure that the court can make an order for the restriction or prohibition of matters contained in affidavits supporting applications for freezing orders as soon as possible. This will help to preserve the integrity of ongoing investigations which may relate to matters that have continued over several years or that may not be discovered immediately.