Senate

Explanatory Memorandum

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

CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL (No. 2) 2009

GENERAL OUTLINE

To strengthen the Commonwealth response to organised crime, the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 will:

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strengthen criminal asset confiscation and anti-money laundering laws (Schedule 1 and Schedule 5, Part 2)

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enhance search and seizure powers and the ability of law enforcement to access data from electronic equipment (Schedule 2)

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improve the operation of the National Witness Protection Program, including by increasing protection for current and former participants and officers involved in its operation (Schedule 3)

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introduce new offences that would target persons involved in organised crime, and facilitate greater access to telecommunications interception for the investigation of new serious and organised crime offences (Schedule 4)

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improve the operation and accountability of the Australian Crime Commission (Schedule 7)

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improve money laundering, bribery, and drug importation offences (Schedule 5, Part 1, and Schedules 8 and 9), and

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make minor and consequential amendments to correct references to provisions dealing with the extension of criminal liability (Schedules 10 and 11).

The Bill was introduced in the House of Representatives on 16 September 2009 and was referred to the Senate Standing Committee on Legal and Constitutional Affairs, which reported on 16 November 2009. The Senate Committee made six substantive recommendations. The proposed Government amendments will implement three of those recommendations and address issues identified by the Senate Committee during its consideration of the Bill.

The proposed amendments will also address minor and technical issues relating to the operation of the Proceeds of Crime Act 2002, including those identified through ongoing discussions between the Attorney-General's Department and portfolio agencies.

FINANCIAL IMPACT STATEMENT

The amendments to the Bill will have no financial impact.

ACRONYMS

NOTES ON CLAUSES

Amendments to Schedule 1

Amendment (1)

Proposed section 266A, which would be inserted into the Proceeds of Crime Act by the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009, will allow a person to disclose certain information to a specified authority for certain purposes. The section will only apply if the person disclosing the information believes on reasonable grounds that the disclosure will serve that purpose.

Proposed subsection 266A(1) of the Proceeds of Crime Act sets out the information to which the section applies. Currently, this includes information obtained as a direct result of the person being given a sworn statement under an order made under paragraph 39(1)(d) of the Act. Paragraph 39(1)(d) allows a court to make an ancillary order directing an owner of specified property to give a sworn statement setting out particulars of, or dealings with, that property.

This amendment will insert into proposed subsection 266A(1) a reference to proposed paragraphs 39(1)(ca) and (da), to be inserted by this Bill. Those provisions will allow a court to direct a suspect in relation to a restraining order, or a person who a court is satisfied there are reasonable grounds to suspect has information relevant to identifying, locating or quantifying specified property, to provide a sworn statement setting out certain matters.

The amendment will expand the range of information that may be disclosed under proposed section 266A by applying the provision not only to sworn statements given by an owner (or previous owner) of property, but also by suspects in relation to a restraining order, and persons whom there are reasonable grounds to suspect have information relevant to the property.

Amendment (2)

Subsection 298(1) of the Proceeds of Crime Act currently permits the Minister to approve expenditure out of the Confiscated Assets Account (CAA) on programs in a particular financial year, provided the expenditure is for one or more purposes specified under subsection 298(2) (for example, crime prevention or law enforcement measures).

However, difficulties arise where a program extends over a number of years and requires progress payments. In effect this requires a re-approval process each year which is artificial and inefficient. This amendment would remove the words 'in a particular financial year' from subsection 298(1) so that the Minister will be able to approve progress payments for an approved program over a period of years.

Amendment (3)

Section 297 of the Proceeds of Crime Act sets out the purposes for which funds may be paid out of the CAA. Item 207 of Schedule 1 of the Bill amends section 297 to expressly provide that the funds in the CAA may be used to make payments that the Commonwealth is directed to make by a court order under certain provisions of the Proceeds of Crime Act. These provisions include, for example, relief of hardship payments to dependants of persons whose property is specified in a non-conviction forfeiture order (section 72).

The Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 will insert into the Proceeds of Crime Act proposed section 179L, which relates to the relief of hardship for dependants of a person against whom an unexplained wealth order has been made.

This amendment will amend item 207 of the Bill to insert a reference to proposed section 179L in proposed new paragraph 297(1)(fa). The effect of this amendment will be that payments for orders under section 179L may also be made out of the CAA. This amendment will ensure that the Act gives clear guidance on the source of funds for these payments.

Amendments to Schedule 2

Amendment (4)

Section 3L of the Crimes Act 1914 governs the use of electronic equipment at a search warrant premises. Proposed item 16, Part 2 of Schedule 2 to the Bill will repeal and replace subsection 3L(1) of the Crimes Act. The proposed item removes the requirement for the executing officer or a constable assisting to have reasonable grounds to believe that data accessible from a piece of equipment might constitute evidential material before operating the equipment to access that data. Proposed new subsection 3L(1) states that when executing a warrant, the executing officer or a constable assisting may operate electronic equipment at the warrant premises to access data (including data not held at the premises).

This amendment will amend proposed new subsection 3L(1) to provide that the executing officer may only operate electronic equipment at the warrant premises to access data (including data not held at the premises) if he or she suspects on reasonable grounds that the data constitutes evidential material. This amendment will implement recommendation 6 of the Senate Committee's report on the Bill.

Amendments to Schedule 4

The Bill will insert in the Criminal Code Act 1995 proposed new subsection 390.3, which will create two offences that target associating in support of serious and organised criminal activity. The purpose of these offences is to deter persons from supporting organised crime by criminalising association with other persons involved in organised criminal activity.

Under proposed 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.

The proposed repeat offence under subsection 390.3(2) will apply where a person has already been convicted of an offence under the basic offence (proposed subsection 390.3(1)). It will require proof by the prosecution of the same elements as the basic offence, except that the prosecution will only need to prove that the first person associated with the second person on one further occasion, given the requirement for there to have been a previous conviction under proposed subsection 390.3(1). This offence will also be punishable by a maximum penalty of three years imprisonment.

Amendment (5)

Proposed paragraphs 390.3(1)(c) and 390.3(2)(d) require that, for a person to commit an offence (under subsections 390.3(1) or 390.3(2) respectively), the associations must have facilitated the engagement or proposed engagement by the second person in the second person's conduct. As these physical elements of the offences are a result of conduct, section 5.6 of the Criminal Code would apply the default fault element of recklessness to that physical element.

This amendment will insert a new subsection 390.3(3A), which will state that the fault element for paragraphs 309.3(1)(c) and (2)(d) is intention. This will displace the default fault element of recklessness. A person will have intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events (subsection 5.2(3) of the Criminal Code). Therefore, for a person to be guilty of an offence under proposed subsections 390.3(1) or (2), the prosecution will need to prove beyond reasonable doubt that the person charged with the offence associated with the second person:

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meaning to facilitate the second person's engagement in criminal conduct, or

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while being aware that the association will, in the ordinary course of events, facilitate the second person's engagement in criminal conduct.

This amendment will implement recommendation 1 of the Senate Committee's report.

Amendment (6)

Proposed subsection 390.3(6) will set out a defence to the offences in proposed subsections 390.3(1) and (2) for certain kinds of legitimate associations. For example, the offence will not apply where the association is with a close family member and relates only to a matter that could reasonably be regarded as a matter of family or domestic concern (paragraph 390.3(6)(a)). Further specific exceptions include associations relating to public religious worship (paragraph (b)), humanitarian aid (paragraph (c)) and legal advice or representation with respect to certain specified proceedings (paragraphs (d), (e) and (f)).

This amendment will repeal the defences relating to legal representation in proposed paragraphs 390.3(6)(d) - (f). They will be replaced with a general defence which will apply where the association was for the purpose of providing legal advice or representation in relation to any civil or criminal proceedings, not just criminal, declaration or passport proceedings (proposed new paragraph 390.3(6)(d)). This will ensure that legal advice is available to persons on any matter, and that those providing legal advice are able to do so without fear of prosecution.

This amendment will also insert a general defence where the association was reasonable in the circumstances (proposed new paragraph 390.3(6)(e). This will ensure that the court retains discretion in circumstances not explicitly dealt with in proposed subsection 390.3(6) to make a finding that the association was legitimate in the specific case. This amendment will implement recommendation 2 of the Senate Committee's report.

Amendment (7)

This amendment will insert a new paragraph 390.3(6A) to clarify that each of the defences in proposed subsection 390.3(6) will not limit one another. For instance, it will ensure that proposed paragraph 390.3(6)(e) will not have the effect that the exceptions in the other paragraphs of proposed subsection 390.3(6) need also to be reasonable in the circumstances. For example, if a person associates in a place being used for public religious worship and takes part in the course of practising a religion, then it will not matter whether the association was reasonable in the circumstances.

Amendments (8) and (9)

Proposed subsection 390.3(7) will provide that a person who is convicted of the offence in proposed subsection 390.3(1) will not be liable to be punished again under proposed subsection 390.3(1) for other conduct engaged in by the person that takes place at the same time as, or within 7 days before or after, any of those occasions that led to the original conviction. This will avoid the prospect of a multiplicity of charges concerning the same course of conduct.

This subsection would only address multiplicity of charges under proposed subsection 390.3(1). The amendments will replace the references to subsection (1) with a reference to both subsections (1) and (2). This will prevent multiplicity of charges in relation to the repeat offence under proposed subsection 390.3(2) as well as the offence in proposed subsection 390.3(1).

Amendments to Schedule 7

Item 18 of Schedule 7 to the Bill will insert new proposed sections 34A to 34F in the Australian Crime Commission Act 2002 to enable an Australian Crime Commission (ACC) examiner to refer a witness who is not cooperating with an examination to a court to be dealt with as if the person was in contempt of that court. Proposed subsection 34D(1) will provide that if an ACC examiner proposes to make an application under proposed subsection 34B(1) for a person to be dealt with by a court in relation to contempt of the ACC, he or she may direct a constable to detain the person for the purpose of bringing the person before the court to which the application was made.

This amendment will amend proposed subsection 34D(2) to clarify that it is the examiner, not the ACC, who must apply to the court as soon as practicable under subsection 34B(1) if a person is detained under proposed section 34D(1). This will make proposed subsection 34D(2) consistent with proposed section 34B, which clearly states that it is the examiner who may apply to a court for a person to be dealt with for contempt of the ACC. This amendment will address an issue raised by the Senate Committee during its consideration of the Bill.