Bills Digest no. 31 2009–10
Crimes Legislation Amendment (Serious and Organised
Crime) Bill 2009
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Crimes Legislation Amendment (Serious and
Organised Crime) Bill 2009
Date introduced: 25 June 2009
House: House of
Representatives
Portfolio: Attorney-General
Commencement: All provisions with the exception of Schedule 2,
Part 5 (relating to legal aid costs under the Proceeds of Crime
Act 2002 (Cth)) are to commence either on the day on which the
Act receives Royal Assent, or the following day Schedule 2, Part 5
is to commence 3 months and one day after the Act receives Royal
Assent.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The Bill makes significant
amendments to the following Commonwealth Acts: Crimes Act
1914, Criminal Code Act 1995, Customs Act
1901, Family Law Act 1975, Proceeds of Crime Act
2002, Telecommunications (Interception and Access) Act
1979. The amendments are targeted at organised criminal
activity and include unexplained wealth provisions and enhanced
police powers relating to controlled operations, assumed identities
and witness identity protection. This Bill also introduces
liability for persons who jointly commit offences. Finally, the
Bill will also allow for increased access to telecommunications
interception for criminal organisation offences.
This Bill is lengthy and complex and due to time constraints, it
is not possible for the Bills Digest to cover all the detail
presented in the Bill. The Digest has covered the most
controversial and pertinent points of the Bill. Furthermore, the
recent tabling of the Parliamentary Joint Committee on the
Australian Crime Commission s Inquiry into the legislative
arrangements to outlaw serious and organised crime groups[1] and the pending Senate
Legal and Constitutional Affairs Committee s Inquiry into the
provisions of the Bill make it unnecessary to duplicate extensive
background material and commentary.
Unexplained wealth provisions allow a court to issue a
declaration unless the subject of the declaration can establish, on
the balance of probabilities, that his or her wealth was lawfully
acquired. Following an assessment of the quantum of unexplained
wealth, the subject of a declaration must pay the amount to the
jurisdiction.[2]
Historically, the predecessor to the current proceeds of crime
legislation, the Proceeds of Crime Act 1987 was enacted
prior to the international community acknowledging the significance
and importance of unexplained wealth provisions. In 1997, the
Interpol General Assembly passed a resolution which
recognised that unexplained wealth is a
legitimate subject of inquiry for law enforcement institutions in
their efforts to detect criminal activity and that subject to the
fundamental principles of each country s domestic law, legislators
should reverse the burden of proof (use the concept of reverse
onus) in respect of unexplained wealth.[3]
There was not an explicit reason for not drafting unexplained
wealth provisions in the Proceeds of Crime Bill 2002. Possibly the
Government took the approach that without unexplained wealth
provisions, the Bill was already ambitious in its coverage and the
Government could consider unexplained wealth provisions at a later
date if necessary. Primarily, that Bill sought to implement
recommendations in the Australian Law Reform Commission s review of
the Proceeds of Crime Act 1987, entitled Confiscation that
Counts .[4] That
review did not discuss unexplained wealth provisions.
The compulsory statutory review of the Proceeds of Crime Act
2002 was completed in 2006 (the Sherman Review) and Tom
Sherman AO considered that:
to introduce these [unexplained wealth]
provisions would represent a significant step beyond the national
and international consensus in this area.
While this [Interpol General Assembly]
resolution is an important expression of consensus in the
international police community it falls short of the wider
consequence I believe is necessary to support the introduction of
unexplained wealth provisions.
Unexplained wealth provisions are no doubt
effective but the question is, are they appropriate considering the
current tension between the rights of the individual and the
interests of the community? Moreover, the adoption of the
recommendations made in this report will, I believe, make the Act
far more effective in attacking the proceeds of crime.
On balance, I believe it would be inappropriate
at this stage to recommend the introduction of these provisions but
the matter should be kept under review.[5]
In the context of improving the effectiveness of proceeds of
crime legislation, Mr Sherman considered that unexplained wealth
provisions were not necessarily a helpful tool to add to the
legislative framework. However, police and prosecutors are in
favour of having unexplained wealth provisions to address the
difficulties in obtaining sufficient real evidence to proceed with
other confiscation action:
Leaders of criminal enterprises are rarely
close to the predicate criminal activities. Underlings can be paid
to take those risks. Unexplained wealth provisions enable law
enforcement to confiscate the illicit profits that are a number of
steps removed but under the indirect control of organised crime
leaders. The AFP has examples where criminal intelligence has
identified individuals who have accumulated significant assets and
wealth with no detectable legal means to account for it.[6]
Unexplained wealth provisions arguably undermine the presumption
of innocence and rights such as the right to silence and the right
to privacy. This Bills Digest will look at the criticisms of the
proposed provisions under Key Issues below.
Freezing orders will enable the temporary restraint of
liquid assets held in accounts with financial institutions. The
application process for freezing orders will be simpler than for
restraining orders and an expedited application process will be
available in circumstances where the time taken to obtain a formal
restraining order increases the risk that suspected proceeds or
instruments of crime will be transferred to frustrate confiscation
proceedings.[7]
The Sherman Review did not make a recommendation in favour or
against the introduction of interim restraining or freezing orders.
Mr Sherman noted in the report that the Australian Federal Police
(AFP) and the Australian Federal Police Association (AFPA)
submitted that the Act should contain provision for interim
restraining or freezing orders[8] but went on to say that his recommendations
concerning provision for other ex parte applications for
the exercise of other coercive powers will, if implemented, go a
considerable distance towards providing quick action that will not
put a suspect on alert.[9]
Nonetheless, the Government stated that a senior level working
group of Commonwealth agencies reviewed the Sherman Report and
identified additional proposals to improve the operation of the
Act, including the introduction of freezing orders. The Explanatory
Memorandum notes that these proposals were based on their
experience and research since the time of the Sherman
Report.[10] The
time between the tabling of the Sherman Report and the formation of
the working group was 8 months.
The provisions in the Bill relating to the introduction of
freezing orders are problematic from a rights perspective and
submissions on the provisions of the Bill to the Senate Legal and
Constitutional Affairs Committee have expressed strong concerns
about the justification for their introduction. In particular, the
Law Council queries the necessity of the proposed freezing order
regime in light of the already expansive powers to make restraining
orders .[11] This
will be discussed further under Key Issues .
Presently the Act has a six year time limitation period for
non-conviction-based asset recovery. This means that
confiscation is precluded if the relevant offences are not detected
and a restraining application made within six years. The Sherman
Report recommended that the time limitation period be extended to
twelve years, which is the time period allowed under analogous
confiscation legislation in the United Kingdom.[12] Mr Sherman noted that there have
to be some limits on what is essentially a civil liability
.[13] However, the
Government has considered it appropriate to remove the time limit
altogether. Again, the Law Council has criticised the proposal to
remove the time limit and is not convinced that the Department or
the CDPP [Commonwealth Director of Public Prosecutions] has
outlined sufficient grounds to justify a complete removal of any
time limitation on the non-conviction based confiscation scheme
.[14] This proposal
has otherwise not received much attention to date.
Section 329 of the Act defines instrument as either the property
is used in, or in connection with, the commission of an offence; or
the property is intended to be used in, or in connection with, the
commission of an offence; whether the property is situated within
or outside Australia. This could include computers, vehicles,
communications technology. The Explanatory Memorandum notes
that the Act permits the proceeds of a wide
variety of offences to be confiscated on a civil standard of proof
but instruments of indictable offences (other than terrorism
offences) may only be confiscated where a person is convicted of
the offence.[15]
The Sherman Report recommended that instruments of indictable
offences should be subject to non-conviction based restraining and
forfeiture orders under the Act.[16] Mr Sherman stated that there seems no reason in
principle why instruments should not be subject to restraining
orders to the same extent as proceeds .[17] However, the Law Council commented
that:
the expansion of this regime demands to be
justified by sound evidence of necessity. The fact that the
non-conviction based confiscation regime has proven to be an
effective mechanism to remove the proceeds of unlawful activity
does not of itself justify further expansion of this regime to
permit the civil confiscation of instruments of illegal
activity.
The amendments will enable the restraint and forefeiture of
instruments of serious offences without conviction, similar to the
way proceeds of crime can be confiscated without conviction. This
will bring the Commonwealth legislation into line with legislation
in South Australia, Western Australia and Victoria that permits
non-conviction based confiscation of property used (or intended to
be used) in, or in connection with, an offence.[18] Against this background, the
safeguards that the Government proposes for non-conviction based
restraining orders for instruments of indictable offences will be
discussed under the Key Issues in this Digest.
As summarised in the Explanatory Memorandum, in DPP (Cth) v
Hatfield [2006] NSWSC 195, the court held that information
obtained in an examination under Part 3-1 of the Act could only be
used for the purpose of proceedings under the Act, and could not be
used or disclosed for any other purpose.[19] This decision did not go to appeal.
The Sherman Report commented that:
the Hatfield Case provides no guidance
on what constitutes permitted disclosure other than to say that use
of information is permissible in court proceedings designed to
further the actual obtaining of property liable to
confiscation.
The Hatfield Case has introduced
considerable uncertainty to the use and dissemination of
information obtained under the Act. Despite the fact that, unlike
other Commonwealth Acts which contain compulsive powers, the Act
contains no general prohibition on the use of information under the
Act except for the purposes of the Act.[20]
The Sherman Report then made a seemingly common-sense
recommendation that information relating to any serious offence can
be passed to any agency having a lawful function to investigate
that offence. However, as the Law Council has noted, specific
safeguards should be in place to protect against undue intrusion
into the individual rights of those persons in respect to whom
information is gathered and shared.[21] The Explanatory Memorandum notes that
it was never the intention of the Act that information obtained in
an examination could only be used for the purposes of confiscation
proceedings under the Act and could not be shared for any other
reason. Indeed, at the time of the introduction of the Proceeds of
Crime Bill 2002, the Director of Public Prosecutions Guidelines to
Prosecutions under the Proceeds of Crime Act 2002 were
presented to the Parliament. These Guidelines clearly state at
paragraph 5.6 that:
If the material [revealed in an examination]
shows that serious criminal conduct has occurred which is not the
subject of a current investigation the material can be provided to
an appropriate agency for investigation with a view to possible
prosecution.[22]
The Hatfield decision was thus contrary to Parliament s
original intention of the information sharing provisions. The
proposed provisions on disclosure of information put it beyond
doubt that information obtained under the regime can be disclosed
when that information will assist in the prevention, investigation
or prosecution of criminal conduct. Interestingly, the proposed
disclosure provisions are even more wide-reaching than the
Guidelines and include allowing the Australian Taxation Office to
receive information for the purpose of protecting public revenue.
This will be discussed further under Key Issues .
Section 292 presently allows for the Official Trustee to pay a
legal aid commission the legal costs relating to proceedings under
the Act. This is to be paid out of the property covered by a
restraining order. The Sherman Report noted that over 2003-2005, 38
applications were funded by legal aid, totalling almost $200
000.[23] The
Sherman Report considered concerns from the New South Wales Legal
Aid Commission that the existing arrangements are not facilitating
the reimbursement of their costs. In particular, legal aid
commissions are not being promptly reimbursed for money they outlay
in representations in these matters which significantly affects
their ability to fund other legal aid priorities.[24] The Sherman Review recommended
that all claims for legal expenses which have been certified as
fair, reasonable and duly expended by legal aid commissions on
proceedings under the Act should be paid directly out of the CAA
[Confiscated Assets Account] .[25] According to Mr Sherman, the CAA would be able to
manage these costs because the income of the CAA (and the overall
value of recoveries) is much greater than the cost of legal aid.
The estimated balance of the CAA for the period 2008-09 is
approximately $9.5 million.[26]
Based on six years of operation of the Act, the Sherman Review
and submissions from stakeholders suggest that there is no real
concern that the proposed amendments to allow legal aid repayments
out of the CAA will impact on the main purpose of that account,
namely to fund crime prevention, law enforcement, drug treatment
and diversionary measures relating to the illicit use of
drugs[27]. The
proposed changes are not controversial. The Sherman Review went on
to recommend that for accountability purposes, these expenses
should be itemised in the Insolvency and Trustee Service of
Australia s annual report however the Bill does not make amendments
to require this.
Schedule 3 of the Bill implements model provisions relating to
controlled operations, assumed identities and witness protection.
The Explanatory Memorandum offers an exceptionally thorough summary
and explanation of the offences. These provisions are generally not
controversial and the variances from the model laws are only
necessary because of their unique application in the Commonwealth
environment.
This section of the Bills Digest notes the comments and concerns
raised by the Commonwealth Ombudsman, the Law Council of Australia
and Civil Liberties Australia in their respective submissions to
the Senate Legal and Constitutional Affairs Committee s Inquiry
into the Bill However, due to time constraints, it is not possible
to provide a provision-by-provision analysis of this Schedule.
A controlled operation is a law enforcement operation in
which a person is authorised to engage in unlawful conduct in order
to obtain evidence of a serious criminal offence. In a controlled
operation, instead of seeking to terminate immediately a criminal
scheme, law enforcement officers allow the scheme to unfold under
controlled conditions. During the process of allowing the scheme to
unfold [an authorised person] may themselves need to commit
offences.[28]
The Standing Committee of Attorneys-General (SCAG) agreed to a
resolution for a comprehensive national response to combat
organised crime.[29] In that agreement, the SCAG agreed to enhance police
powers by implementing model laws for controlled operations,
assumed identities and witness identity protection. The model laws
for these police powers were first endorsed for implementation in
2004, following the publication of a report entitled
Cross-border Investigative Powers for Law Enforcement.
This report was the result of the 2002 Leaders Summit on
Multi-jurisdictional Crime by the joint Working Group of the
Standing Committee of Attorneys-General and the then Australasian
Police Ministers Council. By enacting the model laws, the
Commonwealth will assist in the harmonisation of laws that will
enhance:
the ability of law enforcement agencies to
investigate multi-jurisdictional criminal activity. This type of
crime is becoming increasingly common due to advances in
information and communication technology, and the increasing
sophistication of organised criminal groups, particularly those
involved in terrorism or trans-national crime, including
drug-trafficking.[30]
Stakeholder groups are generally supportive of the evidence,
concept and need for these provisions. There is some equivocation
of support by the Law Council of Australia and Civil Liberties
Australia who both suggest amendments to enhance the
regime.[31]
Civil Liberties Australia are supportive of the provisions but
recommend that the Bill be amended to also include a specific
provision (based on US and Canadian experience) to the effect that
a person is not to be held criminally responsible for an offence
where a police officer has induced the commission of the crime
(intentionally or otherwise) and the defendants had a lack of
predisposition to engage in the criminal conduct other than that
instilled by the police officer s conduct.[32]
The Commonwealth Ombudsman has stated that the proposed
legislation provides a clearer and more robust exposition of the
Ombudsman in relation to his oversight role .[33] Further, these changes are
strongly supported .[34] The Commonwealth Ombudsman did raise a concern about
reporting mechanisms, discussed under Key Issues further in this
Digest.
An assumed identity is a false identity that is used for the
purpose of investigating, or gathering intelligence on, criminal
activity, or conducting other intelligence or security activities.
Assumed identities provide vital protection for undercover
operatives engaged in infiltrating organised crime groups or
collecting information relevant to national security.[35]
Undercover operatives may need to give evidence in criminal
and civil proceedings. In some cases, it will be necessary to
protect the true identity of the operative to ensure their safety
(or the safety of his or her family). A witness who appears in
person to give evidence, who can be cross-examined, whose demeanour
can be assessed by the court but whose true name and address are
withheld is significantly different from a truly anonymous witness
who does not appear and who the defendant cannot place.
[36]
The Law Council opposes the introduction of proposed Part 1ACA
into the Crimes Act 1914 which introduces a new process
for determining when and how the true identity of a witness in
court proceedings may be concealed:
The Law Council is concerned about the removal
of procedural safeguards designed to protect the individual rights
of the accused. In the context of assumed identities and witness
protection, this has taken the form of removing any oversight or
discretionary role for the court and replacing this with an
internal authorisation procedure, whereby law enforcement and
intelligence agencies are invested with almost exclusive control
over the protection of covert operatives and their
identities.[37]
Only the Law Council of Australia has raised concerns about
these provisions and these will not be explored further. The Law
Council of Australia s submission to the Senate Legal and
Constitutional Affairs Committee s Inquiry into the Bill provides
considerable detail on its opposition to the provisions.[38]
Joint commission applies when two or more people agree to
commit an offence together, and an offence is committed under that
agreement. The effect of joint commission is that responsibility
for criminal activity engaged in under the agreement by one member
of the group is extended to all other members of the
group.[39]
Given that joint commission is a provision that extended
criminal responsibility for offence, it is being inserted into Part
2.4, alongside other provisions that extend criminal responsibility
to persons who were not wholly responsible for committing an
offence.[40]
The SCAG Resolution for a national response to combat organise
crime noted that the Commonwealth will consider the introduction of
a package of legislative reforms to combat organised crime included
measure to address the joint commission of criminal offences
.[41] Joint
commission is not an entirely new concept. It builds on the common
law principle of joint criminal enterprise which is a venture
undertaken by more than one person acting in concert in pursuit of
a common criminal enterprise.[42]
The second reading speech summarises the need and background to
the offence provisions:
In terms of the undertaking of offences by way
of a joint commission of offence with others, the Bill introduces a
new joint commission provision which is targeted at offenders who
commit crimes in organised groups, and hence the relevance to
serious and organised crime.
This provision builds upon the common law
principle of joint criminal enterprise . If a group of two or more
offenders agree to commit an offence together, the effect of joint
commission is that responsibility for criminal activity engaged in
under the agreement by one member of the group is extended to all
other members of the group.
Joint commission targets members of organised
groups who divide criminal activity between them.[43]
The Law Council of Australia and the Australian Federal Police
Association are strongly opposed to the introduction of these
provisions. Their arguments will be raised further under Key Issues
.
The proposed amendments in Schedule 4 Part 2 of the Bill extend
the definition of serious offence under the Telecommunications
(Interception and Access) Act 1979 to include conduct that
would target associating with, contributing to, aiding and
conspiring with a criminal organisation or a member of that
organisation for the purpose of supporting the commission of
prescribed offences.[44]
In the second reading speech on the Bill, the Attorney-General
said that
in order to fight organised crime we must be
able to target those who support the activities of criminal groups.
The Bill will make telecommunications interception available for
the investigation of offences relating to an individual s
involvement in serious and organised crime in those states that
have that legislation in place currently and those that in turn
subsequently introduce such legislation on a similar basis or to a
similar effect.[45]
These provisions have attracted some criticism by the Law
Council and the Office of the Privacy Commissioner but are
otherwise supported by law enforcement authorities. A short
discussion of the Law Council s concerns is under Key Issues
below.
The Explanatory Memorandum states that the Bill implements a set
of resolutions by the Standing Committee of Attorneys-General
(SCAG) for a comprehensive national response to combat organised
crime.[46] In that
agreement, the SCAG agreed to enhance police powers by implementing
model laws for controlled operations, assumed identities and
witness identity protection. The model laws for these police powers
were first endorsed for implementation in 2004, following the
publication of a report entitled Cross-border Investigative
Powers for Law Enforcement. This report was the result of the
2002 Leaders Summit on Multi-jurisdictional Crime by the joint
Working Group of the Standing Committee of Attorneys-General and
the then Australasian Police Ministers Council.
The Bill has been referred to the Senate Legal and
Constitutional Affairs Committee for inquiry and report by 17
September 2009. Details of the inquiry are at
http://www.aph.gov.au/Senate/committee/legcon_ctte/organised_crime/info.htm.
At the time of publication of this Digest, 13 submissions have been
made to that Committee and some of the main points raised in those
submissions are indicated below.
In March 2008, the Parliamentary Joint Committee on the
Australian Crime Commission commenced an inquiry into legislative
arrangements to outlaw serious and organised crime groups pursuant
to paragraph 55(1)(b) of the Australian Crime Commission Act
2002. This Committee presented its report in August 2009 and
contains an excellent contextual background to some of the issues
that this Bill seeks to address, including a useful overview of
unexplained wealth provisions in various jurisdictions.[47] Further, the Committee
also noted its support of the Bill.[48]
The Law Council of Australia have submitted
reservations to some aspects of the Bill, mostly on the grounds
that the provisions are not well-supported by the accompanying
explanatory material and/or are questionably oppressive to an
individual s rights. The Australian Federal Police Association has
made a detailed submission on the unexplained wealth provisions.
Other submissions of significance include the Commonwealth
Ombudsman, the Office of the Privacy Commissioner and Civil
Liberties Australia.
The Explanatory Memorandum states that the amendments in this
Bill have no financial impact on Government revenue.
However, there are no indications as to how much revenue is
anticipated from the proposed unexplained wealth provisions, the
investigation of which is likely to be resource intensive for law
enforcement authorities from time to time. The proposed new
freezing orders also have the potential to be resource intensive
and may require a reconsideration of budget allocation to the
relevant law enforcement authorities.
On 10 September 2009, at the
resumption of debate on the Bill, the Speaker of the House reported
a message from the Governor-General recommending
appropriation.[49]
Further, there is no discussion in the Explanatory Memorandum as
to how the Confiscated Assets Account (CAA) will continue to
function with delays that might be incurred by the provisions in
Part 5 of Schedule 2 requiring the Official Trustee to pay legal
aid commissions from the CAA. The Commonwealth will recover the
amount from the person who received the legal aid but this might be
take considerable time. While the evidence suggests that the new
provisions will not put the CAA into deficit, it is not clear
whether it will have an impact on the provision and administration
of funds to law enforcement programs under section 298 of the
Act.
The provisions in the Bill dealing with unexplained
wealth orders are outlined in this Digest at pages 23-29 and
further background is set out at pages 4-5 above.
A number of jurisdictions, including the UK, Italy, Western
Australia and the Northern Territory, have already adopted
legislation which reverses the onus of proof, enabling authorities
to restrain assets that appear to be additional to an individual s
legitimate income and requiring that individual to demonstrate that
those assets were obtained legally.[50]
South Australia has recently introduced the Serious and
Organised Crime (Unexplained Wealth) Bill 2009 which adopts
the Northern Territory model. The South Australian Police have said
that the effectiveness of the proposed unexplained wealth
declarations rests on the Crown being relieved of the need to prove
the defendant is, or has been, involved in criminal activity or
that a particular asset is linked to a particular crime .[51]
However, there are strong arguments against the introduction of
unexplained wealth provisions. The effectiveness of the provisions
at deterring crime and the anticipated revenue that may be raised
is questionable. In the context of the debate about
heavy-handedness with laws relating to organised crime, the federal
shadow Attorney-General George Brandis SC is reported as saying
that governments that wish to expand the reach of ever-invasive
laws have a strong burden of persuasion to show why the existing
laws need more extension. [52] The proposed unexplained wealth provisions are an
example of this expanding reach.
According to the Law Council of Australia, the provisions
undermine the presumption of innocence, the right to silence and
reverse the onus of proof. The provisions have the potential for
arbitrary application. The Law Council argue that unexplained
wealth provisions in Western Australia and the Northern Territory
have not proven to be an effective prosecutorial tool. The
provisions are unnecessary in light of other confiscation
mechanisms.[53]
The Australian Federal Police Association and the Police
Federation of Australia have been lobbying for unexplained wealth
provisions for a number of years. However, the AFPA and PFA are
critical of the proposed provisions, stating that the Government
has not introduced unexplained wealth legislation as it is defined,
or exists, in other Australian and international jurisdictions. The
provisions should enable the AFP to investigate whether a person,
company, trust has wealth in excess of its known lawful income and
impose an unexplained wealth declaration accordingly without the
need to link it to an offence. Furthermore, the current provisions
do not enable the AFP to proactively investigate and recover assets
involved in the layering and integration of money
laundering.[54]
In its submission to the Senate Committee s Inquiry into the
Bill, the AFPA and PFA have provided detailed alternative or
possible amendments to the unexplained wealth provisions. The
submission also raises the issue of constitutionality,[55] however it is the view
of the author that the provisions are likely to be within
constitutional power and their validity will not be called into
question.
The Office of the Privacy Commissioner (OPC) has also raised
issues about the unexplained wealth provisions. Consideration could
be given to the authorised officers having to demonstrate to the
court that they have reasonable grounds to believe rather than
reasonable grounds to suspect . Requiring a higher level of
knowledge would lessen the possibility that personal information is
collected from individuals who have not committed any
offences.[56]
Civil Liberties Australia has raised the same concern as the OPC
about the evidentiary burden, saying that the bill in its current
form sets the evidentiary threshold for commencing unexplained
wealth proceedings too low, relying on reasonable suspicion as
opposed to reasonable belief .[57]
Amendments to the Act derogate unjustifiably from established
procedural rights such as the presumption of innocence, the right
against self-incrimination and the rule against double jeopardy
.[58] These
criticisms should not be taken lightly and the Parliament needs to
be cognisant that:
One of the big problems we have is that once
the public are desensitised to issues on civil liberties and rule
of law and basic civil liberties safeguards, they become
insensitive to other legislation, commonwealth or state, which is
brought in to attack other perceived problems.[59]
In the committee s view, expressed in the Inquiry into the
legislative arrangements to outlaw serious and organised crime
groups, the unexplained wealth provisions in the Commonwealth s
Bill are a reasoned and measured approach to the problem of
organised crime.[60] However, the committee did note that the
unexplained wealth provisions in WA have had
limited use, with only 13 declarations made between its
commencement in 2000 and June 2008. This supports the evidence that
the committee heard from the Queensland Crime and Misconduct
Commission that the jury is still out on unexplained wealth
.[61]
The committee nonetheless went on to recommend that the
unexplained wealth provisions of this Bill be passed.[62] The committee also
urged the Commonwealth to continue to consult with the States and
Territories about the adoption of uniform unexplained wealth laws
.[63]
The Bill, in Schedule 2 Part 4, inserts new disclosure of
information provisions into the Proceeds of Crime Act.[64] The OPC recommended
that the purposes for disclosure of information acquired in any way
under the Proceeds of Crime Act 2002 should be limited to
the investigation and prevention of serious offences .[65]
Further, OPC noted that disclosure of personal information
overseas for the purposes of criminal investigations should relate
to offences that would be considered serious if they were committed
in Australia.[66]
It is in fact questionable why the provisions have gone so far when
there are other mechanisms in place to deal with the exchange of
information with foreign countries. For example, section 13 of the
Mutual Assistance in Criminal Matters Act 1987 (taking of
evidence and production of documents at the request of a foreign
country) would seem to cover the conduct anticipated by
proposed subsection 266A(2). This subsection
outlines when disclosure is permitted and includes assisting in the
prevention, investigation or prosecution of a crime against a
foreign country s law.
These provisions contained in Schedule 3 of the Bill are
implementing model provisions that have been agreed to by all
jurisdictions. However, there has been some criticism of the
provisions, in particular those relating to controlled operations.
The Law Council of Australia has made the following suggested
amendments to Schedule 3 of the Bill:
- a requirement that an authorisation for a controlled operation
specify the nature of the criminal activities covered by the
authorisation, the identity of each participant in the controlled
operation and the nature of the controlled conduct in which an
authorised participant may engage
- a maximum duration for controlled operations
- enhanced reporting requirements, and
- a continued role for Administrative Appeal Tribunal members in
approving extensions of controlled operations for more than three
months.
Other stakeholders are generally supportive or
silent on the implementation of the model provisions.
In relation to reporting requirements, the
Commonwealth Ombudsman did seek to note that it has come to our
attention that there is generally a lack of easily accessible
records to verify the outcomes of operations and particularly the
handling and possession of narcotic goods during the operation.
[67] It is
noteworthy that the model legislation did provide for a principal
law enforcement officer s report to be prepared and retained at the
conclusions of a controlled operation but this has not been adopted
in this Bill.
The Bill proposes a significant amendment to the Criminal
Code Act 1995 that has largely gone unnoticed, perhaps because
it is overshadowed by debate about the unexplained wealth
provisions. Proposed new section 11.2 of the Code
will put the common law principle of joint criminal enterprise into
the legislative framework. The principle of joint criminal
enterprise (or common purpose):
applies where a venture is undertaken by more
than one person acting in concert in pursuit of a common criminal
design [ ]. Such a common purpose arises where a person reaches an
understanding or arrangement amounting to an agreement between that
person and another or others that they will commit a crime.[68]
The Law Council of Australia does not support the enactment of a
joint commission offence for a number of reasons. Explicitly, LCA
is of the view that there has not been sufficient consultation on
the significant changes and there are uncertainties surrounding the
concepts and the reasons for the introduction of a joint commission
offence.[69] This
is a significant point because, while slightly different to
doctrines of common purpose and complicity, joint commission is
intertwined with one of the most conceptually confusing areas of
criminal law theory. [70] Furthermore, rights such as the right to silence and
freedom of assembly are potentially abrogated with the introduction
of this offence.
South Australian Police submitted that:
With the current legislative reform occurring
across the country which allows organised crime groups to be
declared , there may be consideration to provide higher penalties
for offenders who commit Commonwealth offences whilst a member of a
declared organisation in a state.[71]
The key elements of the offence require the prosecution to
establish that one or more parties to an agreement engaged in a
particular course of conduct. The second reading speech notes
that:
joint commission targets members of organised
groups who divide criminal activity between them. If, for example,
three offenders agree to import heroin into Australia and two of
the offenders each bring in 750 grams of heroin, all three
offenders can be charged with importing a commercial
quantity.[72]
While the provisions are attempting to put into statute what
already exists at common law, greater consideration and debate on
these provisions should occur.
The Law Council of Australia opposes the introduction of the
proposed amendments to the Telecommunications (Interception and
Access) Act 1979 (Cth) which would expand the intrusive
Commonwealth telecommunication interception regime to cover a range
of new offences of a substantially different character to those
currently covered by the definition of serious offence .[73]These amendments are,
according to the Law Council of Australia, wide ranging and
intrusive to personal privacy .[74]
The view of the OPC on these provisions is that any proposal
broadening the telecommunications interception powers should
consider consistent privacy protections. Further, robust reporting
requirements are necessary to ensure transparency and allow for the
ongoing monitoring of the operation of the provisions.
Despite criticism of the provisions by the Law Council of
Australia and the Office of the Privacy Commissioner, these
provisions have also seemingly gone unnoticed with the focus on
more controversial aspects of the Bill.
Items 1-4 are consequential amendments to the
new Part 2-6 of the Act. That Part will fit under
Chapter 2 of the Act which deals with methods of confiscation.
Item 1 inserts proposed paragraph
(5)(ba), stating that it is a principal object of the Act
to deprive a person of unexplained wealth amounts that the person
cannot satisfy a court were not derived from certain offences.
Item 5 will insert a new section
20A to allow for restraining orders to be made over
unexplained wealth. This provision sits underneath section 20 that
deals with restraining orders derived from literary
proceeds.[75]
New section 20A requires[76] an
appropriate court to order that property not be disposed of or
otherwise dealt with by any person (paragraph
20A(1)(a)) or that the property must not be disposed of or
otherwise dealt with by any person except in the manner and
circumstances specified in the order (paragraph
20A(1)(b)) if the following circumstances exist:
- The DPP applies for the order; and (proposed paragraph
20A(1)(c))
- There are reasonable grounds to suspect that a person s total
wealth exceeds the value of the person s wealth that was lawfully
acquired; and (proposed paragraph 20A(1)(d))
- Any affidavit requirements in subsection (3) for the
application have been met; and (proposed paragraph
20A(1)(e))
- The court is satisfied that the authorised officer who made the
affidavit holds the suspicion, or suspicions stated in the
affidavit on reasonable grounds; and (proposed paragraph
20A(1)(f))
- There are reasonable grounds to suspect either or both of the
following (proposed paragraph 20A(1)(g)):
(i) That the person
has committed an offence against a law of the Commonwealth, a
foreign indictable offence or a State offence that has a federal
aspect[77];
(ii) That the
whole or any part of the person s wealth was derived from an
offence against a law of the Commonwealth, a foreign indictable
offence or a State offence that has a federal aspect.
Proposed subsection 20A(2) requires the court
to specify the property that must not be disposed of or otherwise
dealt with, to the extent that the court is satisfied that there
are reasonable grounds to suspect that the property is any one or
more of the following:
(a) All or specified property of the
suspect;
(b) All or specified bankruptcy property of the
suspect;
(c) All property of the suspect other than
specified property;
(d) All bankruptcy property of the suspect other
than specified bankruptcy property;
(e) Specified property of another person
(whether or not that person s identity is known) that is subject to
the effective control of the suspect).
Proposed subsection 20A(3) outlines the
requirements of an affidavit by the authorised officer. The
affidavit must state:
(a) That the authorised officer suspects that
the total wealth of the suspects exceeds the value of the suspect s
wealth that was lawfully acquired;[78] and
(b) If the application is to restrain property of a
person other than the suspect but not to restrain bankruptcy
property of the suspect that the authorised officer suspects that
the property is subject to the effective control of the
suspect[79];
(c) That the authorised officer suspects
either or both of the following:
(i) that the suspect has committed an offence against a law
of the Commonwealth, a foreign indictable offence or a State
offence that has a federal aspect;
(ii) that the whole or any part of the suspect s wealth was
derived from an offence against a law of the Commonwealth, a
foreign indictable offence or a State offence that has a federal
aspect.
Proposed subsection (20A)(4) allows the court
to refuse to make a restraining order if is contrary to the public
interest to do so. No guidance is given as to what matters the
court may or must take into account when considering this issue.
Further, a court can also refuse to make a restraining order if the
Commonwealth refuses to give an undertaking with respect to the
payment of damages or costs, or both, for the making and operation
of the order.
Proposed subsection (20A)(5)
requires the court to make a restraining order even if there is no
risk of the property being disposed of or otherwise dealt with. The
Explanatory Memorandum justifies this provision on the grounds that
it is necessary for a restraining order to be in force before a
court may make an examination order to investigate potential
proceeds of crime.[80]
The court may also specify that a restraining order is to cover
property that the suspect may acquire in the future. If the court
does not specify this, future property is not covered by the order
(proposed subsection 20A(6)).
If a person has applied under section 30 or 31 of the Act for an
order to exclude property from a restraining order or if the court
is otherwise satisfied that the property is another person s
property that is not subject to the suspect s effective control,
then the court can exclude that person s property from the
restraining order under proposed section 29A.
Item 10 of the Bill will insert a note at the
end of subsection 39(1) of the Act (relating to ancillary orders).
The note will state that the court may also order the Official
Trustee to pay the Commonwealth an amount equal to the relevant
unexplained wealth amount out of property covered by the
restraining order (under section 20A).
Item 11 will insert a new subsection to section
45 of the Act. Section 45 deals with the type of restraining orders
that currently exist under the Act. Proposed subsection
45(7) puts it beyond doubt that the section does not apply
to a section 20A restraining order. Proposed section
45A will be inserted to address the cessation of
unexplained wealth restraining orders.[81]
Item 12 will insert new section
45A and that section will outline the grounds when a
restraining order made under section 20A will cease to have force.
Under proposed subsection 45A(1), a restraining
order will cease to be in force within 28 days after the order was
made if no application for a subsection 179E(1) unexplained wealth
order has been made in relation to the suspect to whom the
restraining order relates. Under proposed subsection
45A(2), if a court refuses to make an unexplained wealth
order and all appeal avenues are closed, the restraining order will
cease to be in force. In the case that an application for a
unexplained wealth order is made within 28 days of the restraining
order and is granted by the court (and is complied with or an
appeal has been upheld on the matter), proposed subsection
45A(3) notes that the restraining order will cease to have
force.
Item 13 inserts a new
Part 2-6 in the Proceeds of Crime Act
2002. This Part provides for the making of unexplained wealth
orders.
Division 1 contains provisions on the making of
unexplained wealth orders. It is proposed that there be two types
of orders under this Division; a preliminary unexplained wealth
order and an unexplained wealth order.
Proposed subsection 179B(1) allows a court to
make a preliminary unexplained wealth order requiring a person to
appear before the court. The court will then decide whether to make
an unexplained wealth order if the DPP has applied for such an
order and the court is satisfied that an authorised officer has
reasonable grounds to suspect that the person s total wealth
exceeds the value of the person s wealth that was lawfully
acquired. If the court is so satisfied, any affidavit requirements
(as set out in subsection (2)) must also be met. Proposed
subsection 179B(2) requires that an application for an
unexplained wealth order be supported by an affidavit of an
authorised officer stating the person s details and that the
authorised officer suspects that the persons total wealth exceeds
the value of the person s wealth that was lawfully acquired. The
affidavit must also state the property that the authorised officer
knows or reasonably suspects was lawfully acquired, is owned or is
under the effective control of the person (proposed
subparagraph 179B(2)(c)).
A person may apply to revoke a preliminary unexplained wealth
order under proposed section 179C. The application
must be made within 28 days after the person is first notified of
the preliminary unexplained wealth order. There is some discretion
on the part of the court to allow a longer period to apply to the
court but that period must not exceed 3 months (proposed
subparagraph 179C(2)(b)). The preliminary unexplained
wealth order remains in force until the court revokes the order. If
a preliminary unexplained wealth order is revoked, the DPP must
give written notice of the revocation to the applicant for the
revocation under proposed section 179D.
An unexplained wealth order requiring a person to pay an amount
to the Commonwealth must be made (in accordance with
proposed section 179E) if the court has made a
preliminary unexplained wealth order and the court is not
satisfied that the total wealth of the person was not
derived from a Commonwealth offence, a foreign indictable offence
or a State offence that has a federal aspect.[82] If a court has made either a
preliminary unexplained wealth order or an unexplained wealth
order, the court may also make ancillary orders at the same time or
at a later time (proposed section 179F).
Division 2 outlines the calculations required
to determine unexplained wealth amounts.
Proposed section 179G outlines how an
unexplained wealth amount is to be determined. The wealth of a
person, for the purposes of this Part is:
- Property owned by the person at any time;
- Property that has been under the effective control of the
person at any time;
- Property that the person has disposed of (whether by sale, gift
or otherwise) or consumed at any time; including property owned,
effectively controlled, disposed of or consumed before the
commencement of this Part (proposed subsection
179G(1)).
The sum of the all of the values of this property
is the total wealth of a person (proposed subsection
179G(2)).
The value of the property (if disposed, consumed
or otherwise not available) is the greater of:
- The value of the property at the time it was acquired; and the
value of the property immediately before it was disposed of,
consumed or become unavailable (proposed subsection
179G(3)) .
Property is still taken to be the person s
property if it vests in the trustee of the estate of a bankrupt,
the trustee of a composition or scheme arrangement, the trustee of
a personal insolvency agreement or the trustee of a deceased person
s estate (proposed section 179H). The Explanatory
Memorandum notes that this section is necessary to prevent a person
avoid an unexplained wealth order by declaring themselves
bankrupt.[83]
If there are other forfeiture orders, pecuniary penalty orders,
or literary proceeds orders in place, the court must deduct an
amount equal to the amount in those orders when determining an
unexplained wealth amount; (proposed section
179J). Additionally, the court may increase the
unexplained wealth amount if an appeal is allowed to those orders
listed under 179J (proposed section 179K).
The court making an unexplained wealth order may make additional
orders directing the Commonwealth to pay a specified amount to a
dependant of the person (proposed section 179L).
The court must be satisfied that the order would cause hardship to
the dependant and that the specified amount would relieve that
hardship. Further, proposed subparagraph
179L(1)(c) also requires the court to be satisfied that a
dependant over the age of 18 years had no knowledge of the person s
conduct that is the subject of the unexplained wealth order. The
specified amount must not exceed the unexplained wealth amount
(proposed subsection 179L(2)).
Division 3 outlines how an unexplained wealth
order is obtained.
The DPP may apply for an unexplained wealth order and
proposed section 179N sets out the notice
requirements if the DPP has made an application for an unexplained
wealth order. The DPP cannot apply for an unexplained wealth order
against a person if there is a pre-existing application for such an
order and that has been finally determined (proposed
subsection 179P(1)). However, the court can give leave for
such an application if it is satisfied that new wealth or evidence
has been identified subsequent to the first application or it is in
the interests of justice to do so (proposed
subsection179P(2)).
Division 4 relates to the enforcement of
unexplained wealth orders.
Proposed section 179R makes it clear that an
amount under an unexplained wealth order is a civil debt due to the
Commonwealth. It can be enforced as if it were made in civil
proceedings instituted by the Commonwealth. It is taken to be a
judgment debt. If an order is made after the person s death, the
order is still enforceable and has the effect as if the person had
died on the day after the order was made.
Determining whether or not property is subject to a person s
effective control[84] is addressed in proposed
section 179S. This section outlines that the court must be
satisfied that there were reasonable grounds to suspect that the
person
- had committed a Commonwealth offence, a foreign indictable
offence or a State offence that has a federal aspect, or
- the whole or any part of the person s wealth was derived from a
Commonwealth offence, a foreign indictable offence or a State
offence that has a federal aspect (proposed subsection
179S(3)).
A restraining order may then be made in respect
of the property. The DPP must notify the person who is subject to
the unexplained wealth order and any person who may have an
interest in the property (proposed subsection
179S(4)).
If a court makes an unexplained wealth order of
an amount which the court does not have the jurisdiction to
recover, the registrar of the court must issue a certificate as
detailed in the regulations (proposed subsection
179T(1)). That certificate can then be registered in a
court that does have the jurisdiction and is enforceable as a final
judgement of the court.
Item 14 makes an insertion into
existing subsection 202(5) of the Act which relates to the
definition of a property tracking document. Any document relevant
to identifying, locating or quantifying the property of a person
(to whom there is a reasonable suspicion that the person s wealth
is in excess of their lawfully acquired wealth) or that is
necessary for the property transfer is to be defined as a property
tracking document (proposed subparagraphs
202(5)(ea) and 202(5)(eb).
Item 16 will insert
proposed section 282A which will allow a court to
direct the Official Trustee to pay an amount out of property that
is subject to a restraining order under section 20A. The section
outlines three circumstances when the court can make such a
direction.
Items 17-28 make necessary minor
amendments to existing sections in the Act to facilitate the
operation of unexplained wealth orders.
Item 29 inserts a new subsection
to section 335 to confirm that courts that have proceeds
jurisdiction for either a preliminary unexplained wealth order or
an unexplained wealth order are those of any State or Territory
with jurisdiction to deal with criminal matters on indictment.
Item 32 will insert a definition
of lawfully acquired into the Act. Notably, the funds or other
considerations used to acquire the property or wealth must
themselves have been lawfully acquired.
Items 34, 35 and 37-40 insert
new definitions relating to unexplained wealth orders in to section
338, which is the Dictionary.
Part 2 makes necessary consequential amendments
to other existing Acts, namely the Bankruptcy Act 1996 and
the Crimes Act 1914. The amendments flow from the new
provisions dealing with unexplained wealth orders.
Part 1 introduces freezing orders over account
of financial institutions that are intended to be an interim
measure in circumstances where obtaining a restraining order would
take a longer period of time and any delay would risk the movement
of the assets.
Item 3 of the Schedule will insert a
new Part 2-1 to the Act.
Item 8 specifies that the Part will apply in
relation to an account if there are reasonable grounds to suspect
that the balance of the account is proceeds of an indictable
offence, a foreign indictable offence or an indictable offence of
Commonwealth concern. The balance of the account may also be
suspected of being wholly or partly an instrument of a serious
offence.
Proposed section 15B provides that a magistrate
must order that a financial institution not allow a withdrawal from
an account with the institution if an authorised officer applies
for a freezing order and there are reasonable grounds to suspect
that the balance of the account is proceeds of
- an indictable offence
- a foreign indictable offence
- an indictable offence of Commonwealth concern, or
- is wholly or partly an instrument of a serious offence
(proposed subparagraph 15B(1)(b)).
The magistrate needs to be satisfied that unless
an order is made, there is a risk that the balance of the account
will be reduced so that a person will not be deprived of all or
some of such proceeds or such an instrument (proposed
subparagraph 15B(1)(c)).
Proposed subsection 15B(3) notes
that the reasonable grounds referred to in paragraph (1)(b) and the
satisfaction referred to in paragraph (1)(c) need not be based on a
finding as to the commission of a particular offence.
Proposed section 15C outlines
the requirements for an affidavit from an authorised officer who
seeks a freezing order. Proposed section 15D
allows the authorised officer to apply by telephone, fax or other
electronic means in an urgent case or in the case that making the
application in person would frustrate the order s effectiveness. If
an order is made by telephone (or similar means), proposed
section 15E requires the magistrate to inform the
applicant of the terms of the order, including the day and time at
which it was signed. The applicant must then complete a form of
freezing order and state the magistrate s details and order on the
form. This must be done by the second working day after the
magistrate makes the order.
If a signed form of freezing order is not
produced in evidence, the court must assume that the order was not
duly made unless the contrary is proved (proposed section
15F).
Proposed sections 15G and
15H are offence provisions with penalties of
imprisonment for 2 years or 120 penalty units[85], or both.[86] Proposed section 15G
makes it an offence for a person to make a false or misleading
statement, or omit any matter or thing, in connection with an
application for a freezing order. The omission must result in the
statement being misleading. The fault element for this offence is
intention. Proposed section 15H outlines 4
offences relating to orders made under section 15E (freezing orders
by telephone or similar).
If a person states a name of a magistrate in a
freezing order form and the name is not the name of the magistrate
who made the order, they have committed an offence under
proposed subsection 15H(1). A person will also
commit an offence (under proposed subsection
15H(2)) if they state a matter in a freezing order and
that matter departs in a material way from the order made by the
magistrate. Proposed subsection 15H(3) makes it an
offence to serve a freezing order that has not been approved by a
magistrate or that departs materially from the terms authorised by
the magistrate. A person will also commit an offence if, after
serving a freezing order on a financial institution, they give the
magistrate a varied form of that which was provided to the
financial institution.
Division 3 deals with giving
effect to freezing orders. Proposed section 15J
requires the applicant for the freezing order to give a copy of the
order to the relevant financial institution and to each person in
whose name the account is held. Proposed section
15K provides that the existence of a freezing order does
not prevent the financial institution from processing withdrawals
or payments mandated by family law or other court orders. A
financial institution will commit an offence under proposed
section 15L if it allows a withdrawal from an account
(which is subject to a freezing order) where the withdrawal
contravenes the terms of the order. This offence is punishable by 5
years imprisonment or a fine of 300 penalty units or both. A
financial institution, or an agent of a financial institution, is
protected from legal proceedings for any action taken in complying
with the order or in the mistaken belief that action was required
under a freezer order (proposed section 15M). This
is a good faith provision.
Division 4 specifies the
duration of a freezing order.
Proposed section 15N outlines
that a freezing order will come into force when a copy of the order
is given to the institution. It will remain in force until the end
of the period specified in the order, or (if before the end of that
period), a court makes a decision on an application for a
restraining order to cover the account. The freezing order must not
specify a period of more than 3 working days. Proposed
section 15P allows a magistrate to extend a freezing order
if the authorised officer applies for an extension and the
magistrate is satisfied that an application has been made to a
court for a restraining order.
Division 5 allows a magistrate
to vary the scope of a freezing order.
If the magistrate considers it necessary, a
freezing order may be varied to allow withdrawals for the
reasonable living expenses of the person or the person s
dependants. Proposed section 15Q also allows a
variation to the freezing order to permit reasonable business
expenses of the person or a specified debt incurred by the
person.
Item 7 inserts a new term,
working day , into the Dictionary (section 338).
Part 2 repeals provisions
relating to the 6-year time limit that applies to restraining order
and forfeiture orders under sections 18, 19 and 47, 49
respectively. Repealing the provisions will mean there is no time
limit to apply for an order for non-conviction based asset
recovery. Items 11-30 makes amendments to various
provisions of the Act to achieve this.
Items 30 and 31
insert a revised section 149 and clarify the
application of new section 149. Proposed section
149 will allow the court to make an order confirming a
pecuniary penalty order without reference to offences within a
six-year time period.
Part 4 contains provisions to facilitate the
disclosure of information under the Act.
Item 67 inserts proposed section
266A specifying that if a person is exercising his or her
power or performing a function under the Act, that the person may
disclose the information to an authority described under subsection
(2). A table is inserted at proposed subsection
266A(2) indicating the authority and corresponding purpose
for which disclosure may be made. If the Authority has one or more
functions under the Act, the purpose for disclosure must be to
facilitate that authority s performance of its functions. If the
Authority is that of the Commonwealth, State, Territory or foreign
country (that has a function of investigating or prosecuting crimes
against a law of the Commonwealth, State Territory of that
country), then the purpose for disclosure is to assist in the
prevention, investigation or prosecution of a crime against that
law. Further, disclosure may be made to the Australian Taxation
Office for the purpose of protecting public revenue.
Some safeguards are provided by way of limitations on use of the
information disclosed in proposed subsection
266A(3). Any existing immunity in relation to the
information will still apply in court proceedings and under the
rules of evidence.
Part 1 of Schedule 4 makes amendments to Part 2.4
of the Criminal Code Act 1995 in order to insert new
provisions that extend criminal liability to persons who jointly
commit an offence.
Item 1 inserts a reference to
section 11.2A (joint commission) section 11.3 (commission by proxy)
into subsection 11.1(7) of the Criminal Code. This is a
consequential and minor technical amendment.
Item 2 substitutes principal
offender with other person in subsection 11.2(5) in order to
provide consistent use of terminology in that provision . This
implements former Justice Kirby s view that there were serious
anomalies, disparities, inconsistencies and lack of symmetry that
have been introduced into the area of secondary liability for acts
done by others .[87]
Item 3 removes the words aiding,
abetting, counselling or procuring the commission of that offence
from subsection 11.2(6). The substituted text will be for the
purposes of determining whether a person is guilty of that offence
because of the operation of subsection (1) . The purpose of the
amendment is to ensure that the provision does not mistakenly
suggest that section 11.2 is an offence.
Item 4 is the main amendment in
this Part. It inserts the new offence of joint commission.
Proposed section 11.2A provides that a person
commits an offence if:
- a person and at least one other person enter into an agreement
to commit an offence, and either
- an offence is committed in accordance with that
agreement, or
- an offence is committed in the course of carrying out the
agreement.
A person that is convicted of a joint offence is
liable to receive the penalty prescribed for that offence.
There are a number of requirements set out in
proposed subsection 11.2A(2) that must be met for
joint commission to apply. The conduct must be the same as what was
agreed, the conduct of one or more of the parties must make up a
physical element of the offence, the result of the conduct must
arise from the conduct engaged in and where an element of the joint
offence consists of a circumstance, the conduct engaged in occurs
in that circumstance. Note that 11.2A(3) is an alternative to
11.2A(2).
The Explanatory Memorandum notes that the
drafting of the offence provisions is consistent with the common
law formulation of joint criminal enterprise found in McAuliffe
v The Queen [1995] HCA 37, confirmed in Clayton v R
[2006] HCA 58.[88]
This includes the definition of agreement which is intended to
include express agreements and implied agreements. The inclusion of
implied agreement is noteworthy because it can broaden the conduct
that can be captured under joint commission and brings a level of
subjectivity that is particularly burdensome for the defence to
disprove. Again, as raised under Key Issues , these provisions are
worthy of more considered debate.
Schedule 4, Part 2 Amendments to the Telecommunications
(Interception and Access) Act 1979
The amendments in Part 2 of Schedule 4 of the
Bill are intended to capture organised crime association and
facilitation offences. The provisions will make telecommunications
interception available for the investigation of offences relating
to an individual s involvement in serious and organised crime.
Item 14 of Schedule 4 inserts a
definition of to associate into the Telecommunications
(Interception and Access) Act.
To associate with a criminal organisation or a
member of such an organisation, includes:
(a) be in the company of the
organisation or member; and
(b) communicate with the organisation
or member by any means (including by post, fax, telephone, or by
email or other electronic means).
Item 15 will insert a definition of criminal
organisation into the Act. The term criminal organisation means an
organisation that is
(a) a declared organisation within the meaning
of
(i)
the Crimes (Criminal Organisations Control) Act 2009 of
New South Wales; or
(ii) the Serious and Organised Crime (Control) Act
2008 of South Australia; or
(b) an organisation of a kind specified by or under,
or described or mentioned in, a prescribed provision of a law of a
State or Territory.
Item 16 will insert a definition of member of a
criminal organisation. Then, at the end of section 5D of the Act,
item 17 will amend the definition of serious
offence to insert offences relating to an individual s involvement
in serious and organised crime. As summarised by the Explanatory
Memorandum, the conduct targeted includes:
- associating with a criminal organisation, or a member of a
criminal organisation;
- contributing to the activities of a criminal organisation;
- aiding, abetting, counselling or procuring the commission of a
prescribed offence for a criminal organisation;
- being, by act or omission, in any way, directly or indirectly,
knowingly concerned in, or party to, the commission of a prescribed
offence for a criminal organisation; or
- conspiring to commit a prescribed offence for a criminal
organisation.[89]
This Bill appears to be the first tranche of a number of changes
to the Commonwealth criminal law framework and is ambitious,
controversial and significant to the future of Commonwealth
criminal law. The enhancement of police powers (controlled
operations, witness identity, assumed identities) is unlikely to
receive much attention in debate. However, the unexplained wealth
provisions and the joint commission offence demand carefully
considered debate and Parliamentarians are urged to have regard to
the Senate Committee s report on the Bill, which is due on 17
September. While it is important to be tough on serious and
organised crime, any legislation introduced to combat this issue
must be carefully considered so as to both protect the public and
deter criminal activity.
Monica Biddington
16 September 2009
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted
by the Copyright Act 1968, no person may reproduce or transmit any
part of this work by any process without the prior written consent
of the Parliamentary Librarian. This requirement does not apply to
members of the Parliament of Australia acting in the course of
their official duties.
This work has been prepared to support the work of the Australian
Parliament using information available at the time of production.
The views expressed do not reflect an official position of the
Parliamentary Library, nor do they constitute professional legal
opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au. Any
concerns or complaints should be directed to the Parliamentary
Librarian. Parliamentary Library staff are available to discuss the
contents of publications with Senators and Members and their staff.
To access this service, clients may contact the author or the
Library’s Central Entry Point for referral.
Back to top