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
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