Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth)
Crimes Legislation Amendment (Serious and Organised Crime) Act 2010
Act No. 3 of 2010 as amended
This compilation was prepared on 13 January 2012
taking into account amendments up to Act No. 174 of 2011
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
1............ Short title [see Note 1]........................................................................ 1
2............ Commencement................................................................................... 1
3............ Schedule(s)......................................................................................... 2
Schedule 1—Unexplained wealth 3
Part 1—Main amendments 3
Proceeds of Crime Act 2002 3
Part 2—Related amendments 26
Bankruptcy Act 1966 26
Crimes Act 1914 26
Schedule 2—Other amendments relating to proceeds of crime 27
Part 1—Freezing orders 27
Division 1—Main amendments 27
Proceeds of Crime Act 2002 27
Division 2—Related amendments 38
Crimes Act 1914 38
Family Law Act 1975 39
Part 2—Removal of 6‑year time limit 40
Proceeds of Crime Act 2002 40
Part 3—Confiscation scheme and instruments of serious offences 44
Proceeds of Crime Act 2002 44
Part 4—Disclosure of information 48
Proceeds of Crime Act 2002 48
Part 5—Legal aid costs 51
Proceeds of Crime Act 2002 51
Part 6—Technical amendments 53
Proceeds of Crime Act 2002 53
Part 7—Other amendments 56
Proceeds of Crime Act 2002 56
Schedule 3—Amendments relating to controlled operations, assumed identities and witness identity protection 57
Part 1—Main amendments 57
Crimes Act 1914 57
Part 2—Provisions relating to pre‑commencement authorisations under State controlled operations law 158
Part 3—General application and transitional provisions 162
Part 4—Consequential amendment 164
Customs Act 1901 164
Schedule 4—Other amendments 165
Part 1—Joint commission 165
Criminal Code Act 1995 165
Part 2—Amendment of the Telecommunications (Interception and Access) Act 1979 169
Division 1—Offences involving criminal organisations 169
Telecommunications (Interception and Access) Act 1979 169
Division 2—Use of information for purposes of organised crime control laws 171
Telecommunications (Interception and Access) Act 1979 171
Part 3—Regulations 173
Notes 175
An Act to amend various Acts relating to the enforcement of the criminal law, and for other purposes
1 Short title [see Note 1]
This Act may be cited as the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information | ||
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | 19 February 2010 |
| 2. Schedule 1 | The day on which this Act receives the Royal Assent. | 19 February 2010 |
| 3. Schedule 2, Parts 1 to 4 | The day after this Act receives the Royal Assent. | 20 February 2010 |
| 4. Schedule 2, Part 5 | On the day after the end of the period of 3 months beginning on the day on which this Act receives the Royal Assent. | 19 May 2010 |
| 5. Schedule 2, Parts 6 and 7 | The day after this Act receives the Royal Assent. | 20 February 2010 |
| 6. Schedule 3 | The day on which this Act receives the Royal Assent. | 19 February 2010 |
| 7. Schedule 4, Part 1 | The day after this Act receives the Royal Assent. | 20 February 2010 |
| 8. Schedule 4, Parts 2 and 3 | The day on which this Act receives the Royal Assent. | 19 February 2010 |
Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Unexplained wealth
Part 1—Main amendments
Proceeds of Crime Act 2002
1 After paragraph 5(b)
Insert:
(ba) to deprive persons of *unexplained wealth amounts that the person cannot satisfy a court were not derived from certain offences; and
2 Paragraph 5(d)
Omit “and literary proceeds”, substitute “, literary proceeds and unexplained wealth amounts”.
3 Paragraph 5(e)
Omit “and literary proceeds”, substitute “, literary proceeds and unexplained wealth amounts”.
4 At the end of section 7
Add:
; and (f) unexplained wealth orders requiring payment of unexplained wealth amounts (see Part 2‑6).
5 After section 20
Insert:
20A Restraining orders—unexplained wealth
When a restraining order must be made
(1) A court with *proceeds jurisdiction may order that:
(a) property must not be disposed of or otherwise dealt with by any person; or
(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c) the *DPP applies for the order; and
(d) 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
(e) any affidavit requirements in subsection (3) for the application have been met; and
(f) 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
(g) there are reasonable grounds to suspect either or both of the following:
(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;
(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.
Property that a restraining order may cover
(2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that 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 other person’s identity is known) that is subject to the *effective control of the suspect.
Affidavit requirements
(3) The application for the order must be supported by an affidavit of an *authorised officer stating:
(a) that the authorised officer suspects that the *total wealth of the *suspect exceeds the value of the suspect’s *wealth that was *lawfully acquired; 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; and
(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.
The affidavit must include the grounds on which the authorised officer holds those suspicions.
Legal expenses
(3A) Without limiting the manner and circumstances that may be specified in an order under paragraph (1)(b), the court may order that specified property may be disposed of or otherwise dealt with for the purposes of meeting a person’s reasonable legal expenses arising from an application under this Act.
(3B) The court may make an order under subsection (3A) despite anything in section 24.
(3C) The court may require that a costs assessor certify that legal expenses have been properly incurred before permitting the payment of expenses from the disposal of any property covered by an order under subsection (3A) and may make any further or ancillary orders it considers appropriate.
Refusal to make a restraining order
(4) Despite subsection (1), the court may refuse to make a *restraining order if the court is satisfied that it is not in the public interest to make the order.
Note: A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.
(4A) If the court refuses to make a *restraining order under subsection (1), it may make any order as to costs it considers appropriate, including costs on an indemnity basis.
Risk of property being disposed of etc.
(5) The court may make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
Later acquisitions of property
(6) The court may specify that a *restraining order covers property that is acquired by the *suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.
6 Subsection 29(1) (note)
Omit “31A”, substitute “32”.
Note: The heading to section 29 is altered by omitting “a restraining order” and substituting “certain restraining orders”.
7 After section 29
Insert:
29A Court may exclude property from a restraining order made under section 20A
The court to which an application for a *restraining order under section 20A was made may, when the order is made or at a later time, exclude specified property from the order if:
(a) an application is made under section 30 or 31; and
(b) the court is satisfied that:
(i) the property is property of a person other than the *suspect; and
(ii) the property is not subject to the *effective control of the suspect.
Note: Section 32 may prevent the court from hearing the application until the DPP has had a reasonable opportunity to conduct an examination of the applicant.
8 Paragraph 35(1)(a)
After “29”, insert “or 29A”.
9 Subsection 39(1) (note)
After “Note”, insert “1”.
10 At the end of subsection 39(1) (after the note)
Add:
Note 2: If there is an unexplained wealth order that relates to a restraining order under section 20A, the court may also order the Official Trustee to pay an amount equal to the unexplained wealth amount out of property covered by the restraining order: see section 282A.
11 At the end of section 45
Add:
(7) To avoid doubt, this section does not apply to a *restraining order made under section 20A.
Note: The heading to section 45 is altered by inserting “certain” before “restraining”.
12 At the end of Division 6 of Part 2‑1
Add:
45A Cessation of restraining orders relating to unexplained wealth
(1) A *restraining order made under section 20A ceases to be in force if, within 28 days after the order was made, no application for an *unexplained wealth order has been made in relation to the *suspect to whom the restraining order relates.
(2) A *restraining order made under section 20A ceases to be in force if:
(a) an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and
(b) the application is made within 28 days after the making of the restraining order; and
(c) the court refuses to make the unexplained wealth order; and
(d) one of the following applies:
(i) the time for an appeal against the refusal has expired without an appeal being lodged;
(ii) an appeal against the refusal has lapsed;
(iii) an appeal against the refusal has been dismissed and finally disposed of.
(3) A *restraining order made under section 20A ceases to be in force if:
(a) an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and
(b) the application is made within 28 days after the making of the restraining order; and
(c) the court makes the unexplained wealth order; and
(d) either:
(i) the unexplained wealth order is complied with; or
(ii) an appeal against the unexplained wealth order has been upheld and finally disposed of.
(4) If a *restraining order ceases under subsection (1) or (2), the court may, on application by a person with an *interest in the property covered by the restraining order, make any order as to costs it considers appropriate, including costs on an indemnity basis.
13 At the end of Chapter 2
Add:
Part 2‑6—Unexplained wealth orders
179A Simplified outline of this Part
This Part provides for the making of certain orders relating to unexplained wealth.
A preliminary unexplained wealth order requires a person to attend court for the purpose of enabling the court to decide whether to make an unexplained wealth order against the person.
An unexplained wealth order is an order requiring the person to pay an amount equal to so much of the person’s total wealth as the person cannot satisfy the court is not derived from certain offences.
Division 1—Making unexplained wealth orders
179B Making an order requiring a person to appear
(1) A court with *proceeds jurisdiction may make an order (a preliminary unexplained wealth order) requiring a person to appear before the court for the purpose of enabling the court to decide whether or not to make an *unexplained wealth order in relation to the person if:
(a) the *DPP applies for an unexplained wealth order in relation to the person; and
(b) 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; and
(c) any affidavit requirements in subsection (2) for the application have been met.
Affidavit requirements
(2) An application for an *unexplained wealth order in relation to a person must be supported by an affidavit of an *authorised officer stating:
(a) the identity of the person; and
(b) that the authorised officer suspects that the person’s *total wealth exceeds the value of the person’s *wealth that was *lawfully acquired; and
(c) the following:
(i) the property the authorised officer knows or reasonably suspects was lawfully acquired by the person;
(ii) the property the authorised officer knows or reasonably suspects is owned by the person or is under the *effective control of the person.
The affidavit must include the grounds on which the authorised officer holds the suspicions referred to in paragraphs (b) and (c).
(3) The court must make the order under subsection (1) without notice having been given to any person if the *DPP requests the court to do so.
179C Application to revoke a preliminary unexplained wealth order
(1) If a court makes a *preliminary unexplained wealth order requiring a person to appear before the court, the person may apply to the court to revoke the order.
(2) The application must be made:
(a) within 28 days after the person is notified of the *preliminary unexplained wealth order; or
(b) if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation—within such longer period, not exceeding 3 months, as the court allows.
(4) However, the *preliminary unexplained wealth order remains in force until the court revokes the order.
(5) The court may revoke the *preliminary unexplained wealth order on application under subsection (1) if satisfied that:
(a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or
(b) it is in the public interest to do so; or
(c) it is otherwise in the interests of justice to do so.
179CA Notice and procedure on application to revoke preliminary unexplained wealth order
(1) This section applies if a person applies under section 179C for revocation of a *preliminary unexplained wealth order.
(2) The applicant may appear and adduce material at the hearing of the application.
(3) The applicant must give the *DPP:
(a) written notice of the application; and
(b) a copy of any affidavit supporting the application.
(4) The *DPP may appear and adduce additional material at the hearing of the application.
(5) The *DPP must give the applicant a copy of any affidavit it proposes to rely on to contest the application.
(6) The notice and copies of affidavits must be given under subsections (3) and (5) within a reasonable time before the hearing of the application.
179D Notice of revocation of a preliminary unexplained wealth order
If a *preliminary unexplained wealth order is revoked under section 179C, the *DPP must give written notice of the revocation to the applicant for the revocation.
179E Making an unexplained wealth order
(1) A court with *proceeds jurisdiction may make an order (an unexplained wealth order) requiring a person to pay an amount to the Commonwealth if:
(a) the court has made a *preliminary unexplained wealth order in relation to the person; and
(b) the court is not satisfied that the whole or any part of the person’s *wealth was not derived from one or more of the following:
(i) an offence against a law of the Commonwealth;
(ii) a *foreign indictable offence;
(iii) a *State offence that has a federal aspect.
(2) The court must specify in the order that the person is liable to pay to the Commonwealth an amount (the person’s unexplained wealth amount) equal to the amount that, in the opinion of the court, is the difference between:
(a) the person’s *total wealth; and
(b) the sum of the values of the property that the court is satisfied was not derived from one or more of the following:
(i) an offence against a law of the Commonwealth;
(ii) a *foreign indictable offence;
(iii) a *State offence that has a federal aspect;
reduced by any amount deducted under section 179J (reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc.).
(3) In proceedings under this section, the burden of proving that a person’s *wealth is not derived from one or more of the offences referred to in paragraph (1)(b) lies on the person.
(4) To avoid doubt, when considering whether to make an order under subsection (1), the court may have regard to information not included in the application.
(5) To avoid doubt, subsection (3) has effect despite section 317.
(6) Despite subsection (1), the court may refuse to make an order under that subsection if the court is satisfied that it is not in the public interest to make the order.
179EA Refusal to make an order for failure to give undertaking
(1) The court may refuse to make a *preliminary unexplained wealth order or an *unexplained wealth order if the Commonwealth refuses or fails to give the court an appropriate undertaking with respect to the payment of damages or costs, or both, for the making and operation of the order.
(2) The *DPP may give such an undertaking on behalf of the Commonwealth.
179EB Costs
If the court refuses to make a *preliminary unexplained wealth order or an *unexplained wealth order, it may make any order as to costs it considers appropriate, including costs on an indemnity basis.
179F Ancillary orders
(1) A court that makes an *unexplained wealth order, or any other court that could have made the unexplained wealth order, may make orders ancillary to the order, either when the order is made or at a later time.
(2) A court that makes a *preliminary unexplained wealth order, or any other court that could have made the order, may make orders ancillary to the order, either when the order is made or at a later time.
Division 2—Unexplained wealth amounts
179G Determining unexplained wealth amounts
Meaning of wealth
(1) The property of a person that, taken together, constitutes the wealth of a person for the purposes of this Part is:
(a) property owned by the person at any time;
(b) property that has been under the *effective control of the person at any time;
(c) 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.
Meaning of total wealth
(2) The total wealth of a person is the sum of all of the values of the property that constitutes the person’s wealth.
Value of property
(3) The value of any property that has been disposed of or consumed, or that is for any other reason no longer available, is the greater of:
(a) the value of the property at the time it was acquired; and
(b) the value of the property immediately before it was disposed of, consumed or stopped being available.
(4) The value of any other property is the greater of:
(a) the value of the property at the time it was acquired; and
(b) the value of the property on the day that the application for the *unexplained wealth order was made.
179H Effect of property vesting in an insolvency trustee
In assessing the value of property of a person, property is taken to continue to be the *person’s property if it vests in any of the following:
(a) in relation to a bankruptcy—the trustee of the estate of the bankrupt;
(b) in relation to a composition or scheme of arrangement under Division 6 of Part IV of the Bankruptcy Act 1966—the trustee of the composition or scheme of arrangement;
(c) in relation to a personal insolvency agreement under Part X of the Bankruptcy Act 1966—the trustee of the agreement;
(d) in relation to the estate of a deceased person in respect of which an order has been made under Part XI of the Bankruptcy Act 1966—the trustee of the estate.
179J Reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc.
In determining the *unexplained wealth amount specified in an *unexplained wealth order in relation to a person, the court must deduct an amount equal to the following:
(a) the value, at the time of making the order, of any property of the person forfeited under:
(i) a *forfeiture order; or
(ii) an *interstate forfeiture order; or
(iii) a *foreign forfeiture order;
(b) the sum of any amounts payable by the person under:
(i) a *pecuniary penalty order; or
(ii) a *literary proceeds order; or
(iii) an order under section 243B of the Customs Act 1901; or
(iv) an *interstate pecuniary penalty order; or
(v) a *foreign pecuniary penalty order.
179K Varying unexplained wealth orders to increase amounts
(1) The court may, on the application of the *DPP, vary an *unexplained wealth order against a person by increasing the *unexplained wealth amount if subsection (2) or (3) applies. The amount of the increase is as specified in subsection (2) or (3).
(2) The *unexplained wealth amount may be increased if:
(a) the value of property of the person forfeited under a *forfeiture order, an *interstate forfeiture order or a *foreign forfeiture order was deducted from the unexplained wealth amount under paragraph 179J(a); and
(b) an appeal against the forfeiture, or against the order, is allowed.
The amount of the increase is equal to the value of the property.
(3) The *unexplained wealth amount may be increased if:
(a) an amount payable under a *pecuniary penalty order, a *literary proceeds order, an order under section 243B of the Customs Act 1901, an *interstate pecuniary penalty order or a *foreign pecuniary penalty order was deducted from the *unexplained wealth amount under paragraph 179J(b); and
(b) an appeal against the amount payable, or against the order, is allowed.
The amount of the increase is equal to the amount that was payable.
(4) The *DPP’s application may deal with more than one increase to the same *unexplained wealth amount.
179L Relieving certain dependants from hardship
(1) The court making an *unexplained wealth order in relation to a person must make another order directing the Commonwealth, once the unexplained wealth order is satisfied, to pay a specified amount to a *dependant of the person if the court is satisfied that:
(a) the unexplained wealth order would cause hardship to the dependant; and
(b) the specified amount would relieve that hardship; and
(c) if the dependant is aged at least 18 years—the dependant had no knowledge of the person’s conduct that is the subject of the unexplained wealth order.
(2) The specified amount must not exceed the person’s *unexplained wealth amount.
(3) An order under this section may relate to more than one of the person’s *dependants.
Division 3—How unexplained wealth orders are obtained
179M DPP may apply for an unexplained wealth order
The *DPP may apply for an *unexplained wealth order.
179N Notice of application
(1) This section sets out the notice requirements if the *DPP has made an application for an *unexplained wealth order.
(2) If a court with *proceeds jurisdiction makes a *preliminary unexplained wealth order in relation to the person, the *DPP must, within 7 days of the making of the order:
(a) give written notice of the order to the person who would be subject to the *unexplained wealth order if it were made; and
(b) provide to the person a copy of the application for the unexplained wealth order, and the affidavit referred to in subsection 179B(2).
(3) The *DPP must also give a copy of any other affidavit supporting the application to the person who would be subject to the *unexplained wealth order if it were made.
(4) The copies must be given under subsection (3) within a reasonable time before the hearing in relation to whether the order is to be made.
179P Additional application for an unexplained wealth order
(1) The *DPP cannot, unless the court gives leave, apply for an *unexplained wealth order against a person if:
(a) an application has previously been made for an unexplained wealth order in relation to the person; and
(b) the application has been finally determined on the merits.
(2) The court must not give leave unless it is satisfied that:
(a) the *wealth to which the new application relates was identified only after the first application was determined; or
(b) necessary evidence became available only after the first application was determined; or
(c) it is in the interests of justice to give the leave.
179Q Procedure on application and other notice requirements
(1) The person who would be subject to an *unexplained wealth order if it were made may appear and adduce evidence at the hearing in relation to whether the order is to be made.
(2) The person must give the *DPP written notice of any grounds on which he or she proposes to contest the making of the order.
(3) The *DPP may appear and adduce evidence at the hearing in relation to whether an *unexplained wealth order is to be made.
Division 4—Enforcement of unexplained wealth orders
179R Enforcement of an unexplained wealth order
(1) An amount payable by a person to the Commonwealth under an *unexplained wealth order is a civil debt due by the person to the Commonwealth.
(2) An *unexplained wealth order against a person may be enforced as if it were an order made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.
(3) The debt arising from the order is taken to be a judgment debt.
(4) If an *unexplained wealth order is made against a person after the person’s death, this section has effect as if the person had died on the day after the order was made.
179S Property subject to a person’s effective control
(1) If:
(a) a person is subject to an *unexplained wealth order; and
(b) the *DPP applies to the court for an order under this section; and
(c) the court is satisfied that particular property is subject to the *effective control of the person;
the court may make an order declaring that the whole, or a specified part, of that property is available to satisfy the unexplained wealth order.
(2) The order under subsection (1) may be enforced against the property as if the property were the *person’s property.
(3) A *restraining order may be made in respect of the property as if:
(a) the property were the *person’s property; and
(b) there were reasonable grounds to suspect that:
(i) the person had committed an offence against a law of the Commonwealth, a *foreign indictable offence or a *State offence that has a federal aspect;
(ii) 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.
(4) If the *DPP applies for an order under subsection (1) relating to particular property, the DPP must give written notice of the application to:
(a) the person who is subject to the *unexplained wealth order; and
(b) any person whom the DPP has reason to believe may have an *interest in the property.
(5) The person who is subject to the *unexplained wealth order, and any person who claims an *interest in the property, may appear and adduce evidence at the hearing of the application.
179SA Legal expenses
(1) If the court considers that it is appropriate to do so, it may order that the whole, or a specified part, of specified property covered by an order under subsection 179S(1) is not available to satisfy the *unexplained wealth order and may instead be disposed of or otherwise dealt with for the purposes of meeting a person’s reasonable legal expenses arising from an application under this Act.
(2) The court may require that a costs assessor certify that legal expenses have been properly incurred before permitting the payment of expenses from the disposal of any property covered by an order under subsection (1) and may make any further or ancillary orders it considers appropriate.
179T Amounts exceeding the court’s jurisdiction
(1) If:
(a) a court makes an *unexplained wealth order of a particular amount; and
(b) the court does not have jurisdiction with respect to the recovery of debts of an amount equal to that amount;
the registrar of the court must issue a certificate containing the particulars specified in the regulations.
(2) The certificate may be registered, in accordance with the regulations, in a court having jurisdiction with respect to the recovery of debts of an amount equal to the amount of the relevant order.
(3) Upon registration in a court, the certificate is enforceable in all respects as a final judgment of the court in favour of the Commonwealth.
Division 5—Oversight
179U Parliamentary supervision
(1) The operation of this Part and section 20A is subject to the oversight of the Parliamentary Joint Committee on the Australian Crime Commission (the Committee).
(2) The Committee may require the Australian Crime Commission, the Australian Federal Police, the *DPP or any other federal agency or authority that is the recipient of any material disclosed as the result of the operation of this Part to appear before it from time to time to give evidence.
14 After paragraph 202(5)(e)
Insert:
(ea) a document relevant to identifying, locating or quantifying the property of a person, if it is reasonable to suspect that the total value of the person’s *wealth exceeds the value of the person’s wealth that was *lawfully acquired;
(eb) a document relevant to identifying or locating any document necessary for the transfer of property of such a person;
15 Paragraph 202(5)(f)
Omit “or (e)”, substitute “(e), (ea) or (eb)”.
16 After section 282
Insert:
282A Direction by a court to the Official Trustee in relation to unexplained wealth orders
(1) A court may, if subsection (2), (3) or (4) applies, direct the *Official Trustee to pay the Commonwealth, out of property that is subject to a *restraining order under section 20A, an amount equal to the *unexplained wealth amount made under an *unexplained wealth order in relation to a person.
(2) The court that makes the *unexplained wealth order may include such a direction in the order if the *restraining order:
(a) has already been made against the person; and
(b) relates to property that constitutes part of the person’s *total wealth.
(3) The court that makes the *restraining order may include such a direction in the order if:
(a) the *unexplained wealth order has been made against the person; and
(b) the restraining order is subsequently made:
(i) against the person under section 20A; or
(ii) against property of another person in relation to which an order is in force under section 179S in relation to the unexplained wealth order.
(4) The court that made the *unexplained wealth order or the *restraining order may, on application by the *DPP, make the direction if:
(a) the unexplained wealth order has been made against the person; and
(b) the restraining order has been made:
(i) against the person under section 20A; or
(ii) against property of another person in relation to which an order is in force under section 179S in relation to the unexplained wealth order.
Note: The heading to section 282 is altered by adding at the end “in relation to certain restraining orders”.
17 Subsections 283(1) and 284(1)
After “282”, insert “or 282A”.
18 Subsection 284(2)
Omit “or *literary proceeds amount”, substitute “, *literary proceeds amount or *unexplained wealth amount”.
19 Paragraph 284(2)(a)
Omit “or literary proceeds amount”, substitute “, literary proceeds amount or unexplained wealth amount”.
20 Subsection 285(1)
After “282”, insert “or 282A”.
21 Subsection 285(2)(a)
Omit “or *literary proceeds order”, substitute “, *literary proceeds order or *unexplained wealth order”.
22 Subsection 285(2)(b)
Omit “or literary proceeds order”, substitute “, literary proceeds order or unexplained wealth order”.
23 At the end of section 286
Add:
(3) If the *Official Trustee credits, under this Division, money to the *Confiscated Assets Account as required by section 296 in satisfaction of a person’s liability under an *unexplained wealth order, the person’s liability under the unexplained wealth order is, to the extent of the credit, discharged.
24 After paragraph 296(3)(f)
Insert:
(fa) the amount referred to in subsection 179R(1);
25 Paragraph 322(1)(c)
Omit all the words from and including “or 168” to and including “proceeds”, substitute “, 168 or 179S to satisfy a *pecuniary penalty order, a *literary proceeds order or an *unexplained wealth”.
26 Subsection 322(1)
Omit “or 168” (second occurring), substitute “, 168 or 179S”.
27 After subsection 322(4)
Insert:
(4A) Despite subsections (2) and (3), in the case of an *unexplained wealth order, or an order under section 179S that relates to an unexplained wealth order, the person may appeal against the targeted order in the same manner as if:
(a) the person had been convicted of one of the following:
(i) an offence against a law of the Commonwealth;
(ii) a *foreign indictable offence;
(iii) a *State offence that has a federal aspect; and
(b) the targeted order were, or were part of, the sentence imposed on the person in respect of the offence.
28 Subsection 335(1)
After “order” (first occurring), insert “, other than a *preliminary unexplained wealth order or an *unexplained wealth order,”.
29 At the end of section 335
Add:
Preliminary unexplained wealth orders and unexplained wealth orders
(7) The courts that have proceeds jurisdiction for 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.
30 Section 336
Omit “or *literary proceeds”, substitute “, *literary proceeds or *wealth”.
31 Section 336
Omit “or literary proceeds”, substitute “, literary proceeds or wealth”.
32 After section 336
Insert:
336A Meaning of property or wealth being lawfully acquired
For the purposes of this Act, property or *wealth is lawfully acquired only if:
(a) the property or wealth was lawfully acquired; and
(b) the consideration given for the property or wealth was lawfully acquired.
33 Section 338 (definition of confiscation order)
Omit “or a *literary proceeds order”, substitute “, a *literary proceeds order or an *unexplained wealth order”.
34 Section 338
Insert:
lawfully acquired has a meaning affected by section 336A.
35 Section 338
Insert:
preliminary unexplained wealth order, in relation to a person, means an order under section 179B requiring the person to appear before a court.
36 Section 338 (definition of restraining order)
Omit “or 20”, substitute “20 or 20A”.
37 Section 338
Insert:
State offence that has a federal aspect has the same meaning as in the Crimes Act 1914.
Note: Section 3AA of the Crimes Act 1914 sets out when a State offence has a federal aspect.
38 Section 338 (definition of suspect)
Insert:
suspect means:
(a) in relation to a *restraining order (other than a restraining order made under section 20A) or a *confiscation order (other than an *unexplained wealth order)—the person who:
(i) has been convicted of; or
(ii) has been *charged with, or is proposed to be charged with; or
(iii) if the order is a restraining order—is suspected of having committed; or
(iv) if the order is a confiscation order—committed;
the offence or offences to which the order relates; or
(b) in relation to a restraining order made under section 20A or an unexplained wealth order—the person whose *total wealth is suspected of exceeding the value of *wealth that was *lawfully acquired.
39 Section 338
Insert:
total wealth, of a person, has the meaning given by subsection 179G(2).
40 Section 338
Insert:
unexplained wealth amount, of a person, has the meaning given by subsection 179E(2).
41 Section 338
Insert:
unexplained wealth order means an order made under subsection 179E(1) that is in force.
42 Section 338
Insert:
wealth, of a person, has the meaning given by subsection 179G(1).
Part 2—Related amendments
Bankruptcy Act 1966
43 Subsection 5(1) (at the end of the definition of pecuniary penalty order)
Add:
; or (c) an unexplained wealth order within the meaning of the Proceeds of Crime Act 2002.
Crimes Act 1914
44 Subparagraph 3(2)(a)(ii)
Omit “or a literary proceeds order”, substitute “, a literary proceeds order or an unexplained wealth order”.
Schedule 2—Other amendments relating to proceeds of crime
Part 1—Freezing orders
Division 1—Main amendments
Proceeds of Crime Act 2002
1 Section 7
Omit “5”, substitute “a number of”.
2 Before paragraph 7(a)
Insert:
(aa) freezing orders limiting withdrawals from accounts with financial institutions before courts decide applications for restraining orders to cover the accounts (see Part 2‑1A); and
3 Before Part 2‑1
Insert:
Part 2‑1A—Freezing orders
15A Simplified outline of this Part
A freezing order can be made against an account with a financial institution if:
(a) there are grounds to suspect the account balance reflects proceeds or an instrument of certain offences; and
(b) a magistrate is satisfied that, unless the 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 the proceeds or instrument.
Division 1—Making freezing orders
15B Making freezing orders
(1) A magistrate must order that a *financial institution not allow a withdrawal from an *account with the institution, except in the manner and circumstances specified in the order, if:
(a) an *authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338 applies for the order in accordance with Division 2; and
(b) there are reasonable grounds to suspect that the balance of the account:
(i) is *proceeds of an *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or
(ii) is wholly or partly an *instrument of a *serious offence; and
(c) the magistrate is satisfied that, unless an order is made under this section, 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.
Note 1: Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain AFP members, certain members of the Australian Commission for Law Enforcement Integrity, certain members of the Australian Crime Commission and certain officers of Customs.
Note 2: The balance of the account may be proceeds of an offence even though the balance is only partly derived from the offence: see section 329.
(2) An order made under subsection (1) covers the balance of the *account from time to time.
Order need not be based on commission of particular offence
(3) 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.
Division 2—How freezing orders are obtained
15C Affidavit supporting application made in person
If an *authorised officer applies in person to a magistrate for a *freezing order relating to an *account with a *financial institution, the application must be supported by an affidavit of an authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338:
(a) setting out sufficient information to identify the account (for example, the account number); and
(b) identifying the financial institution; and
(c) setting out the grounds to suspect that the balance of the account:
(i) is *proceeds of an *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern; or
(ii) is wholly or partly an *instrument of a *serious offence; and
(d) setting out the grounds on which a person could be satisfied that, unless the 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 of such an instrument.
Note: Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain AFP members, certain members of the Australian Commission for Law Enforcement Integrity, certain members of the Australian Crime Commission and certain officers of Customs.
15D Applying for freezing orders by telephone or other electronic means
(1) An *authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338 may apply to a magistrate for a *freezing order by telephone, fax or other electronic means:
(a) in an urgent case; or
(b) if the delay that would occur if an application were made in person would frustrate the effectiveness of the order.
Note: Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain AFP members, certain members of the Australian Commission for Law Enforcement Integrity, certain members of the Australian Crime Commission and certain officers of Customs.
(2) An application under subsection (1):
(a) must include all information that would be required in an ordinary application for a *freezing order and supporting affidavit; and
(b) if necessary, may be made before the affidavit is sworn.
(3) The magistrate may require:
(a) communication by voice to the extent that it is practicable in the circumstances; and
(b) any further information.
15E Making order by telephone etc.
(1) The magistrate may complete and sign the same form of *freezing order that would be made under section 15B if satisfied that:
(a) a freezing order should be issued urgently; or
(b) the delay that would occur if an application were made in person would frustrate the effectiveness of the order.
(2) If the magistrate makes the *freezing order, he or she must inform the applicant, by telephone, fax or other electronic means, of the terms of the order and the day on which and the time at which it was signed.
(3) The applicant must then:
(a) complete a form of *freezing order in terms substantially corresponding to those given by the magistrate; and
(b) state on the form:
(i) the name of the magistrate; and
(ii) the day on which the order was signed; and
(iii) the time at which the order was signed.
(4) The applicant must give the magistrate the form of *freezing order completed by the applicant by the end of:
(a) the second *working day after the magistrate makes the order; or
(b) the first working day after the magistrate makes the order, if it is served on the *financial institution concerned before the first working day after the magistrate makes the order.
(5) If, before the magistrate made the *freezing order, the applicant did not give the magistrate an affidavit supporting the application and meeting the description in section 15C, the applicant must do so by the time by which the applicant must give the magistrate the form of freezing order completed by the applicant.
(6) If the applicant does not comply with subsection (5), the *freezing order is taken never to have had effect.
(7) The magistrate must attach the form of *freezing order completed by the magistrate to the documents provided under subsection (4) and (if relevant) subsection (5).
15F Unsigned freezing orders in court proceedings
If:
(a) it is material, in any proceedings, for a court to be satisfied that a *freezing order applied for under section 15D was duly made; and
(b) the form of freezing order signed by the magistrate is not produced in evidence;
the court must assume that the order was not duly made unless the contrary is proved.
15G Offence for making false statements in applications
A person commits an offence if:
(a) the person makes a statement (whether orally, in a document or in any other way); and
(b) the statement:
(i) is false or misleading; or
(ii) omits any matter or thing without which the statement is misleading; and
(c) the statement is made in, or in connection with, an application for a *freezing order.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
15H Offences relating to orders made under section 15E
Offence for stating incorrect names in telephone orders
(1) A person commits an offence if:
(a) the person states a name of a magistrate in a document; and
(b) the document purports to be a form of *freezing order under section 15E; and
(c) the name is not the name of the magistrate who made the order.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Offence for unauthorised form of order
(2) A person commits an offence if:
(a) the person states a matter in a form of *freezing order under section 15E; and
(b) the matter departs in a material particular from the order made by the magistrate.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Offence for service of unauthorised form of order
(3) A person commits an offence if:
(a) the person presents a document to a person; and
(b) the document purports to be a form of *freezing order under section 15E; and
(c) the document:
(i) has not been approved by a magistrate under that section; or
(ii) departs in a material particular from the terms given by the magistrate under that section.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Offence for giving form of order different from that served
(4) A person commits an offence if:
(a) the person gives a magistrate a form of *freezing order under section 15E relating to a *financial institution; and
(b) the person does so after presenting to the financial institution a document purporting to be a form of the freezing order; and
(c) the form given to the magistrate is not in the same form as the document presented to the financial institution.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Division 3—Giving effect to freezing orders
15J Service of freezing order etc. on financial institution and account‑holder
(1) If a magistrate makes a *freezing order relating to an *account with a *financial institution, the applicant for the order must cause the things described in subsection (2) to be given to:
(a) the financial institution; and
(b) each person in whose name the account is held.
(2) The things are as follows:
(a) a copy of the order (or of a form of the order under section 15E);
(b) a written statement of the name and contact details of the *enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the applicant.
Note: If the copy of the order is given to the financial institution after the end of the first working day after the order is made, the order does not come into force: see subsection 15N(1).
15K Freezing order does not prevent withdrawal to enable financial institution to meet its liabilities
A *freezing order relating to an *account with a *financial institution does not prevent the institution from allowing a withdrawal from the account to enable the institution to meet a liability imposed on the institution by or under a written law of the Commonwealth, a State or a Territory.
15L Offence for contravening freezing orders
A *financial institution commits an offence if:
(a) the institution allows a withdrawal from an *account with the institution; and
(b) there is a *freezing order relating to the account; and
(c) allowing the withdrawal contravenes the order.
Penalty: Imprisonment for 5 years or 300 penalty units or both.
15M Protection from suits etc. for those complying with orders
No action, suit or proceeding lies against:
(a) a *financial institution; or
(b) an *officer or *agent of the institution acting in the course of that person’s employment or agency;
in relation to any action taken by the institution or person in complying with a *freezing order or in the mistaken belief that action was required under a freezing order.
Note: This section does not affect any action that may lie against anyone else for the making or operation of a freezing order.
Division 4—Duration of freezing orders
15N When a freezing order is in force
(1) A *freezing order relating to an *account with a *financial institution comes into force when a copy of the order (or of a form of the order under section 15E) is given to the institution. However, the order does not come into force if the copy is given to the institution after the end of the first *working day after the order is made.
(2) The *freezing order remains in force until:
(a) the end of the period specified in the order (as affected by section 15P if relevant) from when the copy of the order was given to the institution; or
(b) if, before the end of that period, a court makes a decision on an application for a *restraining order to cover the *account—the time the court makes that decision.
(3) The *freezing order, as originally made, must not specify a period of more than 3 *working days.
15P Order extending a freezing order
(1) A magistrate may make an order extending the period specified in a *freezing order made in relation to an *account with a *financial institution if:
(a) an *authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338 applies for the extension; and
(b) the magistrate is satisfied that an application has been made to a court (but not decided by the court) for a *restraining order to cover the account (whether or not the restraining order is also to cover other property).
(2) The extension may be for:
(a) a specified number of *working days; or
(b) the period ending when the court decides the application for the *restraining order.
(3) The extension does not have effect unless a copy of the order for the extension is given to the *financial institution before the time the *freezing order would cease to be in force apart from the extension.
(4) The following provisions apply in relation to an order extending a *freezing order in a way corresponding to the way in which they apply in relation to a freezing order:
(a) Division 2 (except paragraphs 15C(c) and (d));
(b) section 15J (except the note to that section).
(5) Division 2 applies because of subsection (4) as if:
(a) section 15C also required that an affidavit supporting an application:
(i) identify the *freezing order; and
(ii) state that an application has been made for a *restraining order to cover the *account; and
(b) the reference in subsection 15E(1) to section 15B were a reference to subsection (1) of this section.
Division 5—Varying scope of freezing orders
15Q Magistrate may vary freezing order to allow withdrawal to meet reasonable expenses
(1) A magistrate may vary a *freezing order relating to an *account with a *financial institution so that the institution may allow a withdrawal from the account to meet one or more of the following relating to a person in whose name the account is held:
(a) the reasonable living expenses of the person;
(b) the reasonable living expenses of any of the *dependants of the person;
(c) the reasonable business expenses of the person;
(d) a specified debt incurred in good faith by the person.
(2) The magistrate may vary the *freezing order only if:
(a) a person in whose name the *account is held has applied for the variation; and
(b) the person has notified the *DPP in writing of the application and the grounds for the application; and
(c) the magistrate is satisfied that the expense or debt does not, or will not, relate to legal costs that the person has incurred, or will incur, in connection with:
(i) proceedings under this Act; or
(ii) proceedings for an offence against a law of the Commonwealth, a State or a Territory; and
(d) the magistrate is satisfied that the person cannot meet the expense or debt out of property that is not covered by:
(i) a freezing order; or
(ii) a *restraining order; or
(iii) an *interstate restraining order; or
(iv) a *foreign restraining order that is registered under the *Mutual Assistance Act.
(3) The variation does not take effect until written notice of it is given to the *financial institution.
Division 6—Revoking freezing orders
15R Application to revoke a freezing order
(1) A person may apply to a magistrate to revoke a *freezing order.
(2) The applicant for the revocation must give written notice of the application and the grounds on which the revocation is sought to the *enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the *authorised officer who applied for the *freezing order.
(3) One or more of the following may adduce additional material to the magistrate relating to the application to revoke the *freezing order:
(a) the *authorised officer who applied for the freezing order;
(b) the authorised officer whose affidavit supported the application for the freezing order;
(c) another authorised officer described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer mentioned in paragraph (a) or (b) of this subsection.
(4) The magistrate may revoke the *freezing order if satisfied that it is in the interests of justice to do so.
15S Notice of revocation of a freezing order
(1) If a *freezing order relating to an *account with a *financial institution is revoked under section 15R, an *authorised officer (the notifying officer) described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer who applied for the freezing order must cause written notice of the revocation to be given to:
(a) the financial institution; and
(b) each person in whose name the account is held.
(2) However, the notifying officer need not give notice to the applicant for the revocation.
(3) Subsection (1) does not require more than one *authorised officer to cause notice of the revocation to be given.
4 Paragraph 337A(1)(a)
After “for a”, insert “*freezing order,”.
5 Paragraph 337A(2)(a)
After “for a”, insert “*freezing order or”.
6 Section 338
Insert:
freezing order means an order under section 15B, with any variations under section 15Q.
7 Section 338
Insert:
working day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the place concerned.
8 Application
Part 2‑1A of the Proceeds of Crime Act 2002 applies in relation to an account if there are reasonable grounds to suspect that the balance of the account:
(a) is proceeds of an indictable offence, a foreign indictable offence or an indictable offence of Commonwealth concern; or
(b) is wholly or partly an instrument of a serious offence;
whether the conduct constituting the offence occurs before, on or after the commencement of that Part.
Division 2—Related amendments
Crimes Act 1914
9 Subsection 21E(4) (paragraph (a) of the definition of confiscation proceedings)
After “for”, insert “freezing orders,”.
Family Law Act 1975
10 Subsection 4(1) (before paragraph (a) of the definition of proceeds of crime order)
Insert:
(aa) a freezing order under the Proceeds of Crime Act 2002; or
Part 2—Removal of 6‑year time limit
Proceeds of Crime Act 2002
11 Paragraph 18(1)(d)
Repeal the paragraph, substitute:
(d) there are reasonable grounds to suspect that a person has committed a *serious offence; and
12 Paragraph 18(3)(a)
Repeal the paragraph, substitute:
(a) that the authorised officer suspects that the *suspect committed the offence; and
13 At the end of subparagraph 19(1)(d)(ii)
Add “and”.
14 Paragraph 19(1)(d)
Omit “and, if the offence is not a terrorism offence, that the offence was committed within the 6 years preceding the application, or since the application was made; and”.
15 Application of amendments of sections 18 and 19
The amendments of sections 18 and 19 of the Proceeds of Crime Act 2002 made by this Part apply in relation to applications made on or after the commencement of the amendments for a restraining order, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
16 Paragraph 47(1)(c)
Repeal the paragraph, substitute:
(c) the court is satisfied that a person whose conduct or suspected conduct formed the basis of the restraining order engaged in conduct constituting one or more *serious offences.
17 Paragraph 49(1)(d)
Repeal the paragraph.
18 Application of amendments of sections 47 and 49
The amendments of sections 47 and 49 of the Proceeds of Crime Act 2002 made by this Part apply in relation to applications made on or after the commencement of the amendments for a forfeiture order, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
19 Subsection 84(1)
Omit “(1)”.
20 Subsection 84(2)
Repeal the subsection.
21 Subsection 85(1)
Omit “84(1)(a)”, substitute “84(a)”.
22 Subsection 85(2)
Omit “84(1)(b)”, substitute “84(b)”.
23 Subsection 110(1)
Omit “(1)”.
24 Subsection 110(2)
Repeal the subsection.
25 Subsection 111(1)
Omit “110(1)(a)”, substitute “110(a)”.
26 Subsection 111(2)
Omit “110(1)(b)”, substitute “110(b)”.
27 Subparagraph 116(1)(b)(ii)
Omit “subject to subsection (2),”.
28 Subsection 116(2)
Repeal the subsection.
29 Application of amendments of section 116
The amendments of section 116 of the Proceeds of Crime Act 2002 made by this Part apply in relation to applications made on or after the commencement of the amendments for a pecuniary penalty order, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
30 Section 149
Repeal the section, substitute:
149 Court may confirm pecuniary penalty order
The court may confirm the *pecuniary penalty order if the court is satisfied that, when the *DPP applied for the order, the court could have made the order without relying on the person’s conviction that was *quashed.
31 Application of new section 149
Section 149 of the Proceeds of Crime Act 2002 as amended by this Part applies in relation to pecuniary penalty orders applied for after the commencement of that section, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
32 Subparagraphs 202(5)(a)(ii) and (iii)
Repeal the subparagraphs, substitute:
(ii) whom there are reasonable grounds to suspect of having engaged in conduct constituting a *serious offence;
33 Subparagraphs 202(5)(c)(ii) and (iii)
Repeal the subparagraphs, substitute:
(ii) proceeds of a serious offence, or an instrument of a serious offence, that a person is reasonably suspected of having committed;
34 Subsection 202(6)
Omit “or (iii)”.
35 Application of amendments of section 202
The amendments of section 202 of the Proceeds of Crime Act 2002 made by this Part apply in relation to production orders applied for on or after the commencement of the amendments, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
36 Section 338 (paragraph (g) of the definition of serious offence)
After “Criminal Code”, insert “or former section 5, 7, 7A or 86 of the Crimes Act 1914”.
Part 3—Confiscation scheme and instruments of serious offences
Proceeds of Crime Act 2002
37 Subparagraph 18(2)(d)(ii)
Omit “*terrorism”, substitute “*serious”.
38 Subparagraph 18(3)(b)(iii)
Omit “terrorism”, substitute “*serious”.
39 Subparagraph 19(1)(d)(ii)
Omit “terrorism”, substitute “*serious”.
40 Subparagraph 19(1)(e)(ii)
Omit “terrorism”, substitute “serious”.
41 Paragraph 19(2)(b)
Omit “*terrorism”, substitute “*serious”.
42 Application of amendments of sections 18 and 19
The amendments of sections 18 and 19 of the Proceeds of Crime Act 2002 made by this Part apply in relation to applications made on or after the commencement of the amendments for a restraining order, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
43 Subparagraph 29(2)(c)(ii)
Omit “a *terrorism”, substitute “a serious”.
44 Subparagraph 29(2)(c)(ii)
Omit “any terrorism”, substitute “any serious”.
45 Subparagraph 29(2)(d)(ii)
Omit “a *terrorism”, substitute “a serious”.
46 Subparagraph 29(2)(d)(ii)
Omit “any terrorism”, substitute “any serious”.
47 Paragraph 45(6)(ca)
Omit “*terrorism”, substitute “*serious”.
48 Application of amendments of sections 29 and 45
The amendments of sections 29 and 45 of the Proceeds of Crime Act 2002 made by this Part apply in relation to restraining orders made as a result of an application made on or after the commencement of the amendments, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
49 At the end of section 47
Add:
Refusal to make a forfeiture order
(4) Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:
(a) is an *instrument of a *serious offence other than a *terrorism offence; and
(b) is not *proceeds of an offence;
if the court is satisfied that it is not in the public interest to make the order.
50 Application of new subsection 47(4)
Subsection 47(4) of the Proceeds of Crime Act 2002 applies in relation to the making of an order on or after the commencement of that subsection, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
51 Subparagraph 49(1)(c)(iv)
Omit “*terrorism”, substitute “*serious”.
52 Application of amendment of subparagraph 49(1)(c)(iv)
The amendment of subparagraph 49(1)(c)(iv) of the Proceeds of Crime Act 2002 made by this Part applies in relation to applications made on or after the commencement of the amendment for a forfeiture order, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
53 At the end of section 49
Add:
Refusal to make a forfeiture order
(4) Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:
(a) is an *instrument of a *serious offence other than a *terrorism offence; and
(b) is not *proceeds of an offence;
if the court is satisfied that it is not in the public interest to make the order.
54 Application of new subsection 49(4)
Subsection 49(4) of the Proceeds of Crime Act 2002 applies in relation to the making of an order on or after the commencement of that subsection, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
55 Subparagraph 73(1)(c)(ii)
Omit “a *terrorism”, substitute “a *serious”.
56 Subparagraph 73(1)(c)(ii)
Omit “any terrorism”, substitute “any serious”.
57 Subparagraph 73(1)(d)(iii)
Omit “terrorism” (wherever occurring), substitute “serious”.
58 Subparagraph 85(2)(a)(ii)
Omit “*terrorism”, substitute “*serious”.
59 Subparagraph 85(2)(b)(ii)
Omit “terrorism”, substitute “serious”.
60 Application of amendments of sections 73 and 85
The amendments of sections 73 and 85 of the Proceeds of Crime Act 2002 made by this Part apply in relation to forfeiture orders applied for on or after the commencement of the amendments, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
61 Subparagraph 111(2)(a)(ii)
Omit “*terrorism”, substitute “*serious”.
62 Subparagraph 111(2)(b)(ii)
Omit “terrorism”, substitute “serious”.
63 Application of amendments of section 111
The amendments of section 111 of the Proceeds of Crime Act 2002 made by this Part apply in relation to the quashing, on or after the commencement of the amendments, of a conviction of an offence, whether the conviction occurred before, on or after that commencement.
Part 4—Disclosure of information
Proceeds of Crime Act 2002
64 Section 8
Before “Chapter 3”, insert “(1)”.
65 At the end of section 8
Add:
(2) Chapter 3 also authorises the disclosure, to certain authorities for certain purposes, of information obtained under that Chapter or certain other provisions (see Part 3‑6).
66 At the end of subsection 223(4)
Add:
; (e) a person who is or forms part of an authority with one or more functions under this Act for the purpose of facilitating the authority’s performance of its functions under this Act;
(f) a person who is or forms part of an authority of the Commonwealth, or of a State, Territory or foreign country, that has a function of investigating or prosecuting crimes against a law of the Commonwealth, State, Territory or country for the purpose of assisting in the prevention, investigation or prosecution of a crime against that law;
(g) a person in the Australian Taxation Office for the purpose of protecting public revenue.
67 At the end of Chapter 3
Add:
Part 3‑6—Disclosure of information
266A Disclosure
(1) This section applies if a person obtains information:
(a) as a direct result of:
(i) the person being given a sworn statement under an order made under paragraph 39(1)(d); or
(ii) the exercise of a power (by the person or someone else), or performance (by the person) of a function, under Part 3‑1, 3‑2, 3‑3, 3‑4 or 3‑5; or
(b) as a result of a disclosure, or a series of disclosures, under this section.
(2) The person may disclose the information to an authority described in an item of the following table for a purpose described in that item if the person believes on reasonable grounds that the disclosure will serve that purpose:
| Recipients and purposes of disclosure | ||
| Item | Authority to which disclosure may be made | Purpose for which disclosure may be made |
| 1 | Authority with one or more functions under this Act | Facilitating the authority’s performance of its functions under this Act |
| 2 | Authority of the Commonwealth, or of a State or Territory, that has a function of investigating or prosecuting offences against a law of the Commonwealth, State or Territory | Assisting in the prevention, investigation or prosecution of an offence against that law that is punishable on conviction by imprisonment for at least 3 years or for life |
| 2A | Authority of a foreign country that has a function of investigating or prosecuting offences against a law of the country | Assisting in the prevention, investigation or prosecution of an offence against that law constituted by conduct that, if it occurred in Australia, would constitute an offence against a law of the Commonwealth, or of a State or Territory, punishable on conviction by imprisonment for at least 3 years or for life |
| 3 | Australian Taxation Office | Protecting public revenue |
Limits on use of information disclosed
(3) In civil or *criminal proceedings against a person who gave an answer or produced a document in an *examination, none of the following that is disclosed under this section is admissible in evidence against the person:
(a) the answer or document;
(b) information contained in the answer or document.
(4) Subsection (3) does not apply in:
(a) *criminal proceedings for giving false or misleading information; or
(b) proceedings on an application under this Act; or
(c) proceedings ancillary to an application under this Act; or
(d) proceedings for enforcement of a *confiscation order; or
(e) civil proceedings for or in respect of a right or liability the document confers or imposes.
Note: Subsections (3) and (4) reflect section 198.
(5) In a *criminal proceeding against a person who produced or made available a document under a *production order, none of the following that is disclosed under this section is admissible in evidence against the person:
(a) the document;
(b) information contained in the document.
(6) Subsection (5) does not apply in a proceeding under, or arising out of, section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to producing the document or making it available.
Note: Subsections (5) and (6) reflect subsection 206(2).
(7) To avoid doubt, this section does not affect the admissibility in evidence of any information, document or thing obtained as an indirect consequence of a disclosure under this section.
Relationship with subsection 228(2)
(8) To avoid doubt:
(a) this section does not limit subsection 228(2) (about a *search warrant authorising the *executing officer to make things seized under the warrant available to officers of other *enforcement agencies); and
(b) subsection 228(2) does not limit this section.
Part 5—Legal aid costs
Proceeds of Crime Act 2002
68 Section 292
Repeal the section.
69 Subsections 293(1), (2) and (3)
Repeal the subsections, substitute:
(1) This section applies if:
(a) a *legal aid commission incurred (before, on or after the commencement of this subsection) legal costs for:
(i) representing a person whose property was, at the time of the representation, covered by a *restraining order in proceedings under this Act; or
(ii) representing a person, who was a *suspect at the time of the representation and whose property was at that time covered by a restraining order, in proceedings for defending any criminal charge against the person; and
(b) the commission has given (before, on or after the commencement of this subsection) the *Official Trustee a bill for the costs; and
(c) the Official Trustee is satisfied that the bill is true and correct.
(2) The *Official Trustee must pay the legal costs (according to the bill) to the *legal aid commission out of the *Confiscated Assets Account, subject to subsection (2A).
(2A) If the *Official Trustee is satisfied that:
(a) the balance of the *Confiscated Assets Account is insufficient to pay the legal costs; and
(b) property of the person is covered by the *restraining order;
the Official Trustee must pay the legal costs (according to the bill) to the *legal aid commission out of that property covered by the order, to the extent possible.
(3) If the *Official Trustee pays an amount to the *legal aid commission under this section and property of the person is covered by a *restraining order, the person must pay the Commonwealth an amount equal to the lesser of the following (or either of them if they are the same):
(a) the amount paid to the legal aid commission;
(b) the value of the person’s property covered by the restraining order.
Note: The heading to section 293 is replaced by the heading “Payments to legal aid commissions for representing suspects and other persons”.
70 Division 1 of Part 4‑4
Repeal the Division.
71 Application of amendments of Chapter 4
The amendments of Chapter 4 of the Proceeds of Crime Act 2002 made by this Part apply in relation to costs that:
(a) were incurred by legal aid commissions before, on or after the commencement of the amendments; and
(b) if they were incurred before that commencement, had not been paid to the commissions before that commencement.
Part 6—Technical amendments
Proceeds of Crime Act 2002
72 Subsection 37(1) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
73 Subsection 37(2) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
74 Section 40 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
75 Section 71 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
76 Section 195 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
77 Subsection 196(1) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
78 Section 199 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
79 Section 200 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
80 Subsection 201(1) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
81 Section 209 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
82 Subsection 210(1) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
83 Subsection 210(2) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
84 Subsection 211(1) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
85 Section 212 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
86 Section 216 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
87 Section 217 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
88 Section 218 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
89 Section 222 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
90 Subsection 223(1) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
91 Subsection 223(2) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
92 Subsection 223(3) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
93 Section 224 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
94 Section 232 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
95 Section 233 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
96 Section 234 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
97 Section 235 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
98 Subsection 246(3) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
99 Section 266 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
100 Subsection 272(1) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
101 Subsection 272(2) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
102 Section 273 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
103 Subsection 274(1)
Omit “(1) A person”, substitute “A person”.
104 Subsection 274(1) (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
105 Section 275 (penalty)
Omit “Maximum penalty:”, substitute “Penalty:”.
Part 7—Other amendments
Proceeds of Crime Act 2002
106 Subsection 42(5)
Repeal the subsection, substitute:
(5) The court may revoke the *restraining order if satisfied that:
(a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or
(b) it is otherwise in the interests of justice to do so.
107 Application and transitional
(1) The amendment of section 42 of the Proceeds of Crime Act 2002 made by this Part applies in relation to the revocation of a restraining order on or after commencement, whether the application for that revocation was made before, on or after commencement.
(2) If an application under section 42 of the Proceeds of Crime Act 2002 for the revocation of a restraining order has been made but not determined as at commencement:
(a) the applicant may vary the application to take account of paragraph 42(5)(b) of the Proceeds of Crime Act 2002 as in force at commencement; and
(b) if the application is varied under paragraph (a) of this subitem—the applicant must give a copy of the application as varied, and written notice of any additional grounds that he or she proposes to rely on in seeking that revocation, to the responsible authority and the Official Trustee; and
(c) the responsible authority may adduce additional material to the court relating to those additional grounds.
(3) In this item:
commencement means the commencement of this item.
Schedule 3—Amendments relating to controlled operations, assumed identities and witness identity protection
Part 1—Main amendments
Crimes Act 1914
1 Subsection 3(1) (definition of ACC authorising officer)
Repeal the definition.
2 Subsection 3(1) (definition of ACLEI authorising officer)
Repeal the definition.
3 Subsection 3(1) (definition of AFP authorising officer)
Repeal the definition.
4 Subsection 3(1) (definition of appropriate authorising officer)
Repeal the definition.
5 Subsection 3(1) (definition of authorising officer)
Repeal the definition.
6 Subsection 3(1) (definition of controlled operation)
Repeal the definition.
7 Subsection 3(1) (definition of major controlled operation)
Repeal the definition.
8 Subsection 3(1) (definition of nominated Tribunal member)
Repeal the definition.
9 Subsection 3(1) (definition of person targeted)
Repeal the definition.
10 Parts IAB and IAC
Repeal the Parts, substitute:
Part IAB—Controlled operations
Division 1—Preliminary
15G Objects of Part
The main objects of this Part are:
(a) to provide for the authorisation, conduct and monitoring of controlled operations; and
(b) to exempt from criminal liability, and to indemnify from civil liability:
(i) law enforcement officers who, in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability; and
(ii) certain other persons who, in accordance with the instructions of a law enforcement officer and in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability.
(4) If a party to the proceedings appeals against the decision to give or refuse leave, or to make or refuse to make the order, the appeal court may allow the operative to whom the certificate relates, or the chief officer who gave the certificate, to join the appeal as a respondent, if the appeal court is satisfied that the operative or chief officer has a sufficient interest in the decision.
(5) A party to the proceedings, the operative to whom the certificate relates or the chief officer who gave the certificate may apply to the original court for an adjournment:
(a) to appeal against the decision of the original court to give or refuse leave, or to make or refuse to make the order; or
(b) to decide whether to appeal or seek leave to appeal against the decision.
(6) If an application is made under subsection (5), the original court must grant the adjournment.
15MQ Witness identity protection certificate—cancellation
(1) This section applies if the chief officer of a law enforcement agency gives a witness identity protection certificate for an operative in relation to a proceeding.
(2) The chief officer must cancel the witness identity protection certificate if the chief officer considers that it is no longer necessary or appropriate to prevent the disclosure of the operative’s identity or where the operative lives.
(3) If the chief officer cancels the certificate after it has been filed in a court, the chief officer must immediately give notice to the court and each party to the proceeding, in writing, that the certificate has been cancelled.
Note: The chief officer may delegate functions under this section—see section 15MX.
15MR Permission to give information disclosing operative’s identity etc.
(1) This section applies if the chief officer of a law enforcement agency gives a witness identity protection certificate for an operative in relation to a proceeding.
(2) The chief officer may, in writing, permit a person to give information (otherwise than in the proceeding) that discloses, or may lead to the disclosure of, the operative’s identity or where the operative lives if the chief officer considers it necessary or appropriate for the information to be given.
(3) The permission:
(a) must name the person who may give the information; and
(b) must name the person to whom the information may be given; and
(c) must state the information that may be given; and
(d) may state how the information may be given.
Note: The chief officer may delegate functions under this section—see section 15MX.
15MS Disclosure offences
(1) A person commits an offence if:
(a) a witness identity protection certificate for an operative in relation to a proceeding has been given; and
(b) the certificate has not been cancelled under section 15MQ; and
(c) the person engages in conduct; and
(d) the conduct results in the disclosure of the operative’s identity or where the operative lives; and
(e) none of the following applies:
(i) the conduct is required by section 15ML;
(ii) the conduct is authorised by leave or by an order under section 15MM;
(iii) the conduct is permitted under section 15MR.
Penalty: Imprisonment for 2 years.
(2) A person commits an offence if:
(a) a witness identity protection certificate for an operative in relation to a proceeding has been given; and
(b) the certificate has not been cancelled under section 15MQ; and
(c) the person engages in conduct; and
(d) the conduct results in the disclosure of the operative’s identity or where the operative lives; and
(e) none of the following applies:
(i) the conduct is required by section 15ML;
(ii) the conduct is authorised by leave or by an order under section 15MM;
(iii) the conduct is permitted under section 15MR; and
(f) the person is reckless as to whether his or her conduct will endanger the health or safety of another person.
Penalty: Imprisonment for 10 years.
(3) A person commits an offence if:
(a) a witness identity protection certificate for an operative in relation to a proceeding has been given; and
(b) the certificate has not been cancelled under section 15MQ; and
(c) the person engages in conduct; and
(d) the conduct results in the disclosure of the operative’s identity or where the operative lives; and
(e) none of the following applies:
(i) the conduct is required by section 15ML;
(ii) the conduct is authorised by leave or by an order under section 15MM;
(iii) the conduct is permitted under section 15MR; and
(f) the person is reckless as to whether his or her conduct will:
(i) prejudice any current or future investigation; or
(ii) prejudice any current or future activity relating to security.
Penalty: Imprisonment for 10 years.
15MT Evidentiary certificates
(1) A chief officer of a law enforcement agency may sign a certificate stating any of the following:
(a) that, for the purposes of paragraph 15MS(1)(b), (2)(b) or (3)(b), a witness identity protection certificate for an operative in relation to a proceeding has not been cancelled under section 15MQ;
(b) whether, for the purposes of subparagraph 15MS(1)(e)(i), (2)(e)(i) or (3)(e)(i), the conduct that is the subject of the offence was required by section 15ML;
(c) whether, for the purposes of subparagraph 15MS(1)(e)(ii), (2)(e)(ii) or (3)(e)(ii), the conduct that is the subject of the offence was authorised by leave or by an order under section 15MM;
(d) whether, for the purposes of subparagraph 15MS(1)(e)(iii), (2)(e)(iii) or (3)(e)(iii), the conduct that is the subject of the offence was permitted under section 15MR.
(2) In any proceedings, a certificate given under this section is prima facie evidence of the matters certified in it.
15MU Reports about witness identity protection certificates
(1) As soon as practicable after the end of each financial year, the chief officer of a law enforcement agency must submit to the Minister a report about witness identity protection certificates given by the chief officer during that year.
(2) The report must include the following:
(a) the number of witness identity protection certificates given;
(b) on what basis the chief officer was satisfied about the matters mentioned in paragraph 15ME(1)(b) for each certificate;
(c) if disclosure of an operative’s identity to a presiding officer was required by section 15ML—details of the proceeding in relation to which disclosure was required and details of the things that the presiding officer required the operative to do under that section;
(d) if leave was given or an order made under section 15MM in a proceeding in which a witness identity protection certificate for an operative was filed—details of the proceeding that relate to the leave or order;
(e) if leave was given for joinder of a person as a respondent to proceedings under section 15MN—details of the person who was joined and who appeared on their behalf;
(f) if leave was given for an adjournment under section 15MP—details of whether an appeal was made against the decision under that section;
(g) if a witness identity protection certificate was cancelled under section 15MQ—the reasons why the certificate was cancelled;
(h) if a permission was given under section 15MR—the reasons why the permission was given;
(i) any other information relating to witness identity protection certificates and the administration of this Part that the Minister considers appropriate.
(3) A report must not include information that discloses, or may lead to the disclosure of, an operative’s identity, or where the operative lives, unless the witness identity protection certificate for the operative has been cancelled.
(4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
Division 3—Mutual Recognition under Corresponding Laws
15MW Recognition of witness identity protection certificates under corresponding laws
The following provisions apply, with any necessary changes, to a corresponding witness identity protection certificate as if it were a witness identity protection certificate given under section 15ME:
(a) section 15MH (filing and notification);
(b) section 15MI (leave for non‑compliance);
(c) section 15MJ (effect of witness identity protection certificate);
(d) section 15MK (orders to protect operative’s identity etc.);
(e) section 15ML (disclosure of operative’s identity to presiding officer);
(f) section 15MM (disclosure of operative’s identity etc. despite certificate);
(g) section 15MN (application for leave—joinder as respondent);
(h) section 15MO (directions to jury);
(i) section 15MP (adjournment for appeal decision);
(j) section 15MS (disclosure offences);
(k) section 15MT (evidentiary certificates).
Division 4—General
15MX Delegation
(1) Except as provided by this section (and despite any other Act or law to the contrary), the functions of a chief officer under this Part may not be delegated to any other person.
(2) A chief officer may delegate any of the chief officer’s functions under this Part (except this power of delegation) to a senior officer of the law enforcement agency.
(3) In this section:
senior officer means:
(a) in relation to the Australian Federal Police—a Deputy Commissioner, an Assistant Commissioner, or a person occupying an equivalent or higher rank in the Australian Federal Police; and
(b) in relation to Customs—a Deputy Chief Executive Officer of Customs, or a person occupying an equivalent or higher position in Customs; and
(c) in relation to the ACC, either of the following:
(i) the Executive Director Operational Strategies, the Executive Director Intelligence Strategies, or a person occupying an equivalent or higher position in the ACC;
(ii) a person occupying a position prescribed by the regulations; and
(d) in relation to the Australian Taxation Office—an Assistant Commissioner, or a person occupying an equivalent or higher position in the Australian Taxation Office; and
(e) in relation to a Commonwealth agency specified in the regulations for the purposes of the definition of law enforcement agency—an officer of the agency specified in the regulations to be a senior officer of the agency.
Part 2—Provisions relating to pre‑commencement authorisations under State controlled operations law
11 Relationship to other laws and matters
(1) Subject to this item and item 15, this Part is not intended to limit a discretion that a court has:
(a) to admit or exclude evidence in any proceedings; or
(b) to stay criminal proceedings in the interests of justice.
(2) In determining whether evidence should be admitted or excluded in any proceedings, the fact that the evidence was obtained as a result of a person engaging in criminal activity is, subject to subitem (5), to be disregarded if:
(a) the person was a participant in an operation authorised before commencement under a State controlled operations law, acting in the course of that operation; and
(b) the criminal activity was conduct constituting an offence for which a person would, but for item 12, be criminally responsible.
(3) This item applies to criminal activity engaged in before, on or after commencement.
(4) This item applies to the following:
(a) proceedings that were instituted before commencement, but have not been completed as at commencement;
(b) proceedings instituted on or after commencement;
(c) subject to subitem (5)—appeals arising from proceedings instituted before, on or after commencement.
(5) Despite subitem (4), if a court has determined before commencement that particular evidence be excluded, this item does not provide a ground of appeal against that determination.
12 Protection from criminal responsibility for conduct engaged in before, on or after commencement under a pre‑commencement State authorisation
(1) This item applies to a participant in an operation authorised under a State controlled operations law if:
(a) the operation was authorised before commencement; and
(b) the participant engaged in conduct, whether before, on or after commencement, in the course of, and for the purposes of, the operation; and
(c) engaging in that conduct was a Commonwealth offence.
(2) Despite any other law of the Commonwealth, the participant is not criminally responsible for the Commonwealth offence, if:
(a) the conduct was authorised by, and was engaged in in accordance with, the authority to conduct the controlled operation; and
(b) the conduct did not involve the participant intentionally inducing a person to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit; and
(c) the conduct did not involve the participant engaging in any conduct that was likely to:
(i) cause the death of, or serious injury to, any person; or
(ii) involve the commission of a sexual offence against any person; and
(d) if the person is a civilian participant in the operation—he or she acts in accordance with the instructions of a law enforcement officer.
(3) Expressions used in this item have the same meanings as in the State controlled operations law under which the operation was authorised.
13 Effect of item 12 on other laws relating to criminal investigation
Item 12 does not apply to a person’s conduct that is, or could have been, authorised under a Commonwealth law or a law of a State or Territory relating to the following:
(a) arrest or detention of individuals;
(b) searches of individuals;
(c) entry onto, or searches or inspection of, premises;
(d) searches, inspections or seizures of other property;
(e) forensic procedure;
(f) electronic surveillance devices or telecommunications interception;
(g) identification procedures;
(h) the acquisition or use of assumed identities;
(i) any other matter concerning powers of criminal investigation.
14 Protection from criminal responsibility for certain ancillary conduct
(1) This item applies if:
(a) a person engaged in conduct (the ancillary conduct), whether before, on or after commencement, that related to conduct (the related conduct) that:
(i) was engaged in before, on or after commencement by another person; and
(ii) constituted an offence for which a person would, but for item 12, be criminally responsible; and
(b) engaging in the ancillary conduct was or is an ancillary offence (within the meaning of the Criminal Code) in relation to the offence constituted by the related conduct.
(2) Despite any law of the Commonwealth, the person who engaged in the ancillary conduct is not criminally responsible for the ancillary offence if, at the time the person engaged in the ancillary conduct, he or she believed the related conduct was being engaged in, or would be engaged in, by a participant in an operation authorised before commencement under a State controlled operations law.
(3) Expressions used in this item have the same meanings as in the State controlled operations law under which the person believed the controlled conduct was being engaged in.
15 Evidence of authorities
A document purporting to be an authority granted under a State controlled operations law:
(a) is admissible in any legal proceedings; and
(b) in the absence of evidence to the contrary, is proof in any proceedings (not being criminal or disciplinary proceedings against a law enforcement officer) that the person granting the authority was satisfied of the facts he or she was required to be satisfied of to grant the authority.
16 Definitions
In this Part:
commencement means the commencement of this item.
State controlled operations law means:
(a) a law of a State or Territory; or
(b) a provision or provisions of a law of a State or Territory;
prescribed by the regulations for the purposes of this definition.
Part 3—General application and transitional provisions
17 Controlled operations authorised before commencement continue under old law
(1) Despite the repeals and amendments made by this Part, the Crimes Act 1914, as in force immediately before the commencement of this item, continues to apply after that commencement, in relation to a pre‑commencement controlled operation, as if those repeals and amendments had not happened.
(2) In this item:
pre‑commencement controlled operation means a controlled operation authorised under Part IAB of the Crimes Act 1914 before the commencement of this item, whether or not the pre‑commencement controlled operation had been completed as at that commencement.
18 Controlled operations—continuation of Division 3 of Part IAB
Despite the repeal of Division 3 of Part IAB of the Crimes Act 1914 by this Part, that Division, as in force immediately before the commencement of this item, is taken to continue in effect as if it had not been repealed.
19 Assumed identities—authorisations taken to be authority under new law
(1) This item applies to an authorisation that was granted under section 15XG of the Crimes Act 1914 immediately before the commencement of this item.
(2) The authorisation has effect, after the commencement of this item, as if it were an authority granted under section 15KB as inserted by this Schedule.
20 Assumed identities—continuation of old law in relation to States without corresponding laws
(1) Despite the repeal of Part IAC of the Crimes Act 1914 by this Schedule:
(a) section 15XH of that Act, as in force immediately before the commencement of this item, continues in effect after that commencement, in relation to a State or Territory that is not a participating jurisdiction, as if that repeal had not happened; and
(b) that Part, and any other provision of the Crimes Act 1914 that relates to the operation of that Part, continues in effect in relation to authorisations under that Part and assumed identities acquired or used under such authorisations as if that repeal had not happened.
(2) In this item:
participating jurisdiction has the same meaning as in section 15K of the Crimes Act 1914, as in force immediately after the commencement of this item.
Part 4—Consequential amendment
Customs Act 1901
21 Section 219ZJA (definition of serious Commonwealth offence)
Omit “15HB”, substitute “15GE”.
Schedule 4—Other amendments
Part 1—Joint commission
Criminal Code Act 1995
1 Subsection 11.1(7) of the Criminal Code
After “section 11.2 (complicity and common purpose),”, insert “section 11.2A (joint commission), section 11.3 (commission by proxy),”.
2 Subsection 11.2(5) of the Criminal Code
Omit “principal offender”, substitute “other person”.
3 Subsection 11.2(6) of the Criminal Code
Omit “to the offence of aiding, abetting, counselling or procuring the commission of that offence”, substitute “for the purposes of determining whether a person is guilty of that offence because of the operation of subsection (1)”.
4 After section 11.2 of the Criminal Code
Insert:
11.2A Joint commission
Joint commission
(1) If:
(a) a person and at least one other party enter into an agreement to commit an offence; and
(b) either:
(i) an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or
(ii) an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));
the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.
Offence committed in accordance with the agreement
(2) An offence is committed in accordance with the agreement if:
(a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.
Offence committed in the course of carrying out the agreement
(3) An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4) For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
Agreement may be non‑verbal etc.
(5) The agreement:
(a) may consist of a non‑verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.
Termination of involvement etc.
(6) A person cannot be found guilty of an offence because of the operation of this section if, before the conduct constituting any of the physical elements of the joint offence concerned was engaged in, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent that conduct from being engaged in.
Person may be found guilty even if another party not prosecuted etc.
(7) A person may be found guilty of an offence because of the operation of this section even if:
(a) another party to the agreement has not been prosecuted or has not been found guilty; or
(b) the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in.
Special liability provisions apply
(8) Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.
Note: The heading to section 11.3 of the Criminal Code is replaced by the heading “Commission by proxy”.
5 Subsection 11.6(4) of the Criminal Code (note)
Omit “and 11.3 (innocent agency)”, substitute “, 11.2A (joint commission), and 11.3 (commission by proxy)”.
6 Subsection 14.1(1) of the Criminal Code (note)
Omit “subsection 11.2(1)”, substitute “subsections 11.2(1) and 11.2A(1)”.
7 Subsection 15.1(1) of the Criminal Code (note)
Omit “subsection 11.2(1)”, substitute “subsections 11.2(1) and 11.2A(1)”.
8 Subsection 15.2(1) of the Criminal Code (note)
Omit “subsection 11.2(1)”, substitute “subsections 11.2(1) and 11.2A(1)”.
9 Subsection 15.3(1) of the Criminal Code (note)
Omit “subsection 11.2(1)”, substitute “subsections 11.2(1) and 11.2A(1)”.
10 Section 15.4 of the Criminal Code (note)
Omit “subsection 11.2(1)”, substitute “subsections 11.2(1) and 11.2A(1)”.
11 Subsection 70.5(1) of the Criminal Code (note)
After “11.2(1)”, insert “, 11.2A(1)”.
12 Paragraph 302.6(a) of the Criminal Code
After “11.2”, insert “or 11.2A”.
13 Dictionary in the Criminal Code (paragraph (b) of the definition of ancillary offence)
After “11.2”, insert “, 11.2A”.
Part 2—Amendment of the Telecommunications (Interception and Access) Act 1979
Division 1—Offences involving criminal organisations
Telecommunications (Interception and Access) Act 1979
14 Subsection 5(1)
Insert:
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).
15 Subsection 5(1)
Insert:
criminal organisation means an organisation (whether incorporated or not, and however structured) 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.
16 Subsection 5(1)
Insert:
member, of a criminal organisation, includes:
(a) in the case of an organisation that is a body corporate—a director and an officer of the body corporate; and
(b) in any case:
(i) an associate member or prospective member (however described) of the organisation; and
(ii) a person who identifies himself or herself, in some way, as belonging to the organisation; and
(iii) a person who is treated by the organisation or persons who belong to the organisation, in some way, as if he or she belongs to the organisation.
16A After subsection 5D(3)
Insert:
Offences relating to criminal groups
(3AA) An offence is also a serious offence if it is an offence against section 93T of the Crimes Act 1900 of New South Wales.
17 At the end of section 5D
Add:
Offences relating to criminal organisations
(9) An offence is also a serious offence if:
(a) the particular conduct constituting the offence involved, involves or would involve, as the case requires:
(i) associating with a criminal organisation, or a member of a criminal organisation; or
(ii) contributing to the activities of a criminal organisation; or
(iii) aiding, abetting, counselling or procuring the commission of a prescribed offence for a criminal organisation; or
(iv) 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
(v) conspiring to commit a prescribed offence for a criminal organisation; and
(b) if the offence is covered by subparagraph (a)(i)—the conduct constituting the offence was engaged in, or is reasonably suspected of having been engaged in, for the purpose of supporting the commission of one or more prescribed offences by the organisation or its members; and
(c) if the offence is covered by subparagraph (a)(ii)—the conduct constituting the offence was engaged in, or is reasonably suspected of having been engaged in, for the purpose of enhancing the ability of the organisation or its members to commit or facilitate the commission of one or more prescribed offences.
18 Application
Subsections 5D(3AA) and (9) of the Telecommunications (Interception and Access) Act 1979 apply whether the conduct constituting the offences concerned was engaged in before or after the commencement of this item.
Division 2—Use of information for purposes of organised crime control laws
Telecommunications (Interception and Access) Act 1979
18A Subsection 5(1)
Insert:
organised crime control law means a law of a State, a purpose of which is to combat organised crime or restrict the activities of criminal organisations, that provides for:
(a) the declaration of an organisation as a declared organisation; or
(b) the making of orders described as control orders or interim control orders in relation to members of criminal organisations.
18B Subsection 5(1) (at the end of subparagraphs (c)(i), (ii), (iia) and (iib) of the definition of permitted purpose)
Add “or”.
18C Subsection 5(1) (at the end of paragraph (c) of the definition of permitted purpose)
Add:
(v) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, an organised crime control law of that State; or
18D After paragraph 5B(1)(c)
Insert:
(ca) a proceeding under, or a proceeding relating to a matter arising under, an organised crime control law; or
18E At the end of paragraphs 6L(1)(a), (b) and (c)
Add “or”.
18F After paragraph 6L(1)(c)
Insert:
(ca) a proceeding under, or in relation to a matter arising under, an organised crime control law of that State; or
18G At the end of paragraph 6L(1)(d)
Add “or”.
18H After subparagraph 68(d)(i)
Insert:
(ia) the subject matter of a proceeding under, or in relation to a matter arising under, an organised crime control law of a State; or
18J Application
The Telecommunications (Interception and Access) Act 1979, as amended by this Division, applies in relation to the communication, use and making of a record of information, and the giving of information in evidence in proceedings, on or after the commencement of this item, whether the information was obtained before or after that commencement.
Part 3—Regulations
19 Regulations
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act.
Notes to the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010
Note 1
The Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 as shown in this compilation comprises Act No. 3, 2010 amended as indicated in the Tables below.
Table of Acts
| Act | Number and year | Date of Assent | Date of commencement | Application, saving or transitional provisions |
| Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 | 3, 2010 | 19 Feb 2010 | See s. 2(1) | |
| Crimes Legislation Amendment Act (No. 2) 2011 | 174, 2011 | 5 Dec 2011 | Schedule 2 (item 154): 1 Jan 2012 | — |
Table of Amendments
| ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted | |
| Provision affected | How affected |
| Schedule 2 | |
| Item 107............................... | am. No. 174, 2011 |
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