Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 (Cth)
This compilation was prepared on 29 March 2011
taking into account amendments up to Act No. 5 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
This Act may be cited as the
Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 .
(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.
Sections 1 to 4 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 19 February 2010 |
Schedule 1, items 1 to 213 | The later of:
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. | 20 February 2010 |
Schedule 1, item 214 | The later of:
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. | 19 May 2010 |
Schedule 1, item 215 | The later of:
However, the provision(s) do not commence at all if:
| 20 February 2010 |
Schedule 1, item 216 | The later of:
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. | 19 May 2010 |
Schedule 1, items 217 to 221 | The later of:
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. | 20 February 2010 |
Schedules 2, 3 and 4 | The day after this Act receives the Royal Assent. | 20 February 2010 |
Schedule 5, Part 1 | The 28th day after this Act receives the Royal Assent. | 19 March 2010 |
Schedule 5, Part 2 | The day after this Act receives the Royal Assent. | 20 February 2010 |
Schedule 6, items 1 and 2 | The later of:
| 20 February 2010 (paragraph (a) applies) |
Schedule 6, item 3 | Immediately after the commencement of subsection 369(4) of the | 1 January 2010 ( |
Schedules 7, 8 and 9 | The day after this Act receives the Royal Assent. | 20 February 2010 |
Schedules 10 and 11 | The later of:
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. | 20 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.
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.
(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.
Omit “may”, substitute “must”.
Note: The heading to section 29 is altered by omitting “
Court may exclude ” and substituting “Excluding ”.
Omit “specified”, substitute “a specified *interest in”.
Omit “property”, substitute “interest”.
Omit “specified”, substitute “a specified *interest in”.
Omit “property”, substitute “interest”.
Before “property” (first occurring), insert “a specified *interest in”.
Omit “property”, substitute “interest”.
Before “property” (first occurring), insert “a specified *interest in”.
Omit “owns the property”, substitute “has the interest”.
Omit “property is not owned”, substitute “interest is not held”.
Omit “may”, substitute “must”.
Note: The heading to section 29A is altered by omitting “
Court may exclude ” and substituting “Excluding ”.
Omit “specified”, substitute “a specified *interest in”.
Repeal the paragraph, substitute:
(b) the court is satisfied that the interest is held by a person other than the *suspect and is not subject to the *effective control of the suspect.
Omit “an examination of the applicant”, substitute “examinations in relation to the restraining order”.
Repeal the subsection, substitute:
(1) A person may apply for an order under section 29 or 29A if a *restraining order that could cover property in which the person claims an *interest has been applied for, but is yet to be made.
Note: The heading to section 30 is altered by omitting “
after notice of the application for the order ” and substituting “before restraining order has been made ”.
Repeal the subsection, substitute:
(1) A person may apply for an order under section 29 or 29A if a *restraining order that covers property in which the person claims an *interest has been made.
(1A) An application under subsection (1):
(a) must be made to the court that made the *restraining order; and
(b) may be made at any time after the restraining order is made.
Note: The heading to section 31 is altered by omitting “
notice of the order ” and substituting “restraining order has been made ”.
Add “However, the DPP need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.”.
Omit “an *examination of the applicant”, substitute “*examinations in relation to the application”.
Division 3 of Part 2‑1 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Before “property” (first occurring), insert “a specified *interest in”.
Omit “the applicant’s property”, substitute “property in which the applicant has an interest”.
Repeal the paragraphs, substitute:
(c) if the forfeiture order was (or the forfeiture order applied for would be) made under section 47 or 49—the court is satisfied that the applicant’s interest in the property is neither of the following:
(i) *proceeds of *unlawful activity;
(ii) if an offence on which the order was (or would be) based is a *serious offence—an instrument of any serious offence; and
(d) if the forfeiture order was (or the forfeiture order applied for would be) made under section 48—the court is satisfied that the applicant’s interest in the property is neither proceeds nor an instrument of any of the offences to which the forfeiture order or forfeiture application relates.
Omit “property”, substitute “*interest”.
Omit “property” (wherever occurring), substitute “interest”.
Omit “the *person’s property”, substitute “property in which the person claims an *interest”.
Repeal the subsections, substitute:
After a forfeiture order has been made
(2) A person who claims an *interest in property specified in a *forfeiture order may, at any time after the forfeiture order is made, apply to the court that made the forfeiture order for an *exclusion order.
(3) However, unless the court gives leave, the person cannot apply for an *exclusion order if he or she:
(a) was notified of the application for the *forfeiture order, but did not appear at the hearing of that application; or
(b) appeared at the hearing of that application.
(4) The court may give the person leave to apply if the court is satisfied that:
(a) if paragraph (3)(a) applies—the person had a good reason for not appearing; or
(b) if paragraph (3)(b) applies—the person now has evidence relevant to the person’s application that was not available to the person at the time of the hearing; or
(c) in either case—there are other special grounds for granting the leave.
Omit “examine the applicant under Part 3‑1”, substitute “conduct *examinations in relation to the application”.
Omit “examine the applicant under Part 3‑1”, substitute “conduct *examinations in relation to the application”.
29
Subdivision C of Division 5 of Part 2‑2 (heading) Repeal the heading, substitute:
Repeal the subsection, substitute:
(1) A court that made a *forfeiture order, or that is hearing, or is to hear, an application for a forfeiture order, must make an order under subsection (2) (a
compensation order ) if:
(a) a person (the
applicant ) has applied for a compensation order; and(b) the court is satisfied that the applicant has an *interest in property specified in the forfeiture order or in the application for the forfeiture order; and
(c) the court is satisfied that a proportion of the value of the applicant’s interest was not derived or realised, directly or indirectly, from the commission of any offence; and
(d) the court is satisfied that the applicant’s interest is not an instrument of any offence; and
(e) in the case of a court that is hearing or is to hear an application for a forfeiture order—the court makes the forfeiture order.
After “Commonwealth”, insert “, once the property has vested absolutely in it,”.
Repeal the section, substitute:
Before a forfeiture order has been made
(1) A person may apply to a court for a *compensation order if an application for a *forfeiture order that could specify property in which the person claims an *interest has been made to the court, but the forfeiture order is yet to be made.
After a forfeiture order has been made
(2) A person who claims an *interest in property specified in a *forfeiture order may, at any time after the forfeiture order is made, apply to the court that made the forfeiture order for a *compensation order.
(3) However, unless the court gives leave, the person cannot apply under subsection (2) if he or she:
(a) was notified of the application for the *forfeiture order, but did not make an application under subsection (1) before the forfeiture order was made; or
(b) appeared at the hearing of the application for the forfeiture order.
(4) The court may give the person leave to apply under subsection (2) if the court is satisfied that:
(a) if paragraph (3)(a) applies—the person had a good reason for not making an application under subsection (1) before the *forfeiture order was made; or
(b) in either case:
(i) the person now has evidence relevant to the making of the *compensation order that was not available to the person at the time the forfeiture order was made; or
(ii) there are other special grounds for granting the leave.
Add “However, the DPP need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.”.
34
At the end of Subdivision C of Division 5 of Part 2‑2 Add:
An application for a *compensation order must not be heard until the *DPP has had a reasonable opportunity to conduct *examinations in relation to the application.
(1) Subdivisions B and C of Division 5 of Part 2‑2 of the
Proceeds of Crime Act 2002 , as amended by this Part, apply in relation to forfeiture orders under section 47 or 49 of that Act that relate to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.(2) Subdivisions B and C of Division 5 of Part 2‑2 of the
Proceeds of Crime Act 2002 , as amended by this Part, apply in relation to forfeiture orders under section 48 of that Act applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Before:
There are cases in which forfeited property can be recovered from the Commonwealth.
Insert:
There are cases in which compensation is payable by the Commonwealth.
Omit “the”, substitute “a”.
After “order”, insert “under section 17 or 18”.
Omit “day of the conviction”, substitute “*conviction day”.
Insert:
(1) The *DPP must, before property is forfeited under this Part, take reasonable steps to give any person who has or claims, or whom the DPP reasonably believes may have, an *interest in the property a written notice stating:
(a) the date on which the property will be forfeited under this Part unless it is excluded from forfeiture; and
(b) the effect of section 93 (which deals with *extension orders); and
(c) that the person may be able to apply for an order under one of the following sections in relation to the property:
(i) section 29 (which deals with the exclusion of property from *restraining orders);
(ii) section 94 (which deals with the exclusion of property from forfeiture);
(iii) section 94A (which deals with compensation).
(2) However, the *DPP need not give a notice to a person under subsection (1) if the person has made:
(a) an application for an *extension order in relation to the property; and
(b) an application under section 30, 31 or 94 in relation to the property.
Omit “day of”, substitute “*conviction day for”.
Repeal the paragraph, substitute:
(b) the applicant has also applied to the court under:
(i) section 30 or 31 to exclude property from the restraining order; or
(ii) section 94 to exclude the property that is covered by the restraining order from forfeiture under this Part; and
Omit “31”, substitute “30, 31 or 94”.
Omit “day of” (last occurring), substitute “conviction day for”.
Omit “31”, substitute “30, 31 or 94”.
Omit “day of”, substitute “*conviction day for”.
Omit “31”, substitute “30, 31 or 94”.
Add:
(4) If the court makes the *extension order, the *DPP must take reasonable steps to give any person who has or claims, or whom the DPP reasonably believes may have, an *interest in the property to which the order relates a written notice stating:
(a) the date on which the property will be forfeited under this Part, in accordance with the extension order, unless it is excluded from forfeiture; and
(b) the effect of subsections (2) and (3).
Omit “the *restraining”, substitute “a *restraining”.
Omit “may”, substitute “must”.
Repeal the paragraphs, substitute:
(a) a person (the
applicant ) has applied for an order under this section; and(b) the court is satisfied that the applicant has an *interest in property covered by the restraining order; and
Omit “the person”, substitute “a person”.
Before “property”, insert “applicant’s interest in the”.
Omit “defendant’s”, substitute “applicant’s”.
Add “However, the DPP need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.”.
Add:
(6) The application must not be heard until the *DPP has had a reasonable opportunity to conduct *examinations in relation to the application.
Insert:
(1) The court that made a *restraining order referred to in paragraph 92(1)(b) must make an order that complies with subsection (2) if:
(a) a person (the
applicant ) has applied for an order under this section; and(b) the court is satisfied that the applicant has an *interest in property covered, or that was at any time covered, by the restraining order; and
(c) a person has been convicted of a *serious offence to which the restraining order relates; and
(d) the court is satisfied that a proportion of the value of the applicant’s interest was not derived or realised, directly or indirectly, from the commission of any offence; and
(e) the court is satisfied that the applicant’s interest is not an *instrument of any offence.
(2) An order under this section must:
(a) specify the proportion found by the court under paragraph (1)(d); and
(b) direct the Commonwealth, once the property has vested absolutely in it, to:
(i) if the property has not been disposed of—dispose of the property; and
(ii) pay the applicant an amount equal to that proportion of the difference between the amount received from disposing of the property and the sum of any payments of the kind referred to in paragraph 100(1)(b) in connection with the forfeiture.
(3) A person who claims an *interest in property covered by a *restraining order referred to in paragraph 92(1)(b) may apply to the court that made the restraining order for an order under this section at any time.
(4) However, if the property has already been forfeited under this Part, the person cannot, unless the court gives leave, apply under subsection (3) if he or she:
(a) either:
(i) was given a notice under subsection 92A(1) in relation to the property; or
(ii) was not given such a notice because of subsection 92A(2); and
(b) did not make the application under subsection (3) before that forfeiture.
(5)
The court may give the person leave to apply if the court is satisfied that:
(a) the person had a good reason for not making the application before the forfeiture; or
(b) the person now has evidence relevant to the application that was not available before the forfeiture; or
(c) there are special grounds for granting the leave.
(6) The person must give written notice to the *DPP of both the application and the grounds on which the order is sought.
(7) The *DPP may appear and adduce evidence at the hearing of the application.
(8) The *DPP must give the applicant notice of any grounds on which it proposes to contest the application. However, the DPP need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.
(9) The application must not be heard until the *DPP has had a reasonable opportunity to conduct *examinations in relation to the application.
Omit “(1)”.
Omit “may”, substitute “must”.
Repeal the paragraph, substitute:
(b) the court is satisfied that:
(i) the applicant had an interest in the property before the forfeiture of the property; and
(ii) the applicant’s interest in the property is neither *proceeds of unlawful activity nor an *instrument of unlawful activity; and
(iii) the applicant’s interest in the property was lawfully acquired;
Omit “declaring that there is payable by the Commonwealth”, substitute “directing the Commonwealth to pay”.
Repeal the subsections.
Repeal the section, substitute:
(1) A person who claims an *interest in property that has been forfeited to the Commonwealth under section 92 may, at any time after the forfeiture, apply to the court that made the *restraining order referred to in paragraph 92(1)(b) for an order under section 102 or 103.
(2) However, unless the court gives leave, the person cannot make an application for an order under section 102 if he or she:
(a) either:
(i) was given a notice under subsection 92A(1) in relation to the property; or
(ii) was not given such a notice because of subsection 92A(2); and
(b) either:
(i) did not make an application under section 29 or 94 in relation to the property; or
(ii) made such an application and appeared at the hearing of the application.
(3) The court may give the person leave to apply if the court is satisfied that:
(a) if subparagraph (2)(b)(i) applies—the person had a good reason for not making an application under section 29 or 94; or
(b) if subparagraph (2)(b)(ii) applies—the person now has evidence relevant to the person’s application under this section that was not available at the time of the hearing; or
(c) in either case—there are other special grounds for granting the leave.
(4) The applicant must give written notice to the *DPP of both the application and the grounds on which the order is sought.
(5) The *DPP may appear and adduce evidence at the hearing of the application.
(6) The *DPP must give the applicant notice of any grounds on which it proposes to contest the application. However, the DPP need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.
(7) The application must not be heard until the *DPP has had a reasonable opportunity to conduct *examinations in relation to the application.
Omit “subparagraph 102(1)(d)(i)”, substitute “subparagraph 102(d)(i)”.
Part 2‑3 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to property covered by restraining orders made on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Omit “the person was convicted of”, substitute “a court passes sentence for”.
Paragraph 333(1)(a) of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to a person in relation to whom a court passes sentence on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
After “property”, insert “, or property suspected of being subject to the *effective control of the person,”.
Omit all the words after “control”, substitute “of the person or another person”.
Omit all the words after “provided”, substitute “to the person or another person”.
After “illegal activity” (last occurring), insert “and the other unlawful activity”.
After “property”, insert “, or property that is suspected of being subject to the *effective control of the person,”.
Omit “offence” (first occurring), substitute “*unlawful activity”.
Omit “offence”, substitute “unlawful activity”.
Omit “one or both of subsections (2) and (3) apply”, substitute “one or more of subsections (2), (2A) or (3) apply”.
Insert:
(2A) The *penalty amount may be increased if:
(a) the penalty amount was reduced under section 130 to take account of a forfeiture of property or a proposed *forfeiture order against property; and
(b) one of the following orders has been made:
(i) an order under section 73 or 94 excluding an *interest in the property from forfeiture;
(ii) an order under section 77 or 94A (which deal with compensation) directing the Commonwealth to pay an amount to a person in relation to a proportion of an interest in the property that was not derived or realised from the commission of any offence;
(iii) an order under section 102 (which deals with the recovery of property) in relation to an interest in the property.
The amount of the increase is such amount as the court considers appropriate.
(2B) In determining the amount of the increase for the purposes of subsection (2A), the court may have regard to:
(a) if subparagraph (2A)(b)(i) or (iii) applies—the value of the interest, as at the time the order was made; and
(b) if subparagraph (2A)(b)(ii) applies—the amount that the Commonwealth was required to pay; and
(c) any other matter the court considers relevant.
Division 2 of Part 2‑4 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to pecuniary penalty orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Add:
(6) Despite subsections (2) and (3), the court hearing the application may give leave for the application to be made after the time before which an application would otherwise need to be made under those subsections if it is satisfied that it would be in the interests of justice to allow the application.
Omit “, and any affidavit supporting the application,”.
Repeal the subsections, substitute:
(3) The *DPP must give a copy of any affidavit supporting the application to a person who would be subject to the *pecuniary penalty order (if it were made) within a reasonable time before the hearing of the application.
Division 3 of Part 2‑4 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to applications made on or after the commencement of this item for pecuniary penalty orders, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Repeal the subsection, substitute:
(1) Subject to subsections (2) and (3), a *pecuniary penalty order made in relation to a person’s conviction of an offence is discharged if:
(a) the person’s conviction of any of the offences to which the order relates is subsequently *quashed; and
(b) the *DPP does not, within 14 days after the conviction is quashed, apply to the court that made the order for the order to be confirmed or varied.
Omit “However, unless”, substitute “Unless”.
Insert:
(2A) To avoid doubt, the *DPP may make an application to confirm the order and an application to vary the order, and the court may hear both applications at the same time.
Repeal the subsection, substitute:
(3) A *pecuniary penalty order made in relation to a person’s conviction of an offence is discharged if:
(a) the person’s conviction of the offence is subsequently *quashed; and
(b) the order does not relate to any other offence; and
(c) the offence is not a *serious offence.
After “confirmation” (wherever occurring), insert “or variation”.
Note: The heading to section 147 is altered by inserting “
or variation ” after “confirmation ”.
After “confirmation”, insert “or variation”.
Note: The heading to section 148 is altered by inserting “
or variation ” after “confirmation ”.
Omit “the offence”, substitute “any of the offences to which the order relates”.
Omit “that offence”, substitute “any of those offences”.
Omit “the conviction”, substitute “such a conviction”.
Insert:
(1) The court may vary the *pecuniary penalty order by reducing the *penalty amount by an amount worked out under subsection (2) if the court is satisfied that:
(a) the order relates to more than one offence; and
(b) when the *DPP applied for the order, the court could have made the order in relation to at least one of the offences that has not been *quashed.
(2) The amount is an amount equal to so much of the *penalty amount as the court reasonably believes to be attributable to a person’s conviction of an offence:
(a) to which the *pecuniary penalty order relates; and
(b) that was *quashed.
(3) In determining the amount by which the *penalty amount should be reduced under subsection (2), the court may have regard to:
(a) the transcripts and evidence referred to in subsection 148(2); and
(b) the transcript of, and the evidence given in, any proceedings relating to the application for the *pecuniary penalty order or any application to vary the order; and
(c) any other matter that the court considers relevant.
After “149,”, insert “or varies the order under section 149A,”.
Note: The heading to section 150 is altered by inserting “
or variation ” after “confirmation ”.
After “confirm”, insert “or vary”.
Note: The heading to section 181 is altered by omitting “
for confirmation of forfeiture ” and substituting “relating to quashing of convictions ”.
Division 5 of Part 2‑4 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to convictions quashed on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Repeal the paragraph, substitute:
(a) the order would, if made, be one of the following orders relating to an offence of which a person has been convicted:
(i) a *restraining order under section 17;
(ii) a *forfeiture order under section 48;
(iii) a *pecuniary penalty order under subparagraph 116(1)(b)(i); and
After “magistrate”, insert “(the
convicting magistrate )”.
Omit “the magistrate”, substitute “a magistrate of the same court as the convicting magistrate”.
Subsection 335(6) of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to persons convicted before a magistrate on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Repeal the paragraph, substitute:
(b) a person who is a *suspect in relation to the restraining order; or
Omit “affairs”, substitute “*affairs”.
Omit “(including the nature and location of any property)”.
Section 180 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Insert:
(1) If an application for an order under section 73 or 94 for an *interest in property to be excluded from forfeiture is made, the court to which the application is made may make an order (an
examination order ) for the *examination of any person including:
(a) a person who has or claims an interest in the property; or
(b) the spouse or *de facto partner of a person referred to in paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
(1) If an application for an order under section 77 or 94A (which deal with compensation) is made in relation to an *interest in property that has been or may be forfeited, the court to which the application is made may make an order (an
examination order ) for the *examination of any person including:
(a) a person who has or claims an *interest in the property; or
(b) the spouse or *de facto partner of a person referred to in paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
(1) If an application for an order under section 102 (which deals with the recovery of property) is made under section 104 in relation to forfeited property, the court to which the application is made may make an order (an
examination order ) for the *examination of any person including:
(a) a person who has or claims an *interest in the property; or
(b) the spouse or *de facto partner of a person referred to in paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
(1) If a *confiscation order has been made but not satisfied, the court that made the confiscation order may make an order (an
examination order ) for the *examination of any person including:
(a) a person against whom the confiscation order was made; or
(b) the spouse or *de facto partner of a person referred to in paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when proceedings relating to the enforcement of the *confiscation order are finally determined, withdrawn or otherwise disposed of.
(1) If a *restraining order is revoked under section 44 (which deals with giving security to revoke etc. a restraining order), the court that revoked the restraining order may make an order (an
examination order ) for the *examination of any person including:
(a) a person whose property was, or a person who had an *interest in property that was, the subject of the restraining order; or
(b) the spouse or *de facto partner of a person referred to in paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when the *restraining order would have ceased to have effect, assuming it had not been revoked under section 44.
(1) Sections 180A and 180B of the
Proceeds of Crime Act 2002 , as inserted by this Part, apply in relation to applications for orders under section 73 or 77 of that Act:
(a) if the forfeiture order to which the application relates was or would be made under section 47 or 49 of that Act—that relate to restraining orders applied for on or after the commencement of this item; and
(b) if the forfeiture order to which the application relates was or would be made under section 48 of that Act—that relate to forfeiture orders applied for on or after the commencement of this item;
whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
(2) Sections 180A and 180B of the
Proceeds of Crime Act 2002 , as inserted by this Part, apply in relation to applications for orders under section 94 or 94A of that Act that relate to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.(3) Sections 180C and 180E of the
Proceeds of Crime Act 2002 , as inserted by this Part, apply in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.(4) Section 180D of the
Proceeds of Crime Act 2002 , as inserted by this Part, applies in relation to confiscation orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Omit “affairs”, substitute “*affairs”.
Omit “(including the nature and location of any property)”.
Section 181 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to convictions quashed on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Before “An”, insert “(1)”.
Add:
(2) The court must consider an application for an *examination order without notice having been given to any person if the *DPP requests the court to do so.
Omit “affairs” (first occurring), substitute “*affairs”.
Insert:
(aa) if the examination relates to an application for exclusion from forfeiture and the person is no longer a person whose affairs can, under section 180A, be subject to the examination; or
(ab) if the examination relates to an application for an order under section 77 or 94A and the person is no longer a person whose affairs can, under section 180B, be subject to the examination; or
(ac) if the examination relates to an application for an order under section 102 and the person is no longer a person whose affairs can, under section 180C, be subject to the examination; or
(ad) if the examination relates to a *confiscation order that has not been satisfied and the person is no longer a person whose affairs can, under section 180D, be subject to the examination; or
(ae) if the examination relates to a *restraining order that has been revoked and the person is no longer a person whose affairs can, under section 180E, be subject to the examination; or
Repeal the paragraph, substitute:
(b) is relevant to the *affairs of a person whose affairs can, under section 180, 180A, 180B, 180C, 180D, 180E or 181, be subject to the examination.
Sections 182 and 187 of the
Proceeds of Crime Act 2002 , as amended by this Part, apply in relation to examination orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Omit “6 months or 30 penalty units”, substitute “2 years or 120 penalty units”.
Omit “6 months or 30 penalty units”, substitute “2 years or 120 penalty units”.
Insert:
A person commits an offence if:
(a) the person is attending an *examination; and
(b) the person gives an answer or produces a document in the examination; and
(c) the answer or document:
(i) is false or misleading; or
(ii) omits any matter or thing without which it is misleading.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Omit “affairs”, substitute “*affairs”.
Insert:
affairs of a person includes, but is not limited to:
(a) the nature and location of property of the person or property in which the person has an interest; and
(b) any activities of the person that are, or may be, relevant to whether or not the person has engaged in unlawful activity of a kind relevant to the making of an order under this Act.
After “180”, insert “, 180A, 180B, 180C, 180D, 180E”.
Insert:
(ca) a document relevant to identifying, locating or quantifying property suspected of being:
(i) proceeds of an indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern; or
(ii) an instrument of a serious offence;
whether or not the identity of the person who committed the offence is known;
Omit “such property”, substitute “property referred to in paragraph (c) or (ca)”.
After “(c),”, insert “(ca),”.
After “(5)(c)(ii)”, insert “or paragraph (5)(ca)”.
Omit “subparagraph” (second occurring), substitute “provision”.
Insert:
(ca) specify the form and manner in which those documents are to be produced; and
Repeal the subsection, substitute:
(2) The time or times specified under paragraph (1)(c) must be:
(a) at least 14 days after the day on which the *production order is made; or
(b) if the magistrate who makes the production order is satisfied that it is appropriate, having regard to the matters specified in subsection (3), to specify an earlier time—at least 3 days after the day on which the production order is made.
(3) The matters to which the magistrate must have regard for the purposes of deciding whether an earlier time is appropriate under paragraph (2)(b) are:
(a) the urgency of the situation; and
(b) any hardship that may be caused to the person required by the *production order to produce documents or make documents available.
Add:
(3) It is a defence to an offence against subsection (1) if:
(a) the person fails to comply with the *production order only because the person does not produce one or more documents specified in the order within the time specified in the order; and
(b) the person took all reasonable steps to produce the document or documents within that time; and
(c) the person produces the document or documents as soon as practicable after that time.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the
Criminal Code ).
Part 3‑2 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to production orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
After “is”, insert “or was”.
Omit “such”.
After “hold”, insert “or held”.
Insert:
(ea) determining whether a *stored value card was issued to a specified person by a financial institution;
(eb) details of transactions made using such a card over a specified period of up to 6 months;
Add:
; or (f) the Commissioner of Taxation; or
(g) the Chief Executive Officer of Customs; or
(h) the Chairperson of the Australian Securities and Investments Commission.
Before “The”, insert “(1)”.
After “provided”, insert “, having regard to the record‑keeping capabilities of the financial institution (to the extent known to the officer)”.
Repeal the paragraph, substitute:
(e) specify that the information or documents must be provided no later than:
(i) 14 days after the giving of the notice; or
(ii) if the officer giving the notice believes that it is appropriate, having regard to the matters specified in subsection (2), to specify an earlier day that is at least 3 days after the giving of the notice—that earlier day; and
Add:
(2) The matters to which the officer giving the notice must have regard in deciding whether to specify an earlier day under subparagraph (1)(e)(ii) are:
(a) the urgency of the situation; and
(b) any hardship that may be caused to the *financial institution required by the notice to provide the information or documents.
Before “A”, insert “(1)”.
Add:
(2) It is a defence to an offence against subsection (1) if:
(a) the person fails to comply with the notice only because the person does not provide the information or a document within the period specified in the notice; and
(b) the person took all reasonable steps to provide the information or document within that period; and
(c) the person provides the information or document as soon as practicable after the end of that period.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the
Criminal Code ).
Part 3‑3 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to notices given under section 213 of that Act on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Repeal the subsection, substitute:
(1) A judge of a court of a State or Territory that has jurisdiction to deal with criminal matters on indictment may make an order (a
monitoring order ) that a *financial institution provide information about transactions:
(a) conducted during a particular period through an *account held by a particular person with the institution; or
(b) made using a *stored value card issued to a particular person by a financial institution.
Omit “in respect of whose *account the information is sought”, substitute “who holds the *account or to whom the *stored value card was issued”.
After “account”, insert “or card”.
Omit “in question”, substitute “or to whom the card was issued”.
Repeal the paragraph, substitute:
(a) specify the name or names:
(i) in which the *account is believed to be held; or
(ii) of the person to whom the *stored value card was issued; and
Part 3‑4 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to monitoring orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Repeal the definition, substitute:
account means any facility or arrangement through which a *financial institution accepts deposits or allows withdrawals and includes:
(a) a facility or arrangement for:
(i) a *fixed term deposit; or
(ii) a safety deposit box; and
(b) a credit card account; and
(c) a loan account (other than a credit card account); and
(d) an account held in the form of units in:
(i) a cash management trust; or
(ii) a trust of a kind prescribed by the regulations; and
(e) a closed account.
To avoid doubt, it is immaterial whether:
(f) an account has a nil balance; or
(g) any transactions have been allowed in relation to an account.
Insert:
stored value card means a portable device that is capable of storing monetary value in a form other than physical currency, or as otherwise prescribed by the regulations.
Insert:
(ca) an order directing the *suspect in relation to the restraining order to give a sworn statement to a specified person, within a specified period, setting out all of his or her *interests in property, and his or her liabilities;
After “owner” (first occurring), insert “or a previous owner”.
After “owner” (second occurring), insert “or previous owner”.
Insert:
(da) if the court is satisfied that there are reasonable grounds to suspect that a person (other than the owner or a previous owner) has information relevant to identifying, locating or quantifying the property—an order directing the person to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property;
After “restraining order”, insert “, or who has *effective control of property covered by a restraining order,”.
Insert:
(3A) Despite subsection (3), the court must consider an application for an ancillary order without notice having been given under that subsection if:
(a) the *DPP requests the court to do so; and
(b) the *restraining order to which the application relates was considered, in accordance with subsection 26(4), without notice having been given.
Insert:
(4A) The court may, at any time before finally determining the application, direct the *DPP to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
(4B) If the court makes the ancillary order after a request under subsection (3A), the *DPP must give written notice to any person whom the DPP reasonably believes may be affected by the order.
Insert:
(1) A person is not excused from giving a sworn statement under paragraph 39(1)(ca), (d) or (da) on the grounds that to do so would tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of a natural person, a sworn statement is not admissible in civil or criminal proceedings against the person who made the statement except:
(a) in criminal proceedings for giving false or misleading information; or
(b) in proceedings on an application under this Act; or
(c) in proceedings ancillary to an application under this Act; or
(d) in proceedings for enforcement of a *confiscation order.
(1) A person may apply to the court that made an ancillary order under section 39 to revoke the order if:
(a) the person is affected by the order; and
(b) the application for the ancillary order was heard without notice having been given under subsection 39(3) following a request under subsection 39(3A).
(2) The application must be made within 14 days after the person was notified of the ancillary order.
(3) The applicant must give written notice of the application, and the grounds on which the revocation is sought, to any person who was entitled to make the application for the ancillary order (see subsection 39(2)).
(4) The effect of the ancillary order is stayed until the court determines the application.
(5) The court may revoke the ancillary order on application under subsection (1) if it considers it appropriate to do so.
(6) The court may have regard to any matter it considers appropriate in determining the application.
(7) If:
(a) the ancillary order directed a person to do a thing within a particular period; and
(b) an application is made to revoke the order under this section;
the court may, if it considers it appropriate to do so, vary the order to extend that period by a specified period.
After “restraining order”, insert “, or who has effective control of property covered by a restraining order,”.
Division 5 of Part 2‑1 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Omit “39(1)(d)”, substitute “39(1)(ca), (d) or (da)”.
Omit “If the application relates to a person’s conviction of an *indictable offence, the court”, substitute “The court”.
Repeal the paragraph, substitute:
(a) the transcript of any proceeding against the person for an offence that constitutes *unlawful activity; and
Section 64 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to forfeiture orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Omit “If the application relates to a person’s conviction of an *indictable offence, the court”, substitute “The court”.
Repeal the paragraph, substitute:
(a) the transcript of any proceeding against the person for an offence that constitutes *unlawful activity; and
Section 138 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to pecuniary penalty orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Insert:
Scope
(1) This section applies if direct evidence by a person (the
absent witness ) of a matter would be admissible in a proceeding before a court:
(a) on an application for an order under this Act; or
(b) ancillary to such an application; or
(c) for the enforcement of an order made under this Act.
Admissibility of statements made at examination
(2) A statement that the absent witness made at an *examination of the absent witness and that tends to establish the matter is admissible in the proceeding as evidence of the matter:
(a) if it appears to the court that:
(i) the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or
(ii) the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure his or her attendance; or
(iii) all reasonable steps have been taken to find the absent witness but he or she cannot be found; or
(b) if it does not so appear to the court—unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.
Rules that apply if statement admitted
(3) The rules in subsections (4) to (6) apply if evidence of a statement is admitted under subsection (2).
(4) In deciding how much weight (if any) to give to the statement as evidence of a matter, regard is to be had to:
(a) how long after the matters to which it related occurred the statement was made; and
(b) any reason the absent witness may have had for concealing or misrepresenting a material matter; and
(c) any other circumstances from which it is reasonable to draw an inference about how accurate the statement is.
(5) If the absent witness is not called as a witness in the proceeding:
(a) evidence that would, if the absent witness had been so called, have been admissible in the proceeding for the purpose of destroying or supporting his or her credibility is so admissible; and
(b) evidence is admissible to show that the statement is inconsistent with another statement that the absent witness has made at any time.
(6) However, evidence of a matter is not admissible under this section if, had the absent witness been called as a witness in the proceeding and denied the matter in cross‑examination, evidence of the matter would not have been admissible if adduced by the cross‑examining party.
Adducing party to give notice
(1) A party (the
adducing party ) to a proceeding referred to in subsection 318A(1) may, not less than 14 days before the first day of the hearing of the proceeding, give another party to the proceeding written notice that the adducing party:
(a) will apply to have admitted in evidence in the proceeding specified statements made at an *examination; and
(b) for that purpose, will apply to have evidence of those statements admitted in the proceeding.
(2) The notice must set out, or be accompanied by a written record of, the specified statements.
Other party may object to admission of specified statements
(3) The other party may, within 14 days after a notice is given under subsection (1), give the adducing party a written notice (an
objection notice ):
(a) stating that the other party objects to specified statements being admitted in evidence in the proceeding; and
(b) specifying, in relation to each of those statements, the grounds of objection.
(4) The period referred to in subsection (3) may be extended by the court before which the proceeding is to be heard or by agreement between the parties concerned.
Effect of giving objection notice
(5) On receiving an objection notice, the adducing party must give to the court a copy of:
(a) the notice under subsection (1) and any record under subsection (2); and
(b) the objection notice.
(6) If subsection (5) is complied with, the court may either:
(a) determine the objections as a preliminary point before the hearing of the proceeding begins; or
(b) defer determination of the objections until the hearing.
Effect of not giving objection notice
(7) If a notice has been given in accordance with subsections (1) and (2), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceeding, unless:
(a) the other party has, in accordance with subsection (3), objected to the statement being so admitted; or
(b) the court gives the other party leave to object to the statement being so admitted.
Sections 318A and 318B of the
Proceeds of Crime Act 2002 , as inserted by this Part, apply in relation to statements made at an examination on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Omit “*indictable”.
Note: The heading to section 19 is altered by omitting “
people suspected of committing ” and substituting “property suspected of being proceeds of ”.
Section 19 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Repeal the subsection.
Insert:
(4A) In determining whether or not property is subject to the
effective control of a person, the effect of any order made in relation to the property under this Act is to be disregarded.
Add:
(7) To avoid doubt, property may be subject to the
effective control of more than one person.
Before “*restraining”, insert “*production order, *search warrant,”.
After “*freezing order”, insert “, *production order, *search warrant”.
Repeal the subsection.
Section 337A of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to applications referred to in paragraph 337A(1)(a) of that Act made on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
176
Section 338 (definition of discretionary trust ) Repeal the definition.
177
Section 338 (paragraph (b) of the definition of evidential material ) After “offence”, insert “, a *foreign indictable offence or an *indictable offence of Commonwealth concern”.
The amendment made by item 177 applies in relation to search warrants applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
179
Section 338 (after paragraph (a) of the definition of serious offence ) Insert:
(aa) unlawful conduct by a person that consists of an indictable offence (the
3 year offence ) punishable by imprisonment for 3 or more years and one or more other indictable offences that, taken together with the 3 year offence, constitute a series of offences:
(i) that are founded on the same facts or are of a similar character; and
(ii) that cause, or are intended to cause, a benefit to the value of at least $10,000 for that person or another person, or a loss to the Commonwealth or another person of at least $10,000; or
180
Section 338 (paragraph (a) of the definition of tainted property ) After “offence”, insert “, a *foreign indictable offence or an *indictable offence of Commonwealth concern”.
The amendment made by item 180 applies in relation to search warrants applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
182
Section 338 (paragraph (b) of the definition of unlawful activity ) Omit “that may be dealt with on indictment (even if it may also be dealt with as a summary offence in some circumstances)”.
Add:
; or (h) a new trial is ordered in relation to the offence.
Note: The heading to section 49 is altered by omitting “
conduct constituting ” and substituting “property suspected of being proceeds of ”.
Section 45 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Before “The court”, insert “(1)”.
Add:
(2) For the purposes of paragraphs (1)(a) and (b), the requirement in paragraph 47(1)(b) or 49(1)(b) (as the case requires) is taken to be satisfied.
Section 84 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to applications made as referred to in paragraph 81(1)(b) of that Act on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Omit “84(a)”, substitute “84(1)(a)”.
Omit “84(b)”, substitute “84(1)(b)”.
Before “The court”, insert “(1)”.
Add:
(2) For the purposes of paragraphs (1)(a) and (b), the requirement in paragraph 47(1)(b) or 49(1)(b) (as the case requires) is taken to be satisfied.
Section 110 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to applications made as referred to in paragraph 107(1)(c) of that Act on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.
Omit “110(a)”, substitute “110(1)(a)”.
Omit “110(b)”, substitute “110(1)(b)”.
Omit “has an interest in the property that is the subject of the proceeding”, substitute “would be affected by the order”.
Repeal the paragraph, substitute:
(b) if the order is an order under section 47 (forfeiture orders relating to conduct constituting serious offences) or 49 (forfeiture orders relating to property suspected of proceeds of indictable offences etc.)—before the end of the period of 6 months referred to in paragraph 47(1)(b) or 49(1)(b) (as the case requires).
Section 316 of the
Proceeds of Crime Act 2002 , as amended by this Part, applies in relation to proceedings under Chapter 2 of that Act, whether commenced before, on or after the commencement of this item.
Repeal the subsection.
Omit “(1) The following are purposes of the *Confiscated Assets Account in respect of *suspended funds:”, substitute “The following are purposes of the *Confiscated Assets Account:”.
Repeal the subsection.
Omit “in a particular financial year”.
Repeal the section.
202
Section 338 (definition of distributable funds ) Repeal the definition.
Repeal the definition.
Add:
; and (h) amounts paid to the Commonwealth in settlement of proceedings connected with this Act.
Paragraph 296(1)(h) of the
Proceeds of Crime Act 2002 (as amended by this Division) applies to amounts paid to the Commonwealth on or after the commencement of this Division in settlement of proceedings connected with this Act, whether the settlements occurred before, on or after that commencement.
Add:
(4) For the purposes of an order described in paragraph (2)(a), an amount may be specified wholly or partly by reference to a specified proportion of the difference between:
(a) the amount received from disposing of the combined interests specified in the *forfeiture order; and
(b) the sum of any payments of the kind referred to in paragraph 70(1)(b) in connection with the forfeiture order.
Insert:
(fa) making any payments the Commonwealth is directed to make by an order under paragraph 55(2)(a), section 72, paragraph 73(2)(d), section 77 or 94A, subparagraph 102(d)(ii) or section 179L;
Repeal the paragraph, substitute:
(g) making any payments under an arrangement under paragraph 88(1)(b) or subsection 289(2);
Paragraphs 297(1)(fa) and (g) of the
Proceeds of Crime Act 2002 (as amended by this Division) apply in relation to orders and arrangements made on or after the commencement of this Division.
Insert:
(yb) decisions of the DPP to apply for an order under the
Proceeds of Crime Act 2002 ;
The amendment made by item 210 applies in relation to decisions made on or after the commencement of this item.
After “property”, insert “(other than an encumbrance in which the person referred to paragraph (1)(a) has an *interest)”.
After “property”, insert “(other than an encumbrance in which the person referred to in paragraph (1)(a) has an *interest)”.
Repeal the heading, substitute:
After “property”, insert “(other than an encumbrance in which the person who is liable to pay the amount has an *interest)”.
Repeal the heading.
After “property”, insert “(other than an encumbrance in which the person who is liable to pay the amount owing under subsection 293(3) has an *interest)”.
After “property”, insert “(other than an encumbrance in which the person convicted of the offence has an *interest)”.
Sections 142, 169, 302, 302C and 307 of the
Proceeds of Crime Act 2002 , as amended by this Part, apply in relation to charges created on or after the commencement of this item.
Insert:
A court may hear and determine 2 or more applications under this Act at the same time.
Section 315A of the
Proceeds of Crime Act 2002 , as inserted by this Part, applies in relation to applications made on or after the commencement of this item.
Omit “3ZW”, substitute “3ZQZ”.
Omit “3ZW” (wherever occurring), substitute “3ZQZ”.
Repeal the subsection.
Repeal the paragraph, substitute:
(b) the Commissioner is satisfied that the data is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings;
Repeal the subsections.
Note: The heading to section 3UF is replaced by the heading “
Seizure notices ”.
Repeal the subsection.
Repeal the section.
Omit “sections 3UF and 3UG”, substitute “section 3UF”.
Insert:
Use and sharing of thing or document by constable or Commonwealth officer
(1) A constable or Commonwealth officer may use, or make available to another constable or Commonwealth officer to use, a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for the purpose of any or all of the following if it is necessary to do so for that purpose:
(a) preventing, investigating or prosecuting an offence;
(b) proceedings under the
Proceeds of Crime Act 1987 or theProceeds of Crime Act 2002 ;(c) proceedings under a corresponding law (within the meaning of either of the Acts mentioned in paragraph (b)) that relate to a State offence that has a federal aspect;
(d) proceedings for the forfeiture of the thing under a law of the Commonwealth;
(e) 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, Division 104 or 105 of the
Criminal Code ;(f) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part;
(g) investigating or resolving an AFP conduct or practices issue (within the meaning of the
Australian Federal Police Act 1979 ) under Part V of that Act;(h) investigating or resolving a complaint under the
Ombudsman Act 1976 or thePrivacy Act 1988 ;(i) investigating or inquiring into a corruption issue under the
Law Enforcement Integrity Commissioner Act 2006 ;(j) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (f), (g), (h) or (i);
(k) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection;
(l) the performance of the functions of the Australian Federal Police under section 8 of the
Australian Federal Police Act 1979 .(2) A constable or Commonwealth officer may use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any other use that is required or authorised by or under a law of a State or a Territory.
(3) A constable or Commonwealth officer may make available to another constable or Commonwealth officer to use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.
(4) To avoid doubt, this section does not limit any other law of the Commonwealth that:
(a) requires or authorises the use of a document or other thing; or
(b) requires or authorises the making available (however described) of a document or other thing.
Sharing thing or document for use by State, Territory or foreign agency
(5) A constable or Commonwealth officer may make a thing seized under this Part, or the original or a copy of a document produced under Division 4B, available to:
(a) a State or Territory law enforcement agency; or
(b) an agency that has responsibility for:
(i) law enforcement in a foreign country; or
(ii) intelligence gathering for a foreign country; or
(iii) the security of a foreign country;
to be used by that agency for a purpose mentioned in subsection (1), (2) or (3) and the purpose of any or all of the following (but not for any other purpose):
(c) preventing, investigating or prosecuting an offence against a law of a State or Territory;
(d) proceedings under a corresponding law (within the meaning of the
Proceeds of Crime Act 1987 or theProceeds of Crime Act 2002 );(e) proceedings for the forfeiture of the thing under a law of a State or Territory;
(f) deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs (1)(a) to (l) (inclusive), subsection (2) or (3) or paragraph (c), (d) or (e) of this subsection.
Ministerial arrangements for sharing
(6) This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:
(a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part and originals and copies of documents produced under Division 4B; and
(b) the disposal by the agency of such things, originals and copies when they are no longer of use to that agency for those purposes.
Note: This subsection does not empower the Minister to make such an arrangement.
Definition
(7) In this section:
State or Territory law enforcement agency means:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission constituted by the
New South Wales Crime Commission Act 1985 of New South Wales; or(c) the Independent Commission Against Corruption constituted by the
Independent Commission Against Corruption Act 1988 of New South Wales; or(d) the Police Integrity Commission constituted by the
Police Integrity Commission Act 1996 of New South Wales; or(e) the Office of Police Integrity continued by the
Police Integrity Act 2008 of Victoria; or(f) the Crime and Misconduct Commission of Queensland; or
(g) the Corruption and Crime Commission established by the
Corruption and Crime Commission Act 2003 of Western Australia.
(1) This section applies to electronic equipment seized under this Part or moved from warrant premises under section 3K.
(2) The electronic equipment may be operated at any location after it has been seized or moved, for the purpose of determining whether data that is evidential material is held on or accessible from the electronic equipment, and obtaining access to such data.
(3) The data referred to in subsection (2) includes, but is not limited to, the following:
(a) data held on the electronic equipment, including data held on the electronic equipment when operated under this section that was not held on the electronic equipment at the time the electronic equipment was seized;
(b) data not held on the electronic equipment but accessible by using it, including data that was not accessible at the time the electronic equipment was seized.
(4) If the electronic equipment was seized under a warrant or moved under section 3K, the electronic equipment may be operated before or after the expiry of the warrant.
(5) This section does not limit the operation of other provisions of this Part that relate to dealing with items seized under this Part or moved under section 3K.
Note: For example, this section does not affect the operation of the time limits in section 3K on examination or processing of a thing removed under that section from warrant premises.
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in section 3ZQV:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or data access to which was obtained from the operation of the equipment; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.
(4) If the equipment was seized or moved from premises, then, in determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
(5) Compensation is payable out of money appropriated by the Parliament.
(6) For the purposes of subsection (1):
damage , in relation to data, includes damage by erasure of data or addition of other data.
(1) If the Commissioner is satisfied that a thing seized under Division 2 or 4 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings, the Commissioner must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.
(2) However, the Commissioner does not have to take those steps if:
(a) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(b) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
(1) If:
(a) the Commissioner is satisfied that a thing seized under Division 3 is not required (or is no longer required) for a purpose mentioned in section 3ZQU or for other judicial or administrative review proceedings; or
(b) the period of 60 days after the thing’s seizure ends;
the Commissioner must take reasonable steps to return the thing to the person from whom it was seized or to the owner if that person is not entitled to possess it.
(2) However, the Commissioner does not have to take those steps if:
(a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or
(b) the thing may be retained because of an order under section 3ZQZ; or
(c) the thing may otherwise be retained, destroyed or disposed of under a law, or an order of a court or tribunal, of the Commonwealth or of a State or a Territory; or
(d) the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.
(1) The Commissioner may apply to a magistrate for an order under this section that a thing seized under Division 3 may be retained for a period if the application is made:
(a) that the reporting entity is or has been required to do so; or
(b) that the information has been given or the document has been produced; or
(c) any other information from which the person to whom the information is disclosed could reasonably be expected to infer that:
(i) the reporting entity had been required to give the first‑mentioned information or produce the document; or
(ii) the first‑mentioned information had been given; or
(iii) the document had been produced.
Subsection 123(3) of the
Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 , as amended by this Part, applies in relation to requirements made under subsection 49(1) of that Act before, on or after the commencement of this item.
Add:
(1) This section applies if:
(a) in proceedings for a federal offence in the Trial Division of the Supreme Court of Victoria or in the County Court of Victoria, a question arises whether the accused is fit to stand trial; and
(b) a jury finds that the accused is unfit.
Right to appeal
(2) The accused may appeal to the Court of Appeal of Victoria against the finding:
(a) on a ground involving only one or more questions of law alone; or
(b) on a ground involving one or more questions of fact alone, or one or more questions of mixed law and fact, if the judge before whom the accused came for trial certifies the ground is fit for appeal; or
(c) on any ground if the Court of Appeal gives leave.
Decision on appeal
(3) The Court of Appeal must allow the appeal if the court thinks that:
(a) the finding should be set aside because it is unreasonable or cannot be supported having regard to the evidence; or
(b) the order of the Supreme Court or County Court giving effect to the finding should be set aside because of a wrong decision on a question of law; or
(c) there was a miscarriage of justice.
(4) Otherwise, the Court of Appeal must dismiss the appeal.
(5) Despite subsection (3), the Court of Appeal may dismiss the appeal if the Court of Appeal thinks that no substantial miscarriage of justice has occurred.
Consequences if appeal allowed
(6) If the Court of Appeal allows the appeal:
(a) the accused may be tried for the federal offence; and
(b) the Court of Appeal may make orders for the custody or bail of the accused.
Rules of court
(7) Rules of court for the Court of Appeal of Victoria may make provision relating to appeals under subsection (2) and proceedings relating to orders under paragraph (6)(b).
Relationship with the rest of this Division
(8) This Division has effect subject to this section.
2
Application of section 20BI of the Crimes Act 1914 Section 20BI of the
Crimes Act 1914 (as amended by this Schedule) applies to findings made before, on or after the commencement of that section.
(1) If appeal proceedings were started under section 570C of the
Crimes Act 1958 of Victoria before the repeal of that section but those proceedings (including any proceedings for orders under subsection 570C(2) of that Act following the allowing of the appeal) were not completed before that repeal:
(a) section 20BI of the
Crimes Act 1914 does not apply in relation to the finding that was the subject of the appeal proceedings, despite item 2; and(b) the following provisions of the
Crimes Act 1958 of Victoria, as in force immediately before their repeal by theCriminal Procedure Act 2009 of Victoria, continue to apply (as laws of the Commonwealth) in relation to the finding despite that repeal:
(i) section 570C;
(ii) section 570A as applied by section 570C;
(iii) other provisions so far as they relate to section 570C or section 570A as applied by section 570C.
Note 1: Before their repeal those provisions applied because of section 68 of the
Judiciary Act 1903 .Note 2: Section 570C of the
Crimes Act 1958 of Victoria provided for appeals to the Court of Appeal of Victoria from a finding by a jury in proceedings in the Trial Division of the Supreme Court of Victoria or in the County Court of Victoria that the accused was not fit to stand trial.Note 3: Section 570C of the
Crimes Act 1958 of Victoria provided for appeals by applying section 570A of that Act with modifications. Other provisions of that Act (such as section 570D and Division 3 of Part VI) related to appeals to the Court of Appeal (including appeals under section 570C of that Act).(2) An instrument in force for the purposes of any of those provisions immediately before the repeal described in paragraph (1)(b) of the provision continues in force (despite that repeal) for the purposes of that provision as it continues to apply because of that paragraph.
Insert:
constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State.
2
Subsection 4(1) (at the end of the definition of eligible Commonwealth Board member ) Add:
; (f) the Commissioner of Taxation.
Insert:
in contempt of the ACC has the meaning given by section 34A.
4
Subsection 4(1) (definition of intelligence operation ) Repeal the definition, substitute:
intelligence operation means an operation that is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to federally relevant criminal activity, but that may involve the investigation of matters relating to federally relevant criminal activity.
Insert:
Ombudsman means the Commonwealth Ombudsman.
6
Subsection 4A(6) (definition of intelligence operation ) Repeal the definition, substitute:
intelligence operation means an operation that is primarily directed towards the collection, correlation, analysis or dissemination of criminal information and intelligence relating to relevant criminal activity, but that may involve the investigation of matters relating to relevant criminal activity.
Add:
; (i) the Commissioner of Taxation.
Omit “3 days”, substitute “7 days”.
Omit “summons; or”, substitute “summons.”.
Repeal the paragraph.
Repeal the subsection, substitute:
(8) A failure to comply with section 29A, so far as section 29A relates to a summons under subsection (1) of this section, does not affect the validity of the summons.
Omit “notice; or”, substitute “notice.”.
Repeal the paragraph.
Repeal the subsection, substitute:
(5) A failure to comply with section 29A, so far as section 29A relates to a notice under subsection (1) of this section, does not affect the validity of the notice.
Add:
; or (f) to the Ombudsman for the purpose of making a complaint under the
Ombudsman Act 1976 ; or(g) to the Australian Law Enforcement Integrity Commission for the purpose of referring to the Integrity Commissioner, under the
Law Enforcement Integrity Commissioner Act 2006 , an allegation or information that raises a corruption issue.
Omit “giving legal advice”, substitute “giving or obtaining legal advice or legal representation”.
Add:
; or (d) to the Ombudsman for the purpose of making a complaint under the
Ombudsman Act 1976 ; or(e) to the Australian Law Enforcement Integrity Commission for the purpose of referring to the Integrity Commissioner, under the
Law Enforcement Integrity Commissioner Act 2006 , an allegation or information that raises a corruption issue.
Insert:
A person is
in contempt of the ACC if he or she:
(a) when appearing as a witness at an examination before an examiner:
(i) refuses or fails to take an oath or affirmation when required to do so under section 28; or
(ii) refuses or fails to answer a question that he or she is required to answer by the examiner; or
(iii) refuses or fails to produce a document or thing that he or she was required to produce by a summons or notice under this Act that was served to him or her as prescribed; or
(b) is a legal practitioner who is required to answer a question or produce a document at an examination before an examiner, and both of the following apply:
(i) the answer to the question would disclose, or the document contains, a privileged communication made by or to the legal practitioner in his or her capacity as a legal practitioner;
(ii) he or she refuses to comply with the requirement and does not, when required by the examiner, give the examiner the name and address of the person to whom or by whom the communication was made; or
(c) gives evidence at an examination before an examiner that he or she knows is false or misleading in a material particular; or
(d) obstructs or hinders an examiner in the performance of his or her functions as an examiner; or
(e) disrupts an examination before an examiner; or
(f) threatens a person present at an examination before an examiner.
(1) If an examiner is of the opinion that, during an examination before the examiner, a person is in contempt of the ACC, the examiner may apply to either of the following courts for the person to be dealt with in relation to the contempt:
(a) the Federal Court;
(b) the Supreme Court of the State or Territory in which the examination to which the contempt relates is being conducted.
(2) Before making the application, the examiner must inform the person that the examiner proposes to make the application.
(3) The application must be accompanied by a certificate that states:
(a) the grounds for making the application; and
(b) evidence in support of the application.
(4) A copy of the certificate must be given to the person before, or at the same time as, the application is made.
(5) If, after:
(a) considering the matters specified in the certificate; and
(b) hearing or receiving any evidence or statements by or in support of the ACC; and
(c) hearing or receiving any evidence or statements by or in support of the person;
the Court to which the application was made finds that the person was in contempt of the ACC, the Court may deal with the person as if the acts or omissions involved constituted a contempt of that Court.
(6) For the purposes of determining whether a person is in contempt of the ACC under subsection (1), Chapter 2 of the
Criminal Code applies as if:
(a) contempt of the ACC were an offence; and
(b) references to a person being criminally responsible for an offence were references to a person being responsible for contempt of the ACC.
(1) This section applies if an application for a person to be dealt with in relation to a contempt of the ACC is made to the Federal Court or to the Supreme Court of a State or Territory under section 34B.
(2) Proceedings in relation to the application are, subject to this Act, to be instituted, carried on, heard and determined in accordance with the laws (including any Rules of Court) that apply in relation to the punishment of a contempt of the Court to which the application was made.
(3) In proceedings in relation to the application, a certificate under subsection 34B(3) is prima facie evidence of the matters specified in the certificate.
(1) If an examiner proposes to make an application under subsection 34B(1) in respect of a person, he or she may, during the hearing concerned, direct a constable to detain the person for the purpose of bringing the person before the Court to which the application was made for the hearing of the application.
(2) If the person is detained under subsection (1):
(a) the examiner must apply to the Court as soon as practicable under subsection 34B(1) in respect of the person; and
(b) the person must, subject to subsection (3) of this section, be brought before the Court as soon as practicable.
(3) The Court may:
(a) direct that the person be released from detention on condition that he or she will appear before the Court in relation to the application; or
(b) order that the person continue to be detained until the application is determined.
(4) The Court may also impose any other condition on the release, for example:
(a) that the person surrenders his or her passport; or
(b) that the person gives an undertaking as to his or her living arrangements; or
(c) that the person reports as required to a law enforcement agency.
(5) The Court may at any time vary or revoke a condition imposed under subsection (4).
(1) An examiner may at any time withdraw an application in relation to a person under subsection 34B(1).
(2) If:
(a) the examiner does so; and
(b) the person is in detention under section 34D;
the person must be released from detention immediately.
To avoid doubt, evidence relating to an application under subsection 34B(1) is not required to be given to a person or authority under subsection 12(1).
Add:
; or (c) threaten any person present at an examination before an examiner.
Before “Where”, insert “(1)”.
Add:
(2) If:
(a) an application is made to the Federal Court or a Supreme Court under subsection 34B(1) in respect of an act or omission by a person; and
(b) the person is dealt with by the Court under that section in respect of the act or omission;
the person is not liable to be prosecuted for an offence in respect of that act or omission.
(3) If a person is prosecuted for an offence in respect of an act or omission referred to in subsection 34B(1), an application must not be made under subsection 34B(1) in respect of that act or omission.
Repeal the section, substitute:
(1) The Minister must cause an independent review to be undertaken of:
(a) the operation of this Act during the 5 year period beginning at the commencement of Schedule 7 to the
Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 ; and(b) the operation of this Act during each subsequent 5 year period.
(2) A review under subsection (1) must be undertaken as soon as practicable after the end of the 5 year period to which the review is to relate.
(3) If, before the Minister undertakes a review of the operation of this Act in relation to a particular 5 year period referred to in subsection (1), a committee of one or both Houses of the Parliament starts such a review, the Minister need not undertake such a review.
Insert:
(wa) decisions under section 34B or 34D of the
Australian Crime Commission Act 2002 ;
24
Subsection 6(1) (at the end of the definition of relevant proceeding ) Add:
; (p) a proceeding in relation to an application under subsection 34B(1) of the
Australian Crime Commission Act 2002 in respect of contempt of the Australian Crime Commission.
Insert:
(hd) a proceeding in relation to an application under subsection 34B(1) of the
Australian Crime Commission Act 2002 in respect of contempt of the Australian Crime Commission; or
The amendments made by item 3 and items 18 to 21 of this Schedule apply to an act or omission engaged in by a person in relation to an examination that began on or after the commencement of this item.
The amendment made by item 4 of this Schedule applies to operations that began before, on or after the commencement of this item.
28
Application of amendments relating to reasons for summons or notice The amendments made by items 9, 10, 11, 12, 13 and 14 of this Schedule apply to a summons or notice issued on or after the commencement of this item.
29
Application of amendments made by items 24 and 25 The amendments made by items 24 and 25 of this Schedule apply to information obtained before, on or after the commencement of this item.
1
Subsection 70.2(1) of the Criminal Code (penalty) Repeal the penalty.
2
Subsection 70.2(1) of the Criminal Code (notes 1 and 2) Repeal the notes, substitute:
Note: For defences see sections 70.3 and 70.4.
Add:
Penalty for individual
(4) An offence against subsection (1) committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.
Penalty for body corporate
(5) An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:
(a) 100,000 penalty units;
(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence—3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10% of the annual turnover of the body corporate during the period (the
turnover period ) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.(6) For the purposes of this section, the
annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies:
(a) supplies made from any of those bodies corporate to any other of those bodies corporate;
(b) supplies that are input taxed;
(c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the
A New Tax System (Goods and Services Tax) Act 1999 );(d) supplies that are not made in connection with an enterprise that the body corporate carries on.
(7) Expressions used in subsection (6) that are also used in the
A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subsection as they have in that Act.(8) The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this section in the same way as for the purposes of the
Corporations Act 2001 .
4
Subsection 141.1(1) of the Criminal Code (penalty) Repeal the penalty.
5
Subsection 141.1(3) of the Criminal Code (penalty) Repeal the penalty.
Add:
Penalty for individual
(5) An offence against subsection (1) or (3) committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.
Penalty for body corporate
(6) An offence against subsection (1) or (3) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:
(a) 100,000 penalty units;
(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence—3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10% of the annual turnover of the body corporate during the period (the
turnover period ) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.(7) For the purposes of this section, the
annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies:
(a) supplies made from any of those bodies corporate to any other of those bodies corporate;
(b) supplies that are input taxed;
(c) supplies that are not for consideration (and are not taxable supplies under section 72‑5 of the
A New Tax System (Goods and Services Tax) Act 1999 );(d) supplies that are not made in connection with an enterprise that the body corporate carries on.
(8) Expressions used in subsection (7) that are also used in the
A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subsection as they have in that Act.(9) The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this section in the same way as for the purposes of the
Corporations Act 2001 .
1
Section 300.2 of the Criminal Code (definition of import ) Repeal the definition, substitute:
import , in relation to a substance, means import the substance into Australia and includes:
(a) bring the substance into Australia; and
(b) deal with the substance in connection with its importation.
After “11.2,”, insert “11.2A,”.
After “11.2”, insert “or 11.2A”.
After “11.2”, insert “or 11.2A”.
After “11.2,”, insert “11.2A,”.
After “11.2”, insert “or 11.2A”.
After “11.2,”, insert “11.2A,”.
Omit “or 11.3”, substitute “, 11.2A or 11.3”.
After “11.2”, insert “or 11.2A”.
After “11.2”, insert “or 11.2A”.
Omit “or 11.2”, substitute “, 11.2 or 11.2A”.
Omit “and 11.2”, substitute “, 11.2 and 11.2A”.
12
Subsection 18(5) (definition of offence against this Division ) Omit “or 11.2”, substitute “, 11.2 or 11.2A”.
13
Subsection 20(6) (definition of offence against Division 1 ) Omit “or 11.2”, substitute “, 11.2 or 11.2A”.
14
Subsection 29(5) (definition of offence against this Part ) Omit “or 11.2”, substitute “, 11.2 or 11.2A”.
Omit “or 11.2”, substitute “, 11.2 or 11.2A”.
Omit “or 11.2”, substitute “, 11.2 or 11.2A”.
After “11.2,”, insert “11.2A,”.
After “11.2”, insert “or 11.2A”.
After “11.2”, insert “, 11.2A”.
Insert:
(8A) For the purposes of this section, if a person is convicted of an offence against this Act because of section 11.2A of the
Criminal Code :
(a) the person is taken to have been convicted of an ancillary offence; and
(b) the offence that was committed because of that section is taken to be the primary offence to which the ancillary offence relates.
21
Subsection 3(1) (paragraph (b) of the definition of offence against this Act ) After “11.2”, insert “or 11.2A”.
After “11.2,”, insert “11.2A,”.
After “11.2,”, insert “11.2A,”.
24
Section 338 (paragraph (g) of the definition of serious offence ) After “11.2,”, insert “11.2A,”.
Omit “or 11.2”, substitute “, 11.2 or 11.2A”.
After “11.2”, insert “, 11.2A”.
After “11.2,”, insert “11.2A,”.
After “11.2”, insert “or 11.2A”.
After “11.2,”, insert “11.2A,”.
After “11.2”, insert “or 11.2A”.
After “11.2”, insert “, 11.2A”.
1
Subsection 16(7) (paragraphs (a) and (b) of the definition of offence against this Act ) Repeal the paragraphs, substitute:
(a) section 6 of the
Crimes Act 1914 ; or(b) section 11.1, 11.4 or 11.5 of the
Criminal Code ;
Omit “created by section 6, 7 or 7A or subsection 86(1) of the
Crimes Act 1914 ”, substitute “against section 6 of theCrimes Act 1914 , or against section 11.1, 11.4 or 11.5 of theCriminal Code ,”.
Omit “created by section 6, 7 or 7A of the
Crimes Act 1914 ”, substitute “against section 6 of theCrimes Act 1914 , or against section 11.1 or 11.4 of theCriminal Code ,”.
Omit “created by section 6, 7, 7A or 86 of the
Crimes Act 1914 ”, substitute “against section 6 of theCrimes Act 1914 , or against section 11.1, 11.4 or 11.5 of theCriminal Code ,”.
Omit “arising under section 5, or under”, substitute “that is taken to have been committed because of section 11.2 or 11.2A of the
Criminal Code , or against”.
6
Section 51 (definition of offence against this Part ) Repeal the definition, substitute:
offence against this Part includes:
(a) an offence against section 6 that relates to an offence against a provision of this Part; and
(b) an offence against a provision of this Part that is taken to have been committed because of section 11.2 or 11.2A of the
Criminal Code ; and(c) an offence against section 11.1, 11.4 or 11.5 of the
Criminal Code that relates to an offence against a provision of this Part.
Omit “section 6, 7 or 7A or subsection 86(1) of the
Crimes Act 1914 ”, substitute “section 6 of theCrimes Act 1914 , or against section 11.1, 11.4 or 11.5 of theCriminal Code ,”.
Omit “created by section 6, 7 or 7A of the
Crimes Act 1914 ”, substitute “against section 6 of theCrimes Act 1914 , or against section 11.1 or 11.4 of theCriminal Code ,”.
9
Subsection 16(2) (paragraph (d) of the definition of relevant offence ) Repeal the paragraph, substitute:
(d) an offence:
(i) against section 6 of the
Crimes Act 1914 ; or(ii) that is taken to have been committed because of section 11.2 or 11.2A of the
Criminal Code ; or(iii) against section 11.1, 11.4 or 11.5 of the
Criminal Code ; or(iv) against a provision of a law of a State or Territory that corresponds to any of the provisions referred to in subparagraphs (i) to (iii);
that relates to an offence referred to in paragraph (a) or (c); or
Repeal the paragraph, substitute:
(d) an offence:
(i) against section 6 of the
Crimes Act 1914 ; or(ii) that is taken to have been committed because of section 11.2 or 11.2A of the
Criminal Code ; or(iii) against section 11.1, 11.4 or 11.5 of the
Criminal Code ; or(iv) against a provision of a law of a State or Territory that corresponds to any of the provisions referred to in subparagraphs (i) to (iii);
that relates to an offence referred to in paragraph (a) or (c); or
Repeal the subsection, substitute:
(4) A reference in section 188 to an ancillary offence relating to this Act or the regulations is a reference to an offence:
(a) against section 6 of the
Crimes Act 1914 ; or(b) that is taken to have been committed because of section 11.2 or 11.2A of the
Criminal Code ; or(c) against section 11.1, 11.4 or 11.5 of the
Criminal Code ;that relates to this Act or the regulations.
12
Subsection 23DA(1) (subparagraphs (c)(i) and (ii) of the definition of relevant offence ) Repeal the subparagraphs, substitute:
(i) section 6 of the
Crimes Act 1914 ; or(ii) section 11.1, 11.4 or 11.5 of the
Criminal Code ;
Repeal the paragraphs, substitute:
(a) an offence:
(i) against section 6 of the
Crimes Act 1914 ; or(ii) that is taken to have been committed because of section 11.2 or 11.2A of the
Criminal Code ; or(iii) against section 11.1, 11.4 or 11.5 of the
Criminal Code ;that relates to a provision of this Act is taken to be an offence against a provision of this Act; and
(b) an offence:
(i) against section 6 of the
Crimes Act 1914 ; or(ii) that is taken to have been committed because of section 11.2 or 11.2A of the
Criminal Code ; or(iii) against section 11.1, 11.4 or 11.5 of the
Criminal Code ;that relates to a provision of the regulations is taken to be an offence against a provision of the regulations; and
Repeal the paragraph, substitute:
(b) an offence:
(i) against section 6 of the
Crimes Act 1914 ; or(ii) that is taken to have been committed because of section 11.2 or 11.2A of the
Criminal Code ; or(iii) against section 11.1, 11.4 or 11.5 of the
Criminal Code ;being an offence that relates to the regulations.
Repeal the subsection, substitute:
(9) A reference in this section to an offence against section 74 or 75 includes a reference to an offence:
(a) against section 6 of the
Crimes Act 1914 ; or(b) that is taken to have been committed because of section 11.2 or 11.2A of the
Criminal Code ; or(c) against section 11.1, 11.4 or 11.5 of the
Criminal Code ;that relates to section 74 or 75 of this Act.
Omit “created by section 6, 7 or 7A of the
Crimes Act 1914 ”, substitute “against section 6 of theCrimes Act 1914 , or against section 11.1 or 11.4 of theCriminal Code ,”.
17
Subsection 4(1) (definition of offence against this Act ) Repeal the definition, substitute:
offence against this Act includes:
(a) an offence against section 6 of the
Crimes Act 1914 in relation to an offence against this Act; and(b) an offence against section 11.1, 11.4 or 11.5 of the
Criminal Code , being an offence in relation to an offence against this Act.
Repeal the paragraphs, substitute:
(a) an offence against section 6 of the
Crimes Act 1914 in relation to an offence against a provision of this Act; and(b) an offence against section 11.1, 11.4 or 11.5 of the
Criminal Code , being an offence in relation to an offence against a provision of this Act.
Repeal the paragraphs, substitute:
(a) an offence against section 6 of the
Crimes Act 1914 in relation to an offence against a provision of that Part; and(b) an offence against section 11.1, 11.4 or 11.5 of the
Criminal Code , being an offence in relation to an offence against a provision of that Part.
Repeal the subsection, substitute:
(6) A reference in subsection (4) of this section or subsection 8M(2) to an offence against subsection 8K(1) or (1B) or 8L(1) or (1A) includes a reference to an offence against section 11.1 of the
Criminal Code that relates to an offence against subsection 8K(1) or (1B) or 8L(1) or (1A), as the case may be.
Omit “section 7 of the
Crimes Act 1914 ”, substitute “section 11.1 of theCriminal Code ”.
Repeal the subsection, substitute:
(8) A reference in this section to an offence against this Act includes a reference to an offence:
(a) against section 6 of the
Crimes Act 1914 ; or(b) that is taken to have been committed because of section 11.2 or 11.2A of the
Criminal Code ; or(c) against section 11.1, 11.4 or 11.5 of the
Criminal Code ;being an offence that relates to this Act.
Omit “Sections 5, 7 and 7A of the
Crimes Act 1914 , and section 11.1 of theCriminal Code ,”, substitute “Subsections 11.1(1), 11.2(1), 11.2A(1), and 11.4(1) of theCriminal Code ”.
24
Section 4 (definition of offence against this Act ) Omit “section 6, 7 or 7A, or subsection 86(1), of the
Crimes Act 1914 ”, substitute “section 6 of theCrimes Act 1914 , or against section 11.1, 11.4 or 11.5 of theCriminal Code ,”.
25
Section 3 (paragraphs (a) and (b) of the definition of offence against this Act ) Repeal the paragraphs, substitute:
(a) section 6 of the
Crimes Act 1914 ; or(b) section 11.1, 11.4 or 11.5 of the
Criminal Code ;
The
Act | Number and year | Date of Assent | Date of commencement | Application, saving or transitional provisions |
4, 2010 | 19 Feb 2010 | |||
5, 2011 | 22 Mar 2011 | Schedule 2 (item 2): | — |
(a) Subsection 2(1) (item 4) of theStatute Law Revision Act 2011 provides as follows:
(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.
Schedule 2, item 2 | Immediately after the time specified in the | 20 February 2010 |
am. = amended rep. = repealed rs. = repealed and substituted | |
Provision affected | How affected |
Item 182................................ | am. No. 5, 2011 |
0
0
0