Explanatory MemorandumCirculated By Authority of the Attorney-General, the Honourable Robert Mcclelland MP
This Bill amends the Crimes Act 1914, the Criminal Code Act 1995, the Customs Act 1901, the Family Law Act 1975, the Proceeds of Crime Act 2002 and the Telecommunications (Interception and Access) Act 1979.
In April 2009, the Standing Committee of Attorneys-General (SCAG) agreed to a set of resolutions for a comprehensive national response to combat organised crime. The SCAG resolutions dealt with both the legislative and operational response to organised criminal activity. This Bill implements the Commonwealth's commitment as part of the SCAG agreement to enhance its legislation to combat organised crime by:
- strengthening criminal asset confiscation, including introducing unexplained wealth provisions (Schedules 1 and 2)
- enhancing police powers to investigate organised crime by implementing model laws for controlled operations, assumed identities and witness identity protection (Schedule 3)
- addressing the joint commission of criminal offences (Schedule 4, Part 1), and
- facilitating greater access to telecommunications interception for criminal organisation offences and use of lawfully intercepted information as evidence in applications concerning criminal organisation declarations and control orders (Schedule 4, Part 2).
These measures are further described below.
The purpose of Schedules 1 and 2 is to amend the Proceeds of Crime Act 2002 to strengthen the Commonwealth criminal assets confiscation regime. The proposed amendments respond to recommendations of law enforcement agencies and to the Report of the Independent Review of the Operation of the Proceeds of Crime Act by Mr Tom Sherman AO, which was tabled in Parliament in October 2006.
Schedule 1 will introduce unexplained wealth provisions which target wealth that a person cannot demonstrate that he or she has lawfully acquired.
The amendments in Schedule 2 will:
- introduce freezing orders to ensure assets are not dispersed
- remove time limitations on orders
- provide for non-conviction-based restraint and forfeiture of instruments of serious crime
- enhance information sharing under the Proceeds of Crime Act 2002, and
- reimburse legal aid commission legal costs from the Confiscated Assets Account.
The overarching purpose behind these amendments is to improve the ability of law enforcement agencies to target upper-echelon organised crime figures that derive the greatest financial benefit from offences, but are seldom linked by evidence to the commission of an offence.
The purpose of Schedule 3 is to implement model laws for controlled operations, assumed identities and witness identity protection. The model laws were developed following the 2002 Leaders Summit on Multi-jurisdictional Crime by the Joint Working Group of SCAG and the then Australasian Police Ministers Council. The Joint Working Group's Report , Cross-border investigative powers for law enforcement, was released in 2003, and the model laws endorsed by implementation by SCAG in 2004.
The model laws are intended to enhance the ability of law enforcement agencies to investigate and prosecute multi-jurisdictional criminal activity. This type of crime is becoming increasingly common due to advances in information and communication technology, and the increasing sophistication of organised criminal groups, particularly those involved in terrorism or transnational crime, including drug trafficking. Implementation of the model laws will enable authorisations issued under a regime in one jurisdiction to be recognised in other jurisdictions.
Schedule 3 will replace the existing provisions in the Crimes Act 1914 for controlled operations, assumed identities and witness identity protection with the model laws, taking into account the unique role of Commonwealth agencies for national security and the investigation of crimes with a foreign aspect.
The purpose of Schedule 4, Part 1 is to amend the Criminal Code Act 1995 to include a new ground for extending criminal liability in relation to persons who jointly commit offences. Extending criminal liability to cover the joint commission of criminal offences would also target persons who engage in criminal activity as part of a group. The amendments will enable the prosecution to obtain higher penalties for offenders who commit crimes in organised groups by aggregating the conduct of offenders who operate together.
Part of the national response to organised crime includes offences that target criminal organisations (for example, associating with a member of a criminal organisation or instructing the commission of an offence for a criminal organisation). Some of these offences may carry a maximum penalty that falls below the threshold for the use of telecommunications interception. The purpose of Schedule 4, Part 2 is to amend the Telecommunications (Interception and Access) Act 1979 to facilitate greater access to telecommunications interception for criminal organisation offences. This Part will also enable the use of lawfully intercepted communications as evidence in applications by police to have organisations declared criminal organisations and for applications for control orders to be placed on members of declared organisations.