House of Representatives

Explanatory Memorandum

Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP

CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL (No.2) 2009

GENERAL OUTLINE

This Bill amends the Administrative Decisions (Judicial Review) Act 1977 , the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 , the Australian Crime Commission Act 2002 , the Crimes Act 1914 , the Criminal Code Act 1995 , the Customs Act 1901 , the Law Enforcement Integrity Commissioner Act 2006 , the Mutual Assistance in Criminal Matters Act 1987 , the Proceeds of Crime Act 2002 , the Surveillance Devices Act 2004 , the Telecommunications (Interception and Access) Act 1979 , and the Witness Protection Act 1994 .

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. In June 2009, the Government introduced the Crimes Legislation Amendment (Serious and Organised Crime) Bill, which implements the Commonwealth's commitment at the April SCAG meeting to enhance its legislation to combat organised crime. In August 2009, SCAG agreed to further legislative and operational arrangements to support the national response to organised crime.

This Bill implements legislative aspects of the national response to organised crime that were not implemented by the first Bill, and includes additional measures to strengthen existing laws to more effectively prevent, investigate and prosecute organised crime activity, and target the proceeds of organised criminal groups. The Bill:

•

strengthens criminal asset confiscation and anti-money laundering laws (Schedule 1 and Schedule 5, Part 2)

•

enhances search and seizure powers and the ability of law enforcement to access data from electronic equipment (Schedule 2)

•

improves the operation of the National Witness Protection Program, including by increasing protection for current and former participants and officers involved in its operation (Schedule 3)

•

introduces new offences that would target persons involved in organised crime, and facilitates greater access to telecommunications interception for the investigation of new serious and organised crime offences (Schedule 4)

•

improves the operation and accountability of the Australian Crime Commission (Schedule 7)

•

improves money laundering, bribery, and drug importation offences (Schedule 5, Part 1, and Schedules 8 and 9), and

•

makes minor and consequential amendments to correct references to provisions dealing with the extension of criminal liability (Schedules 10 and 11).

The Bill also makes an urgent amendment to preserve the ability of federal defendants in Victoria to appeal a finding that they are unfit to plead (Schedule 6).

These measures are further described below.

PURPOSE

The purpose of Schedule 1 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 on the Independent Review of the Operation of the Proceeds of Crime Act 2002 (Cth ), by Mr Tom Sherman AO, which was tabled in Parliament in October 2006.

The amendments in Schedule 1 will:

•

make tests for exclusion and recovery of property fairer and more consistent, including by strengthening protections for third parties

•

improve the operation of examination provisions

•

increase the effectiveness of information gathering tools under the Proceeds of Crime Act

•

clarify the operation of orders ancillary to restraining orders

•

address technical recommendations with respect to the admission of evidence

•

ensure the correct calculation of pecuniary penalty orders

•

expand and clarify definitions used in the Act, and

•

make minor and technical amendments to the Act, including to enhance the effectiveness of the Confiscated Assets Account.

The overarching purpose of these amendments is to improve the operation of the Proceeds of Crime Act, to ensure that it can be used effectively to deprive persons involved in organised crime of the financial benefits of their criminal activity.

Schedule 2 contains search related amendments that will target two main aspects of the search warrant provisions in the Crimes Act 1914 . Firstly, the reforms will allow material seized under Part IAA, and documents produced under Division 4B, to be used by, and shared between, Commonwealth, State and Territory and foreign law enforcement agencies. This is necessary for the proper investigation of offences which cross jurisdictional boundaries. The second component of the amendments will ensure that law enforcement agencies are able to effectively and efficiently access and search electronic equipment to keep up with technological advancements.

Schedule 3 will amend the Witness Protection Act 1994 to improve the operation of the National Witness Protection Program (NWPP). The NWPP provides protection and assistance to people who are assessed as being in danger because they have given, or have agreed to give, evidence or a statement on behalf of the Crown in criminal or certain other proceedings, or because of their relationship to such a person.

The amendments include measures that draw on recommendations made in the Review of the National Witness Protection Program of December 2003 and are informed by operational experience with the NWPP. The amendments will:

•

provide increased protection and security for witnesses and others included in the NWPP, as well as officers involved in the operation of the NWPP

•

allow protection and assistance available under the NWPP to be extended to former participants and other related persons where appropriate, and

•

ensure that State and Territory participants are afforded the same protection and have the same obligations as Commonwealth participants.

The purpose of Schedule 4 is to insert new offences targeting persons involved in serious and organised crime into the Criminal Code Act 1995 . The proposed amendments implement resolutions agreed to by the Standing Committee of Attorneys-General (SCAG) in April and August 2009 as part of the national response to organised crime. The SCAG resolutions included consideration of measures to enhance the legislative response to organised crime, including through the introduction of new criminal offences.

The amendments will introduce new offences criminalising associating with persons involved in organised criminal activity, as well as those who support, commit crimes for or direct the activities of a criminal organisation. The amendments will also facilitate greater access to telecommunications interception powers for the investigation of the new offences.

The purpose of Part 1 of Schedule 5 is to enhance the ability of law enforcement agencies to investigate and prosecute the money laundering offences in Division 400 of the Criminal Code. The amendments are intended to address problems identified by the CDPP and AFP when investigating and prosecuting the money laundering offences in Division 400. In particular, the amendments extend the geographical jurisdiction of those offences and remove limitations on the scope of the offences to enable them to apply to the full extent of the Commonwealth's constitutional power in this area.

The purpose of Part 2 of Schedule 5 is to address issues identified by AUSTRAC, the anti-money laundering and counter-terrorism financing regulator, when taking enforcement action against reporting entities that do not comply with their obligations under the AML/CTF Act.

Schedule 6 will make an urgent amendment to the Crimes Act to ensure that federal defendants in Victoria can continue to appeal a finding that they are unfit to plead. This will address changes to Victorian legislation that take effect from October 2009.

Schedule 7 will amend the Australian Crime Commission Act 2002 to improve the operation and accountability of the Australian Crime Commission (ACC), including by enhancing the ACC's powers to deal with uncooperative witnesses, clarifying procedural powers for issuing summons and notices to produce, and requiring regular, independent review of the ACC.

Schedule 8 will increase the penalties for the offences of bribing a foreign public official (section 70.2 of the Criminal Code Act 1995 ) and bribery of a Commonwealth public official (section 141.1 of the Criminal Code).

Schedule 9 will extend the definition of 'import' in Division 300 of the Criminal Code to include 'dealing with a substance in connection with its importation'. The effect of this amendment is that the Commonwealth drug importation offences will capture a broader range of criminal activity.

The purpose of Schedules 10 and 11 is to make minor and consequential amendments to ensure that references to the extensions of criminal responsibility provisions in Part 2.4 of the Criminal Code are correct.

FINANCIAL IMPACT STATEMENT

The amendments in this Bill have no financial impact on Government revenue.

ACRONYMS

NOTES ON CLAUSES

Clause 1: Short Title

This clause provides that when the Bill is enacted, it is to be cited as the Crimes Legislation Amendment (Serious and Organised Crime) Act (No.2) 2009 .

Clause 2: Commencement

This clause sets out when the various parts of the Act are to commence.

Clause 3: Schedule(s)

This is a formal clause that enables the Schedules to amend Acts by including amendments under the title of the relevant Act.

Clause 4: Regulation-making power

This clause will allow the Governor-General to make regulations necessary for, or prescribed by, the Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2009 . The regulation-making power will ensure that where necessary, matters of a transitional nature relating to amendments or repeals made by this Act may be prescribed.