CHAPTER 7
Committee view
7.1
The committee recognises that this Bill makes a large number of changes
which either correct anomalies or drafting errors, or are technical in nature.
However, evidence to the committee raised substantive issues about the
provisions of the Bill:
- creating organised crime offences;
- expanding search and information gathering powers under the
Crimes Act;
- enhancing the powers of the ACC to deal with uncooperative
witnesses; and
- amending the POC Act.
Organised crime offences
7.2
The committee supports the intention of the proposed organised crime
offences in the Bill to provide a mechanism through which law enforcement
agencies can specifically target people who are involved in serious and
organised criminal activity. Nevertheless, the committee considers that the
association offences and the offence of providing support to a criminal
organisation require some changes to ensure they do not operate more broadly
than is necessary to achieve this purpose.
Association offences
7.3
The committee has particular reservations about offences which
criminalise who a person associates with rather than specific conduct. The
committee therefore welcomes the fact that the association offences proposed by
the Bill require not only an association but also that the association
facilitates criminal conduct or proposed conduct. Despite this, submissions to
the inquiry raised legitimate concerns about the breadth of these offences.
7.4
The example of an association offence provided by the Explanatory Memorandum
refers to meetings between the accused and a person proposing to illegally
import drugs through an airport, for the purpose of the accused providing
advice on how airport security could be circumvented as part of the operation.[1]
In other words, the example is one in which there would almost certainly be an intention
to facilitate criminal activity. The committee agrees that this is precisely
the type of behaviour which ought to be captured by the proposed association
offences. However, the association offences as currently drafted require only
recklessness not an intention to assist the criminal conduct. By contrast, the
offences of associating with a terrorist organisation, under section 102.8 of
the Criminal Code, require not only that the association provides support to
the organisation but also that the accused intended that the support would
assist the organisation to expand or to continue to exist.[2]
7.5
The committee can imagine many individuals who knowingly associate with
people engaged in a criminal lifestyle, whose actions may facilitate the
commission of offences, even though they have no intent to do so and may indeed
hope to dissuade those people from further criminal activity. For example, a
legitimate employer may technically fall foul of the association offences by
paying wages to a person he or she knows has been involved in criminal
activities with a drug trafficking gang, if there is a substantial risk those
wages may be used to assist the commission of further offences. It is difficult
to see how an individual could ever renounce a criminal lifestyle if the law
exposed his or her employers to the risk of criminal prosecution for taking a
chance that the person genuinely wished to reform.
7.6
The Acting Deputy Commissioner of the AFP suggested to the committee
that, while there may be an infinite number of scenarios which would arguably
be captured by the association offences, the aim of the provisions is to target
the core of serious organised criminality not the margins.[3]
It might also be argued that the DPP will not pursue prosecutions when a person
is only tenuously connected to organised crime but good legislation does not
rely on the appropriate exercise of discretion by government officials: it is justified
in its own terms. In short, the committee considers that the association offences
in proposed section 390.3 of the Criminal Code are drafted so broadly that they
could capture a range of conduct which ought not to be criminal.
7.7
Moreover, the defences in proposed subsection 390.3(6) of the Criminal
Code are drafted too narrowly to remedy this. For example, it is difficult to
see why an association which is only for the purpose of providing legal advice
in relation to a property conveyance should render a legal practitioner
criminally liable if the property acquired facilitates the commission of an offence
and the practitioner is reckless about this possibility. People who are
involved in organised crime are still entitled to legal advice and
representation and the committee cannot accept that practitioners should only
be protected in relation to specific types of advice and representation. Even
if this is not accepted, the Law Council rightly points out that a legal
practitioner will not be able to make out the defences if his or her client
refuses to waive legal professional privilege to allow the practitioner to lead
evidence about the type of advice provided to the client.
7.8
A further example is that the defence for associations that take place
in the course of practising a religion applies only if the association occurs
in a place used for public religious worship. Yet there are likely to be many
circumstances in which religious practitioners associate with people involved
in organised criminal activity, in private settings, in the course of
practising their religion.
7.9
It seems that assistance provided by counsellors and medical
practitioners would be protected by the defence for associations that are for
the purpose of providing humanitarian aid. However, this defence does not
appear to be broad enough to protect a person who provides accommodation, employment
or education, to someone involved in organised criminal activity, in
circumstances that do not warrant criminal sanction.
7.10
Rather than seeking to identify every potential association which ought
to be excluded from these offences, the committee agrees with the submission of
Professor Broadhurst and Ms Ayling that there should be a general defence of
reasonableness which confers a discretion on the court to consider whether an
association that facilitated criminal conduct or proposed conduct was justified
in the circumstances.
Recommendation 1
7.11 The committee recommends that proposed section 390.3 of the Criminal
Code be amended by limiting its application to circumstances where the accused
intended that the association would facilitate the criminal conduct or proposed
criminal conduct.
Recommendation 2
7.12 The committee recommends that the defences in proposed subsection
390.3(6) of the Criminal Code be amended by:
- replacing the existing defences for legal practitioners with a
more general defence that the association was only for the purpose of providing
legal advice or representation; and
- adding a general defence where the association was reasonable in
the circumstances.
Criminal organisation offences
7.13
The committee is also concerned about the breadth of the proposed offence
of supporting a criminal organisation. The committee notes the requirement that
the support be ‘material’. This will ensure that trivial resources or support
are not captured by proposed section 390.4 of the Criminal Code but it does not
address other issues raised in evidence before the committee. Once again this
offence does not require that the accused knew or intended that the provision
of support would aid the criminal organisation to commit an offence: it
requires only recklessness in relation to this element. In addition, there need
only be a risk that that the support would aid the criminal activity. The
combination of these factors means the offence would capture people in
circumstances where the person is aware of a substantial risk that there is a
risk that the provision of support will aid criminal activity. This layering of
risk upon risk makes the offence too broad. The committee recommends the
offence should instead apply in circumstances where the accused intends that
the provision of the resources or support will aid the organisation to engage
in criminal activity.
7.14
Furthermore, it seems incongruous that a person guilty of the offence of
supporting a criminal organisation is liable to a maximum penalty of five years
imprisonment when the offence the support could have aided may only carry a
maximum penalty of 12 months imprisonment. The committee considers that the
offence should be punishable by a term of imprisonment equivalent to the
penalty for the offence the support could have aided.
Recommendation 3
7.15 The committee recommends that proposed paragraph 390.4(1)(b) of the
Criminal Code be amended to provide that 'the person intended the provision of
the support or resources would aid the organisation to engage in conduct
constituting an offence against any law.'
Recommendation 4
7.16 The committee recommends that the maximum penalty for an offence under
proposed section 390.4 of the Criminal Code should be the maximum penalty for
the offence the accused intended to support.
Search and information gathering powers
7.17
While the committee is generally supportive of the proposed amendments
to the Crimes Act, it considers that some minor changes should be made to these
provisions. Firstly, the committee is concerned about the impact the proposed
changes to subsections 3K(3A) and 3K(3B) of the Crimes Act would have where
equipment used by a business is moved for examination. The Bill would increase
the initial time period that equipment may be moved to another place for
examination from 72 hours to 14 days. While it is clear that the current time
limit of 72 hours creates significant operational difficulties for the AFP,
this must be balanced against the consequences for the owner of removing
equipment for an extended period of time. The committee considers that
increasing the initial period to seven days, with provision for an issuing
officer to approve extensions of up to seven days, would strike an appropriate
balance between these competing concerns.
7.18
Secondly, the committee acknowledges the issues raised by the Law
Council in relation to the proposed amendments to section 3L of the Crimes Act
which would make it easier for officers executing a warrant to operate
electronic equipment at the warrant premises and to copy data accessible from
the equipment. The Bill proposes to remove the additional test for searches of
electronic equipment at warrant premises on the basis that, just as a warrant
authorises searches of filing cabinets on the warrant premises, it should be
sufficient to authorise searches of electronic equipment.[4]
However, to compare searching a filing cabinet with searching a computer is
fallacious because subsection 3L(1) permits not only a search of the computer
itself but of data accessible from it. This could include data stored on
servers at multiple locations. As such, these searches are potentially much
more intrusive and wide ranging than a physical search of the warrant premises.
The committee considers that an additional threshold test should have to be
satisfied before such searches are permitted. That test should clearly be less
onerous than the test for seizing material which is reasonable grounds to
believe a thing constitutes evidential material.[5]
As a result, the committee believes that the appropriate test is that there are
reasonable grounds to suspect that data accessible from the equipment
constitutes evidential material.
7.19
The committee is not persuaded that the proposed test under subsection
3L(1A) for copying data of, reasonable grounds to suspect that the data
constitutes evidential material, is significantly broader than the existing
test of, reasonable grounds to believe that the data might constitute
evidential material. Furthermore, it will often be preferable from an
occupier’s perspective for data to be copied and searched off site rather than
a search having to be carried out on the warrant premises. As a result, the
committee does not oppose this change.
Recommendation 5
7.20 The committee recommends that subsections 3K(3A) and 3K(3B) of the
Crimes Act should provide for equipment to be moved for examination for an
initial period of no longer than seven days.
Recommendation 6
7.21 The committee recommends that subsection 3L(1) of the Crimes Act should
require that, before operating electronic equipment at warrant premises to
access data, an officer executing the warrant must have reasonable grounds to suspect
that the data constitutes evidential material.
Australian Crime Commission Act 2002 amendments
7.22
The committee welcomes the proposed amendments related to the procedures
ACC examiners must follow when issuing a summons or notice to produce and
providing for five yearly reviews of the ACC.
7.23
The committee acknowledges the concerns raised by submitters in relation
to the proposed amendments which would strengthen the powers of the ACC to deal
with uncooperative witnesses. However the committee received compelling
evidence from the ACC about the difficulties the ACC confronts when dealing
with uncooperative witnesses and the potential for this behaviour to frustrate
ACC investigations and operations. The committee accepts that the ACC is facing
a concerted campaign of non-cooperation by some organised crime groups. The committee
is also mindful that the power to summon witnesses for examination is limited
to special investigations and operations which are subject to specific approval
by the ACC Board and that these amendments are consistent with recommendations
of both the Trowell report and the PJC. The committee considers that the
changes proposed by the Bill are necessary to ensure that the ACC is able to effectively
exercise the powers Parliament has invested it with in order to tackle serious
organised crime.
Proceeds of Crimes Act 2002 amendments
7.24
The committee notes the concerns raised by the NSW Attorney-General and
Liberty Victoria regarding the broadening of the definition of ‘unlawful
activity’ under the POC Act. One effect of this amendment would be to narrow
the tests for exclusion of property from restraint or forfeiture so that
property which is the proceeds of state or territory summary offences would not
be excluded. The committee considers that the amendment is justified given that
it returns to the position under the Proceeds of Crime Act 1987 and
would treat the proceeds of state and territory summary offences in the same
way as the proceeds of Commonwealth summary offences.
Conclusion
7.25
The committee wishes to specifically acknowledge that the work of law enforcement
officers and prosecutors in tackling serious and organised crime is difficult
and dangerous. While the committee is entirely supportive of efforts to
strengthen the legislative regime targeting those who direct and profit from
organised crime, the provisions in the Bill should not go further than is
required to achieve this end nor should they unnecessarily intrude on the
rights of individuals. The committee has sought through its recommendations to
limit the scope of some provisions in the Bill which are unnecessarily broad
without compromising the fundamental purpose of those provisions.
7.26
Overall the committee considers that the Bill in combination with the
amendments proposed by the Crimes Legislation Amendment (Serious and Organised
Crime) Bill 2009 represents a significant enhancement of the Commonwealth’s
ability to target organised criminal activity. In addition, both bills will
rationalise and improve many aspects of Commonwealth legislation governing
investigative powers and the confiscation of proceeds of crime.
Recommendation 7
7.27
Subject to the preceding recommendations, the committee recommends that
the Bill be passed.
Senator Patricia Crossin
Chair
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