Footnotes
CHAPTER 1 - INTRODUCTION
[1] Standing
Committee of Attorneys-General, Communiqués, 17 April 2009 and
7 August 2009 available at: http://www.scag.gov.au/lawlink/SCAG/ll_scag.nsf/pages/scag_meetingoutcomes
(accessed 28 September 2009).
[2] Report
on the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009 [Provisions], September 2009.
[3] The
Hon Robert McClelland MP, Attorney-General, House Hansard (Proof), 16
September 2009, p. 11.
[4] Ms
Sarah Chidgey, Committee Hansard, 29 October 2009, p. 1.
[5] Explanatory
Memorandum, pp 1-4.
[6] Explanatory
Memorandum, pp 157-164 and 190-205.
CHAPTER 2 - CHANGES TO THE CRIMINAL CODE
[1] The
Hon Robert McClelland MP, Attorney-General, House Hansard (Proof), 16
September 2009, p. 11. See also Explanatory Memorandum, pp 3 and 129. Unless otherwise
specified, references
to provisions or proposed provisions in this chapter are references to
provisions or proposed provisions of the Criminal Code.
[2] The
submission from the Commonwealth Director of Public Prosecutions provides a
very useful outline of the elements of each offence: Submission 8, pp
5-9.
[3] Explanatory
Memorandum, p. 129.
[4] Explanatory
Memorandum, p. 135.
[5] Explanatory
Memorandum, pp 134-135.
[6] Proposed
subsection 390.1(1); Explanatory Memorandum, p. 130. See also the definition of
‘electronic communication’ in proposed section 390.1(1).
[7] Explanatory
Memorandum, p. 136.
[8] Explanatory
Memorandum, p. 131.
[9] Explanatory
Memorandum, pp 131 and 134; New South Wales Attorney-General, Submission 13,
p. 1.
[10] Explanatory
Memorandum, pp 128 and 136.
[11] Explanatory
Memorandum, p. 135.
[12] Explanatory
Memorandum, pp. 130, 131, 132-134 and 138. See also the definitions of ‘close
family member’, ‘child’, ‘de facto partner’, ‘parent’, ‘stepchild’ and
‘step-parent’ in proposed subsection 390.1(1).
[13] Explanatory
Memorandum, pp 138-139. See also Answers to questions on notice, 9
November 2009, pp 3-6.
[14] Explanatory
Memorandum, pp 139-140.
[15] Explanatory
Memorandum, pp 129 and 140.
[16] Criminal
organisation offences have been introduced in New South Wales by the Crimes
(Criminal Organisations Control) Act 2009 (NSW) and in South Australia by
the Serious and Organised Crime (Control) Act 2008 (SA). Note that in Totani
v State of South Australia [2009] SASC 301, the South Australian Supreme
Court held that subsection 14(1) of the Serious and Organised Crime
(Control) Act 2008 (SA), which requires the Magistrates Court to make
control orders against members of declared organisations, is invalid.
[17] Explanatory
Memorandum, pp 128 and 129.
[18] Explanatory
Memorandum, p. 129. See also proposed paragraph 390.1(3)(a); Explanatory
Memorandum, p. 134.
[19] Explanatory
Memorandum, p. 141, 144 -145 and 148-149. The phrase ‘for the benefit of’ the
organisation is defined in proposed subsection 390.1(1) and is discussed below.
[20] Explanatory
Memorandum, pp 130-131.
[21] Explanatory
Memorandum, pp 140-141. This offence must be a constitutionally covered offence
punishable by imprisonment for at least 12 months. See also Answers to
questions on notice, 9 November 2009, p. 7.
[22] Proposed
subsection 390.4(3); Explanatory Memorandum, p. 142.
[23] Explanatory
Memorandum, p. 140. See also Answers to questions on notice, 9 November
2009, p. 8.
[24] Explanatory
Memorandum, p. 140.
[25] Explanatory
Memorandum, pp 143-144. The offence must be a constitutionally covered offence
punishable by imprisonment for at least 12 months.
[26] Proposed
subsection 390.1(1); Explanatory Memorandum, pp 131-132.
[27] Explanatory
Memorandum, p. 132. See also pp 145 and 147; subsection 390.5(7).
[28] Explanatory
Memorandum, p. 145.
[29] Explanatory
Memorandum, p. 143.
[30] Explanatory
Memorandum, p. 147. Proposed subsection 390.5(6) would ensure that this is the
case in relation to a foreign offence, while section 4C of the Crimes Act
prevents a person being punished twice under two Australian offences for the
same conduct.
[31] Explanatory
Memorandum, pp 147-148. In either case, the offence must be a constitutionally
covered offence punishable by imprisonment for at least 12 months.
[32] Explanatory
Memorandum, p. 149.
[33] Explanatory
Memorandum, p. 148.
[34] Explanatory
Memorandum, pp 129 and 151-152.
[35] Explanatory
Memorandum, p. 3.
[36] Specifically,
a Commonwealth, territory or foreign offence, or a state offence to the extent
that it is a law with respect to external affairs: subsections 400.2(1) and
(3).
[37] Paragraphs
51(i), (v) and (xiii) of the Constitution; section 400.2 and subsection 400.9(3);
Commonwealth Director of Public Prosecutions, Submission 8, p. 10.
[38] CETS
No.141 at:
http://conventions.coe.int/Treaty/en/Treaties/Html/141.htm (accessed
13 October 2009). See particularly article 6 which relates to laundering
offences.
[39] Explanatory
Memorandum, pp 154 and 156; Item 4 and 19 of Schedule 5. See also Commonwealth
Director of Public Prosecutions, Submission 8, p. 10.
[40] The
geographical jurisdiction of offences under section 15.2 includes where, for
example, the conduct constituting the offence occurs outside Australia but the
accused is an Australian citizen or resident at the time of the offence.
[41] More
specifically, the offence must be a Commonwealth indictable offence, a State
indictable offence, an Australian Capital Territory indictable offence, or a
Northern Territory indictable offence. These terms are all defined in
subsection 400.1(1).
[42] Explanatory
Memorandum, pp 156-157; AFP, Submission 10, p. 13.
[43] Submission
10, p. 13. See also Mr Roman Quaedvlieg, Acting Deputy Commissioner, AFP, Committee
Hansard, 29 October 2009, p. 3.
[44] Explanatory
Memorandum, pp 3, 184 and 186.
[45] Sections
70.2 and 141.1; section 4B of the Crimes Act; Explanatory Memorandum, p. 184.
Section 4B of the Crimes Act allows a court to impose a pecuniary penalty for a
Commonwealth offence. The penalty is calculated according to the formulas set
out in that section and may be in addition to, or instead of, a penalty of
imprisonment.
[46] Items
1, 3- 6, of Schedule 8; Explanatory Memorandum, pp 184 and 186.
[47] Items
1, 3, 4 and 6 of Schedule 8; Explanatory Memorandum, pp 185 and 186.
[48] Explanatory
Memorandum, pp 184 and 186. See also Answers to questions on notice, 9
November 2009, p. 1.
[49] Explanatory
Memorandum, pp 3 and 188.
[50] Campbell
v R [2008] NSWCCA 214 at paras 101-102 and 123-128; Commonwealth Director
of Public Prosecutions, Submission 8, pp 12-13; Explanatory Memorandum,
p. 188.
[51] Explanatory
Memorandum, p. 189. See also AFP, Submission 10, p. 13.
[52] Submission
3, pp 3-4.
[53] Submission
3, p. 5. Section 351A of the Crimes Act 1900 (NSW) creates offences
where a person recruits another person to carry out, or assist in carrying out,
a criminal activity.
[54] Submission
3, p. 5.
[55] Submission
12, p. 4.
[56] Submission
12, p. 6. Sections 11.1 to 11.5 in Part 2.4 of the Criminal Code extend
criminal liability to where a person attempts or conspires to commit an
offence, or urges, aids, abets counsels or procures the commission of an
offence.
[57] Submission
12, p. 6.
[58] Submission
12, p. 7.
[59] Submission
13, p. 2.
[60] Committee
Hansard, 29 October 2009, p. 3.
[61] Ms
Sarah Chidgey, Committee Hansard, 29 October 2009, p. 5.
[62] Submission
1, p. 16. The Attorney-General’s Department confirmed that it would be
possible to charge a person with attempted association: Ms Sarah Chidgey, Committee
Hansard, 29 October 2009, p. 6.
[63] Submission
1, pp 16. See also Dr Ben Saul, Sydney Centre for International Law, Submission
5, p. 3.
[64] Submission
12, p. 9.
[65] Submission
12, p. 9. Under proposed subparagraphs 390.3(1)(c) and 390.3(2)(d), to
constitute an offence, the associations must ‘facilitate’ the other person
engaging in crime.
[66] Submission
12, pp 9-10. It is sufficient if the person is aware of a substantial risk
that the association will facilitate criminal conduct.
[67] Submission
6, pp 4-5. Section 44 of the Serious Crime Act 2007 (UK) provides
that a person commits an offence if he does an act capable of encouraging or
assisting the commission of an offence; and he intends to encourage or assist
its commission.
[68] Dr
Saul, Submission 5, p. 3; Professor Broadhurst and Ms Ayling, Submission
6; p. 5; Law Council, Submission 12, p. 10.
[69] Submission
6, p. 5.
[70] Submission
6, pp 5 and 7.
[71] Submission
12, p. 10.
[72] Submission
12, p. 10.
[73] Submission
6, pp 6-7.
[74] Submission
13, p. 2. See also Answers to questions on notice, 9 November 2009,
pp 6-7.
[75] Ms
Sarah Chidgey, Committee Hansard, 29 October 2009, p. 5. See also Answers
to questions on notice, 9 November 2009, pp 2-3.
[76] Ms
Sarah Chidgey, Committee Hansard, 29 October 2009, p. 5.
[77] Ms
Sarah Chidgey, Committee Hansard, 29 October 2009, p. 6. See also p. 5; Answers
to questions on notice, 9 November 2009, pp 2-3.
[78] Ms
Sarah Chidgey, Committee Hansard, 29 October 2009, p. 15. See also pp
5-6.
[79] Committee
Hansard, 29 October 2009, p. 7.
[80] Mr
Michael Outram, Executive Director, Committee Hansard, 29 October 2009,
p. 7.
[81] Answers
to questions on notice, 9 November 2009, pp 3-4.
[82] Answers
to questions on notice, 9 November 2009, p. 5.
[83] Answers
to questions on notice, 9 November 2009, p. 5.
[84] Submission
6, p. 3.
[85] Submission
6, p. 3.
[86] Submission
1, pp 14-15.
[87] Submission
5, p. 1; Article 2, TOCC, [2004] ATS 12.
[88] Submission
5, p. 2.
[89] Submission
13, p. 1.
[90] Submission
5, p. 3.
[91] Submission
5, p. 2. The case is the decision of the United States Court of Appeals for
the Ninth Circuit Court in Humanitarian Law Project v Reno [2000] USCA9
114 at http://www.worldlii.org/us/cases/federal/USCA9/2000/114.html
(accessed 20 October 2009).
[92] ‘Material
support or resources’ was defined as ‘currency or other financial securities, financial
services, lodging, training, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances, explosives,
personnel, transportation, and other physical assets, except medicine or
religious materials’: Humanitarian Law Project v Reno [2000] USCA9 114.
[93] Submission
5, p. 3.
[94] Submission
5, p. 3.
[95] Submission
12, pp 11-12.
[96] Submission
12, p. 12.
[97] Submission
12, p. 12.
[98] Ms
Sarah Chidgey, Committee Hansard, 29 October 2009, p. 9.
[99] Answers
to questions on notice, 9 November 2009, p. 8.
[100] Answers
to questions on notice, 9 November 2009, p. 9.
[101] Submission
2, p. 1. See also Professor Broadhurst and Ms Ayling, Submission 6,
p. 2.
[102] Submission
2, pp 2-4.
[103] Submission
2, pp 3-4.
[104] Submission
3, pp 6-7.
[105] Submission
14, pp 1-2.
CHAPTER 3 - SEARCH AND INFORMATION GATHERING POWERS
[1] Explanatory
Memorandum, p. 67.
[2] Item
9 of Schedule 2; Explanatory Memorandum, p. 67. Unless otherwise specified, references
to provisions or proposed provisions in this chapter are references to
provisions or proposed provisions of the Crimes Act.
[3] Sections
3K to 3LB.
[4] Explanatory
Memorandum, p. 68.
[5] Explanatory
Memorandum, p. 68.
[6] Explanatory
Memorandum, p. 69. See also Explanatory Memorandum, pp 71-72; AFP, Submission
10, pp 10-11.
[7] Explanatory
Memorandum, p. 69.
[8] See
the definition of ‘offence’ in subsection 3C(1) and the definition of ‘State
offences that have a federal aspect’ in section 3AA. Offences under the Defence
Force Discipline Act 1982 are specifically excluded from the definition of
‘offence’.
[9] See
the definition of ‘corresponding law’ in section 338 of the POC Act and
regulation 6 of the Proceeds of Crime Regulations 2002.
[10] Proposed
subsection 3ZQU(1); Explanatory Memorandum, pp 70-71.
[11] Proposed
subsections 3ZQU(2), (3) and (4); Explanatory Memorandum, p. 71.
[12] Proposed
subsection 3ZQU(7) would define ‘State or Territory law enforcement agency’ for
the purposes of proposed section 3ZQU.
[13] Explanatory
Memorandum, pp 72-73.
[14] Explanatory
Memorandum, pp 72-73.
[15] Explanatory
Memorandum, pp 73-74. The Mutual Assistance in Criminal Matters Act 1987
would continue to govern assistance provided in relation to the investigation
of foreign offences.
[16] Explanatory
Memorandum, pp 69 and 74. ‘Executing officer’ is defined in subsection 3C(1)
and is essentially the constable responsible for executing the warrant.
[17] Explanatory
Memorandum, p. 74.
[18] Explanatory
Memorandum, p. 74. See also AFP, Submission 10, pp 9-10.
[19] Proposed
subsection 3ZQV(3); Explanatory Memorandum, p. 74.
[20] Explanatory
Memorandum, p. 75.
[21] Item
12 of Schedule 2; Explanatory Memorandum, pp 81-82.
[22] Explanatory
Memorandum, p. 82.
[23] Explanatory
Memorandum, p. 82.
[24] Item
13 of Schedule 2; Explanatory Memorandum, p. 82.
[25] Item
14 of Schedule 2; Explanatory Memorandum, pp 82-84.
[26] Explanatory
Memorandum, p. 83. Under subsection 3K(3A), an executing officer can currently
seek extensions of the 72 hour period from an issuing officer (such as a
magistrate). Item 15 of Schedule 2 would limit each extension to a maximum of
7 days.
[27] Item
20 of Schedule 2; Explanatory Memorandum, p. 86. The powers in this section
would be conferred on ‘the executing officer or a constable assisting’.
‘Constable assisting’ is defined in section 3C and can include a person who is
not a constable but who has been authorised by the relevant executing officer
to assist in executing the warrant.
[28] Proposed
subsection 3LAA(1); Explanatory Memorandum, p. 86.
[29] Proposed
subsection 3LAA(2); Explanatory Memorandum, pp 83 and 87.
[30] Proposed
subsection 3LAA(4); Explanatory Memorandum, p. 87.
[31] Item
16 of Schedule 2; Explanatory Memorandum, p. 84.
[32] Explanatory
Memorandum, p. 84. See also AFP, Submission 10, p. 5.
[33] Item
17 of Schedule 2; Explanatory Memorandum, pp 84-85.
[34] Explanatory
Memorandum, p. 84.
[35] Explanatory
Memorandum, pp 75-80.
[36] Explanatory
Memorandum, p. 76. Subsections 3UF(5) and (9) impose this obligation on ‘the
police officer who is for the time being responsible for the thing’.
[37] Explanatory
Memorandum, p. 76. Subsection 3UF(9) allows ‘the police officer who is for the
time being responsible for the thing’ to apply for a similar extension under
section 3UG.
[38] Proposed
sections 3ZQX, 3ZQY, 3ZQZ, 3ZQZA and 3ZQZB; Explanatory Memorandum, pp 76, 77,
78, 79 and 80.
[39] Item
10 of Schedule 2 (proposed new section 3ZW); Explanatory Memorandum, pp 76 and
80-81.
[40] Proposed
subsections 3ZQX(1), 3ZQY(1), 3ZQZ(2), 3ZQZA(2) and 3ZQZB(3).
[41] Paragraph
3ZV(1)(a); Explanatory Memorandum, p. 77. Subsection 3ZV(1) does not require
the return of the thing if it is forfeited or forfeitable to the Commonwealth;
or is the subject of a dispute as to ownership. These provisions would be
replicated in proposed sections 3ZQX and 3ZQY.
[42] Submission
3, p. 3.
[43] Committee
Hansard, 29 October 2009, p. 3.
[44] Submission
10, pp 4-5. See also Ms Chidgey, Committee Hansard, 29 October 2009,
pp 10-11.
[45] Committee
Hansard, 29 October 2009, p. 11.
[46] Submission
10, p. 5.
[47] Submission
10, pp 5-6. See also Mr Quaedvlieg, Committee Hansard, 29
October 2009, p. 11; Answers to questions on notice, 9 November 2009, p.
9.
[48] Submission
10, pp 7-8.
[49] Submission
10, pp 7-8. See also Answers to questions on notice, 9 November
2009, pp 10-11.
[50] Submission
14, p. 1.
[51] Submission
12, p. 21. See Explanatory Memorandum, p. 84.
[52] Submission
12, pp 22-23. See Explanatory Memorandum, p. 84.
[53] Submission
12, p. 25.
CHAPTER 4 - AUSTRALIAN CRIME COMMISSION
[1] Explanatory
Memorandum, p. 165. The ACC has provided a useful overview of its structure and
functions: Submission 7, pp1-2.
[2] Explanatory
Memorandum, pp 3 and 165. Unless otherwise specified, references
to provisions or proposed provisions in this chapter are references to
provisions or proposed provisions of the ACC Act.
[3] PJC,
Inquiry into the Australian Crime Commission Amendment Act 2007, at https://www.aph.gov.au/Senate/committee/acc_ctte/acc_amend_act07/report/report.pdf
(accessed 13 October 2009), September 2008, recommendations 1 to 8. See also
ACC, Submission 7, p. 9.
[4] Section
7C allows the ACC Board to determine that an intelligence operation or an
investigation is a special operation or special investigation.
[5] Explanatory
Memorandum, p. 168.
[6] Explanatory
Memorandum, pp 168-169.
[7] Items
9, 10, 12 and 13 of Schedule 7; Explanatory Memorandum, pp 170 and 171. See
also PJC, Inquiry into the Australian Crime Commission Amendment Act 2007, recommendation
2, pp 11-16; ACC, Submission 7, p. 9.
[8] Explanatory
Memorandum, pp 170 and 171. In some circumstances, section 29A requires an
examiner to include a notation in a summons or notice prohibiting disclosure of
information about the summons or notice (for example, where it is reasonable to
expect that a disclosure would prejudice the safety or reputation of a person).
[9] Items
11 and 14, of Schedule 7; Explanatory Memorandum, pp 170-171. See also PJC, Inquiry
into the Australian Crime Commission Amendment Act 2007, recommendation 3,
pp 21-22; ACC, Submission 7, p. 9.
[10] Items
15 and 17 of Schedule 7; Explanatory Memorandum, pp 171-174. See also PJC, Inquiry
into the Australian Crime Commission Amendment Act 2007, recommendation 4,
p. 26; ACC, Submission 7, p. 6.
[11] Subsection
29(3A), subsection 30(6), subsection 33(2) and subsection 35(2); Explanatory
Memorandum, p. 174. A ‘penalty unit’ is currently $110.
[12] Explanatory
Memorandum, pp 174-175. See also ACC, Submission 7, pp 3-4; Mr John
Lawler, Chief Executive Officer, ACC, Committee Hansard, 29 October
2009, pp 1 and 4; Answers to questions on notice, 9 November 2009, p. 16.
[13] Item
18 of Schedule 7; Explanatory Memorandum, p. 174.
[14] Senate
Hansard, 8 August 2001, pp 25833-25856. See also ACC, Submission 7,
p. 3.
[15] Explanatory
Memorandum, p. 176.
[16] Explanatory
Memorandum, p. 176.
[17] Explanatory
Memorandum, p. 177. Note that the offence of threatening a person at an
examination would be inserted in the ACC Act by Item 19 of Schedule 7 which
amends section 35: Explanatory Memorandum, pp 179-180; ACC, Submission 7,
p. 10.
[18] Explanatory
Memorandum, p. 177. The application must be either to the Federal Court, or to
the Supreme Court of the state or territory in which the examination is being
conducted.
[19] Proposed
subsection 34B(2); Explanatory Memorandum, p. 177.
[20] Proposed
subsection 34B(3); Explanatory Memorandum, p. 177.
[21] Explanatory
Memorandum, p. 178.
[22] Proposed
subsection 34B(4); Explanatory Memorandum, p. 177.
[23] Explanatory
Memorandum, p. 177.
[24] See
the definition of ‘constable’ which would be inserted in subsection 4(1) by Item
1 of Schedule 7 and the existing definition of ‘State’ in subsection 4(1);
Explanatory Memorandum, p. 178.
[25] Explanatory
Memorandum, p. 178. The reference to the ACC in this provision appears to be a
drafting error since it is the examiner, not the ACC, who is empowered to make
the contempt application under proposed subsection 34B(1).
[26] Items
20 and 21 of Schedule 7; Explanatory Memorandum, p. 180.
[27] Submission
7, p. 3. See also Explanatory Memorandum, pp 176 and 178. For examples of
similar powers under state legislation see section 49 of the Major Crime
(Investigative Powers) Act (Vic) and section 163 of the Corruption and
Crime Commission Act 2003 (WA).
[28] Mark
Trowell QC, Independent Review of the Provisions of the Australian Crime
Commission Act 2002—Report to the Inter-Governmental Committee, March 2007,
recommendations 2 to 7, pp 4, 5-6 and 42-71; Explanatory Memorandum, p. 175.
[29] PJC,
Inquiry into the Australian Crime Commission Amendment Act 2007, p. 49.
See also recommendation 6 and PJC, Examination of the Australian Crime
Commission Annual Report 2007-08, at: https://www.aph.gov.au/Senate/committee/acc_ctte/annual/2008/report/report.pdf
(accessed on 14 October 2009), recommendation 1, pp 13-14; Explanatory
Memorandum, pp 175-176.
[30] Explanatory
Memorandum, p. 168. See also ACC, Submission 7, p. 4.
[31] Explanatory
Memorandum, p. 167. See for example PJC, Review
of the Australian Crime Commission Act 2002, at https://www.aph.gov.au/Senate/committee/acc_ctte/completed_inquiries/2004-07/acc_act02/report/index.htm
(accessed 14 October 2009), November 2005, recommendation 6, pp 54 and 56.
[32] Item 22
of Schedule 7; Explanatory Memorandum, pp 180-181.
[33] Submission
7, p. 10.
[34] PJC,
Inquiry into the Australian Crime Commission Amendment Act 2007, recommendation
8, p. 58.
[35] PJC,
Inquiry into the Australian Crime Commission Amendment Act 2007,
recommendations 9 and 10, pp 58-59.
[36] Submission
4, pp 1-2.
[37] Submission
4, p. 2.
[38] Submission
12, p. 20.
[39] Submission
12, p. 20.
[40] Submission
12, p. 21.
[41] Australian
Law Reform Commission, Royal Commissions and Official Inquiries,
Discussion Paper 75, at: http://www.alrc.gov.au/inquiries/current/royal-commissions/DP75/index.html
(accessed 15 October 2009), August 2009, pp 429-431.
[42] ALRC, pp
433-435.
[43] ALRC,
p. 433.
[44] ALRC,
p. 435. See also Law Council, Submission 12, pp 17-18.
[45] Submission
12, p. 18.
[46] Submission
3, p. 6. See also Professor Broadhurst and Ms Ayling, Submission 6,
pp 1 and 2.
[47] Committee
Hansard, 29 October 2009, p. 3. See also Answers to questions on notice,
9 November 2009, p. 14.
[48] Committee
Hansard, 29 October 2009, pp 7-8. See also Mr Lawler, Committee
Hansard,
29 October 2009, pp 4 and 8; Answers to questions on notice, 9 November
2009, p. 15.
[49] Committee
Hansard, 29 October 2009, p. 14.
[50] Ms
Sarah Chidgey, Committee Hansard, 29 October 2009, p. 8. See also Mr
Outram, ACC, Committee Hansard, 29 October 2009, p. 9.
[51] Ms
Chidgey, Committee Hansard, 29 October 2009, p. 14.
CHAPTER 5 - PROCEEDS OF CRIME
[1] Mr
Tom Sherman AO, Report on the independent review of the operation of the
Proceeds of Crime Act 2002 (Cth), July 2006, at:
http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_ReportontheIndependentReviewoftheOperationofthePrceedsofCrimeAct2002(Cth)
(accessed
29 September 2009).
[2] Explanatory
Memorandum, p. 6.
[3] Report
on the Crimes Legislation Amendment (Serious and Organised Crime) Bill
2009 [Provisions], September 2009, pp 3-6. See also DPP, Submission
8, pp 1-3.
[4] Explanatory
Memorandum, pp 6-7.
[5] Unless
otherwise specified, references to provisions or proposed provisions in this
chapter are references to provisions or proposed provisions of the POC Act.
[6] Explanatory
Memorandum, p. 12.
[7] Item
22 of Schedule 1, Explanatory Memorandum, p. 12.
[8] Items
51, 52 and 54 of Schedule 1, Explanatory Memorandum, pp 19-20.
[9] Items
58, 60 and 62 of Schedule 1, Explanatory Memorandum, pp 22-23.
[10] Subsection
32(b) and section 76.
[11] Items
18 and 28 of Schedule 1; Explanatory Memorandum, pp 11 and 14; Mr Tom Sherman
AO, recommendation D6, p. D8. Item 56 of Schedule 1 makes a similar amendment
to section 94 which does not currently provide that an application under that
section, to exclude property from forfeiture, must not be heard until the DPP
has had a reasonable opportunity to conduct an examination.
[12] Items
17, 27 and 55 of Schedule 1; Explanatory Memorandum, pp 10-11, 13 and 20; Mr Tom
Sherman AO, recommendation D5, p. D7. See also Items 33, 34 and 63 of Schedule 1
which would provide that the DPP need not give notice of the reasons it
proposes to contest a compensation, recovery or buy back order, and a court
must not hear an application for a compensation, recovery or buy back order,
until the DPP has had a reasonable opportunity to conduct
examinations in relation to the application: Explanatory Memorandum, pp 16 and
24.
[13] Explanatory
Memorandum, p. 14.
[14] Item
30 of Schedule 1; Explanatory Memorandum, p. 14.
[15] Proposed
section 94A would also exclude compensation if the applicant’s interest in the
property is the instrument of any offence.
[16] Answers
to questions on notice, 9 November 2009, p. 17.
[17] Explanatory
Memorandum, p. 21.
[18] Items
68 and 72 of Schedule 1; Explanatory Memorandum, pp 25 and 26.
[19] Item
78 of Schedule 1; Explanatory Memorandum, pp 27-28.
[20] Explanatory
Memorandum, p. 28.
[21] Explanatory
Memorandum, p. 28.
[22] Items
82-87 and 91-93 of Schedule 1; Explanatory Memorandum, pp 29 and 30; Mr Tom
Sherman AO, recommendation D21, p. D27.
[23] Explanatory
Memorandum, p. 29.
[24] Explanatory
Memorandum, pp 29 and 30.
[25] Explanatory
Memorandum, p. 32. See also DPP, Submission 8, p. 3.
[26] ‘Confiscation
order’ is defined in section 338 of the POC Act and means a forfeiture order, a
pecuniary penalty order or a literary proceeds order.
[27] Item
103 of Schedule 1; Explanatory Memorandum, pp 32-35. See also Mr Tom Sherman
AO, recommendation D22(b), pp D29-D31.
[28] Explanatory
Memorandum, pp 33-35; Answers to questions on notice, 9 November 2009,
pp 18-19.
[29] Item
109 of Schedule 1; Explanatory Memorandum, pp 36-37. See also Mr Tom Sherman
AO, recommendation D22(d), pp D30-D31.
[30] Items
118 of Schedule 1; Explanatory Memorandum, p. 39. Under sections 180 and 181
and proposed sections 180A to 180E, examination orders permit questioning
‘about the affairs’ of the person being examined.
[31] Items
116 of Schedule 1; Explanatory Memorandum, p. 38. See also Mr Tom Sherman AO,
recommendation D25, p. D33.
[32] Items
114 and 115 of Schedule 1; Explanatory Memorandum, pp 37-38. See also Mr Tom
Sherman AO, recommendation D24, p. D32.
[33] See
for example Item 120 of Schedule 1; Explanatory Memorandum, pp 39-40; Mr Tom
Sherman AO, recommendation D26(a), pp D33-35.
[34] Item
125 of Schedule 1; Explanatory Memorandum, p. 40; Mr Tom Sherman AO,
recommendation D26(b), pp D33-35.
[35] Item
126 of Schedule 1; Explanatory Memorandum, p. 41.
[36] Item
133 of Schedule 1; Explanatory Memorandum, pp. 42.
[37] Items
136 and 137 of Schedule 1; Explanatory Memorandum, p. 43.
[38] Item
132 of Schedule 1; Explanatory Memorandum, p. 42. Item 148 of Schedule 1 would
insert a definition of ‘stored value card’ in section 338 of the POC Act.
[39] Item
141 of Schedule 1; Explanatory Memorandum, p. 44.
[40] Item
147 of Schedule 1; Explanatory Memorandum, p. 45.
[41] Explanatory
Memorandum, p. 45.
[42] Explanatory
Memorandum, p. 7.
[43] Item
152 of Schedule 1; Explanatory Memorandum, p. 46.
[44] Item
153 of Schedule 1; Explanatory Memorandum, p. 47; Mr Tom Sherman AO,
recommendation D7(c), pp D10 and D12.
[45] Item
154 of Schedule 1; Explanatory Memorandum, p. 47; Mr Tom Sherman AO,
recommendation D7(d), pp D11-12. Item 154 would also insert a new section 39B
which will enable a person to apply for an ancillary order to be revoked where
the order was made ex parte.
[46] Item
156 of Schedule 1; Explanatory Memorandum, pp 48-49; Mr Tom Sherman AO,
recommendation D7, pp D10 and D12.
[47] DPP
v Xu [2005] NSWSC 191 at para 36; Explanatory Memorandum, p. 48.
[48] Explanatory
Memorandum, pp 7 and 48.
[49] Item
179 of Schedule 1; Explanatory Memorandum, p. 55; Mr Tom Sherman AO,
recommendation D36, pp D48-D49.
[50] Explanatory
Memorandum, p. 55. See also DPP, Submission 8, p. 4.
[51] Item
182 of Schedule 1; Mr Tom Sherman AO, recommendations D38, pp D49-D50.
[52] Explanatory
Memorandum, p. 56.
[53] See
for example sections 29, 73 and 94.
[54] Items
172, 173, 177 and 180 of Schedule 1; Explanatory Memorandum, pp 53-56; Mr Tom
Sherman AO, recommendations D33, D37 and D39, pp D45-D46 and D49-D50.
[55] Submission
3, p. 3.
[56] Submission
10, pp 2-4. See also Mr Roman Quaedvlieg, Acting Deputy Commissioner, Committee
Hansard, 29 October 2009, p. 3.
[57] Submission
8, p. 3. See also Answers to questions on notice, 9 November 2009,
p. 18.
[58] Submission
11, p. 2.
[59] Submission
11, p. 2. Item 127 of Schedule 1 would introduce a more limited defence in
relation to the offence under section 211. This defence would apply where a
person fails to comply with a production order only because he or she did not
produce the documents within the time specified in the order: Explanatory
Memorandum, p. 41.
[60] Submission
13, p. 1. See also Liberty Victoria, Submission 11, p. 2.
[61] Submission
6, p. 2.
CHAPTER 6 - WITNESS PROTECTION
[1] Explanatory
Memorandum, p. 93. Unless otherwise specified, references
to provisions or proposed provisions in this chapter are references to
provisions or proposed provisions of the WP Act.
[2] Sections
4, 8 and 13; Explanatory Memorandum, p. 93.
[3] Explanatory
Memorandum, p. 93.
[4] Explanatory
Memorandum, p. 94.
[5] Explanatory
Memorandum, pp 94, 96 and 97. See particularly Items 2, 3 and 7 of Schedule 3
which would insert new definitions of ‘current NWPP identity’, ‘former NWPP
identity’ and ‘original identity’ in section 3.
[6] Explanatory
Memorandum, pp 94 and 98-99. See particularly Items 10, 11 and 13 of Schedule 3
which would insert: new definitions of ‘State participant’ and ‘Territory
participant’ in section 3 of the WP Act; and a new section 3AB to define a
‘State offence that has a federal aspect’.
[7] Item
22 of Schedule 3; Explanatory Memorandum, pp 95 and 102.
[8] Explanatory
Memorandum, p. 102.
[9] Explanatory
Memorandum, p. 95.
[10] Explanatory
Memorandum, p. 102.
[11] Explanatory
Memorandum, p. 95.
[12] Explanatory
Memorandum, p. 95.
[13] Explanatory
Memorandum, pp 95 and 108.
[14] The
penalty for these offences would be a maximum of 10 years imprisonment:
proposed subsections 22(3) and (4) and 22A(3) and (4). Offences not involving
this element would have a maximum penalty of two years imprisonment: proposed
subsections 22(1) and (2), and 22A(1) and (2).
[15] Explanatory
Memorandum, pp 95-96, 109 and 117. Proposed subsections 22(2) and (4), and
22A(2) and (4) would create offences relating to disclosures regarding people
undergoing assessment for inclusion in the NWPP. Proposed subsection 22B(1)
would extend the scope of the existing offence under subsection 22(2) to
include disclosures by State and Territory participants and people undergoing
assessment for inclusion in the NWPP.
[16] Explanatory
Memorandum, p. 118.
[17] Explanatory
Memorandum, p. 118.
[18] Proposed
subsections 22(5), 22A(5) and 22B(3); Explanatory Memorandum, pp 111, 116 and
118-119.
[19] Submission
3, p. 3.
[20] Submission
10, p. 11. See also Mr Quaedvlieg, AFP, Committee Hansard, 29
October 2009,
p. 3.
[21] Committee
Hansard, 29 October 2009, p. 4.
[22] Submission
6, p. 2.
[23] Submission
11, p. 3.
[24] Submission
11, p. 3.
[25] Explanatory
Memorandum, pp 109-118. This is not clear on the face of the provisions but
section 5.6 of the Criminal Code applies automatic fault elements to offences
that do not specify fault elements. In the case of physical elements that
consist of conduct (such as disclosing information), the fault element is
intention.
CHAPTER 7 - Committee view
[1] Explanatory
Memorandum, p. 135.
[2] These
offences are punishable by imprisonment for three years as are the offences
under proposed section 390.3 of the Criminal Code.
[3] Committee
Hansard, 29 October 2009, p. 15.
[4] Explanatory
Memorandum, p. 84.
[5] Paragraph
3F(1)(d) of the Crimes Act; Explanatory Memorandum, p. 84.
ADDITIONAL COMMENTS BY LIBERAL SENATORS
[1] Submission
12, p. 9. Under proposed subparagraphs 390.3(1)(c) and 390.3(2)(d) of the
Criminal Code, to constitute an offence, the associations must ‘facilitate’ the
other person engaging in crime.
[2] Submission
12, p. 22-23.
[3] Submission
12, p. 21.
[4] Submission
12, pp 18-19.
[5] Submission
12, p. 7.
[6] Submission
12, p. 21.
[7] Submission
6, p. 7.