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

i Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No.

, 2009

Contents

1 Short

title

...........................................................................................

2 Commencement

.................................................................................

3 Schedule(s)

........................................................................................

4 Regulations

........................................................................................

Schedule 1--Proceeds of crime

Part 1--Exclusion, recovery and compensation

Proceeds of Crime Act 2002

Part 2--Pecuniary penalty orders

Proceeds of Crime Act 2002

Part 3--Examinations

Proceeds of Crime Act 2002

Part 4--Notices

Proceeds of Crime Act 2002

Part 5--Ancillary orders

Proceeds of Crime Act 2002

Part 6--Evidence

Proceeds of Crime Act 2002

Part 7--Definitions

Proceeds of Crime Act 2002

Part 8--Technical amendments relating to orders

Proceeds of Crime Act 2002

Part 9--Confiscated Assets Account

Division 1--Simplification of accounting

Proceeds of Crime Act 2002

Division 2--Crediting amounts paid to settle proceedings

Proceeds of Crime Act 2002

Division 3--Payments by the Commonwealth under court orders

Proceeds of Crime Act 2002

Part 10--Other amendments

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 ii

Administrative Decisions (Judicial Review) Act 1977

Proceeds of Crime Act 2002

Schedule 2--Search warrants

Part 1--Seized things

Crimes Act 1914

Part 2--Use of equipment under warrant

Crimes Act 1914

Schedule 3--Witness protection

Part 1--Amendments

Witness Protection Act 1994

Part 2--Application and saving provisions

Schedule 4--Criminal organisation and association offences

Criminal Code Act 1995

Telecommunications (Interception and Access) Act 1979

106

Schedule 5--Money laundering

107

Part 1--Criminal Code Act 1995

107

Part 2--Anti-Money Laundering and Counter-Terrorism

Financing Act 2006

115

Schedule 6--Unfitness to plead

119

Crimes Act 1914

119

Schedule 7--Amendments relating to the Australian Crime

Commission

122

Part 1--Main amendments

122

Australian Crime Commission Act 2002

122

Part 2--Consequential amendments

130

Administrative Decisions (Judicial Review) Act 1977

130

Surveillance Devices Act 2004

130

Telecommunications (Interception and Access) Act 1979

130

Part 3--Application provisions

131

iii Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No.

, 2009

Schedule 8--Penalties for bribery

132

Criminal Code Act 1995

132

Schedule 9--Drug importation

135

Criminal Code Act 1995

135

Schedule 10--Amendments consequential on enactment of joint

commission offence

136

Aboriginal and Torres Strait Islander Act 2005

136

A New Tax System (Family Assistance) (Administration) Act 1999

136

Australian Institute of Aboriginal and Torres Strait Islander Studies

Act 1989

136

Corporations (Aboriginal and Torres Strait Islander) Act 2006

136

Corporations Act 2001

136

Crimes Act 1914

137

Crimes (Biological Weapons) Act 1976

137

Crimes (Internationally Protected Persons) Act 1976

137

Crimes (Ships and Fixed Platforms) Act 1992

137

Customs Administration Act 1985

138

Defence Force Discipline Act 1982

138

Excise Act 1901

138

Great Barrier Reef Marine Park Act 1975

138

Historic Shipwrecks Act 1976

138

Patents Act 1990

138

Privacy Act 1988

139

Proceeds of Crime Act 2002

139

Sea Installations Act 1987

139

Social Security Act 1991

139

Social Security (Administration) Act 1999

139

Superannuation (Resolution of Complaints) Act 1993

139

Trade Marks Act 1995

140

War Crimes Act 1945

140

Schedule 11--References to repealed provisions of the Crimes

Act 1914

141

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 iv

Aircraft Noise Levy Collection Act 1995

141

Airports Act 1996

141

Antarctic Marine Living Resources Conservation Act 1981

141

Antarctic Treaty (Environment Protection) Act 1980

141

Crimes Act 1914

141

Defence Act 1903

142

Environment Protection (Sea Dumping) Act 1981

142

Export Market Development Grants Act 1997

142

Gene Technology Act 2000

143

Health Insurance Act 1973

143

Offshore Minerals Act 1994

144

Ozone Protection and Synthetic Greenhouse Gas Management Act

1989

144

Plant Breeder's Rights Act 1994

145

Shipping Registration Act 1981

145

South Pacific Nuclear Free Zone Treaty Act 1986

145

Taxation Administration Act 1953

146

Tobacco Advertising Prohibition Act 1992

146

Trade Practices Act 1974

146

Tradex Scheme Act 1999

147

Weapons of Mass Destruction (Prevention of Proliferation) Act 1995

147

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 1

A Bill for an Act to amend various Acts relating to

the enforcement of the criminal law, and for other

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Crimes Legislation Amendment

(Serious and Organised Crime) Act (No. 2) 2009.

2 Commencement

(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.

2 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No.

, 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 4

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1,

items 1 to 213

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) immediately after the commencement of

Part 1 of Schedule 2 to the Crimes

Legislation Amendment (Serious and

Organised Crime) Act 2009.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

3. Schedule 1,

item 214

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) immediately after the commencement of

Part 5 of Schedule 2 to the Crimes

Legislation Amendment (Serious and

Organised Crime) Act 2009.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 3

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

4. Schedule 1,

item 215

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) immediately after the commencement of

Part 1 of Schedule 2 to the Crimes

Legislation Amendment (Serious and

Organised Crime) Act 2009.

However, the provision(s) do not commence

at all if:

Legislation Amendment (Serious and

Organised Crime) Act 2009 commences

before the event mentioned in

paragraph (a); or

(d) the event mentioned in paragraph (b)

does not occur.

5. Schedule 1,

item 216

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) immediately after the commencement of

Part 5 of Schedule 2 to the Crimes

Legislation Amendment (Serious and

Organised Crime) Act 2009.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

6. Schedule 1,

items 217 to 221

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) immediately after the commencement of

Part 1 of Schedule 2 to the Crimes

Legislation Amendment (Serious and

Organised Crime) Act 2009.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

4 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No.

, 2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

7. Schedules 2, 3

and 4

The day after this Act receives the Royal

Assent.

8. Schedule 5,

Part 1

The 28th day after this Act receives the

Royal Assent.

9. Schedule 5,

Part 2

The day after this Act receives the Royal

Assent.

10. Schedule 6,

items 1 and 2

The later of:

(a) the start of the day after this Act receives

the Royal Assent; and

(b) immediately after the commencement of

subsection 369(4) of the Criminal

Procedure Act 2009 of Victoria.

11. Schedule 6,

item 3

Immediately after the commencement of

subsection 369(4) of the Criminal Procedure

Act 2009 of Victoria.

12. Schedules 7,

8 and 9

The day after this Act receives the Royal

Assent.

13. Schedules 10

and 11

The later of:

(a) the day after this Act receives the Royal

Assent; and

(b) immediately after the commencement of

Part 1 of Schedule 4 to the Crimes

Legislation Amendment (Serious and

Organised Crime) Act 2009.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

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.

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 5

3 Schedule(s)

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.

4 Regulations

(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.

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

6 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No.

, 2009

Schedule 1--Proceeds of crime

Part 1--Exclusion, recovery and compensation

Proceeds of Crime Act 2002

1 Subsection 29(1)

Omit "may", substitute "must".

Note:

The heading to section 29 is altered by omitting "Court may exclude" and substituting

"Excluding".

2 Subsection 29(1)

Omit "specified", substitute "a specified

interest in".

3 Paragraph 29(1)(b)

Omit "property", substitute "interest".

4 Subsection 29(2)

Omit "specified", substitute "a specified

interest in".

5 Paragraphs 29(2)(a), (b), (c) and (d)

Omit "property", substitute "interest".

6 Subsection 29(3)

Before "property" (first occurring), insert "a specified

interest in".

7 Paragraphs 29(3)(a) and (d)

Omit "property", substitute "interest".

8 Subsection 29(4)

Before "property" (first occurring), insert "a specified

interest in".

9 Paragraph 29(4)(a)

Omit "owns the property", substitute "has the interest".

10 Paragraph 29(4)(b)

Omit "property is not owned", substitute "interest is not held".

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 7

11 Section 29A

Omit "may", substitute "must".

Note:

The heading to section 29A is altered by omitting "Court may exclude" and

substituting "Excluding".

12 Section 29A

Omit "specified", substitute "a specified

interest in".

13 Paragraph 29A(b)

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.

14 Section 29A (note)

Omit "an examination of the applicant", substitute "examinations in

relation to the restraining order".

15 Subsection 30(1)

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".

16 Subsection 31(1)

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

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".

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

8 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No.

, 2009

17 At the end of subsection 31(6)

Add "However, the DPP need not do so until it has had a reasonable

opportunity to conduct

examinations in relation to the application.".

18 Paragraph 32(b)

Omit "an

examination of the applicant", substitute "

examinations in

relation to the application".

19 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.

20 Subsection 73(1)

Before "property" (first occurring), insert "a specified

interest in".

21 Paragraph 73(1)(b)

Omit "the applicant's property", substitute "property in which the

applicant has an interest".

22 Paragraphs 73(1)(c), (d) and (e)

Repeal the paragraphs, substitute:

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.

23 Paragraph 73(2)(a)

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 9

Omit "property", substitute "

interest".

24 Paragraphs 73(2)(b), (c) and (d)

Omit "property" (wherever occurring), substitute "interest".

25 Subsection 74(1)

Omit "the

person's property", substitute "property in which the person

claims an

interest".

26 Subsections 74(2) and (3)

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

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

the leave.

27 Subsection 75(3)

Omit "examine the applicant under Part 3-1", substitute "conduct

examinations in relation to the application".

28 Section 76

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

10 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

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:

Subdivision C--Compensating for proportion of property not

derived or realised from commission of any offence

30 Subsection 77(1)

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

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.

31 Paragraph 77(2)(b)

After "Commonwealth", insert ", once the property has vested

absolutely in it,".

32 Section 78

Repeal the section, substitute:

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 11

78 Application for compensation orders

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.

33 At the end of subsection 79(3)

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:

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

12 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

79A When an application can be heard

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.

35 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.

36 Section 91 (simplified outline)

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.

37 Paragraph 92(1)(a)

Omit "the", substitute "a".

38 Subparagraph 92(1)(b)(i)

After "order", insert "under section 17 or 18".

39 Paragraph 92(3)(a)

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 13

Omit "day of the conviction", substitute "

conviction day".

40 After section 92

Insert:

92A Notice of date of forfeiture under this Part, etc.

(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

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.

41 Paragraph 93(1)(a)

Omit "day of", substitute "

conviction day for".

42 Paragraph 93(1)(b)

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

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

14 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

43 Paragraph 93(1)(c)

Omit "31", substitute "30, 31 or 94".

44 Subsection 93(1)

Omit "day of" (last occurring), substitute "conviction day for".

45 Subsection 93(2)

Omit "31", substitute "30, 31 or 94".

46 Subsection 93(2)

Omit "day of", substitute "

conviction day for".

47 Subsection 93(3)

Omit "31", substitute "30, 31 or 94".

48 At the end of section 93

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).

49 Subsection 94(1)

Omit "the

restraining", substitute "a

restraining".

50 Subsection 94(1)

Omit "may", substitute "must".

51 Paragraphs 94(1)(a), (b) and (c)

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

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 15

52 Paragraph 94(1)(d)

Omit "the person", substitute "a person".

53 Paragraph 94(1)(e)

Before "property", insert "applicant's interest in the".

54 Paragraph 94(1)(f)

Omit "defendant's", substitute "applicant's".

55 At the end of subsection 94(5)

Add "However, the DPP need not do so until it has had a reasonable

opportunity to conduct

examinations in relation to the application.".

56 At the end of section 94

Add:

(6) The application must not be heard until the

DPP has had a

reasonable opportunity to conduct

examinations in relation to the

application.

57 After section 94

Insert:

94A Compensating for proportion of property not derived or

realised from commission of any offence

(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

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

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

16 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(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

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 17

(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.

58 Subsection 102(1)

Omit "(1)".

59 Subsection 102(1)

Omit "may", substitute "must".

60 Paragraph 102(1)(b)

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;

61 Subparagraph 102(1)(d)(ii)

Omit "declaring that there is payable by the Commonwealth", substitute

"directing the Commonwealth to pay".

62 Subsections 102(2) and (3)

Repeal the subsections.

63 Section 104

Schedule 1 Proceeds of crime

Part 1 Exclusion, recovery and compensation

18 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Repeal the section, substitute:

104 Applying for orders under section 102 or 103

(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;

(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

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

Proceeds of crime Schedule 1

Exclusion, recovery and compensation Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 19

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.

64 Paragraph 106(b)

Omit "subparagraph 102(1)(d)(i)", substitute "subparagraph 102(d)(i)".

65 Application

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.

66 Paragraph 333(1)(a)

Omit "the person was convicted of", substitute "a court passes sentence

for".

67 Application

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.

Schedule 1 Proceeds of crime

Part 2 Pecuniary penalty orders

20 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Part 2--Pecuniary penalty orders

Proceeds of Crime Act 2002

68 Subparagraph 121(4)(a)(i)

After "property", insert ", or property suspected of being subject to the

effective control of the person,".

69 Paragraph 122(1)(a)

Omit all the words after "control", substitute "of the person or another

person".

70 Paragraph 122(1)(b)

Omit all the words after "provided", substitute "to the person or another

person".

71 Paragraph 124(1)(c)

After "illegal activity" (last occurring), insert "and the other unlawful

activity".

72 Paragraph 124(5)(a)

After "property", insert ", or property that is suspected of being subject

to the

effective control of the person,".

73 Section 130

Omit "offence" (first occurring), substitute "

unlawful activity".

74 Paragraph 130(a)

Omit "offence", substitute "unlawful activity".

75 Subsection 133(1)

Omit "one or both of subsections (2) and (3) apply", substitute "one or

more of subsections (2), (2A) or (3) apply".

76 After subsection 133(2)

Insert:

(2A)

The

penalty amount may be increased if:

Proceeds of crime Schedule 1

Pecuniary penalty orders Part 2

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 21

(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

77 Application

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.

78 At the end of section 134

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.

Schedule 1 Proceeds of crime

Part 2 Pecuniary penalty orders

22 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

79 Subsection 136(2)

Omit ", and any affidavit supporting the application,".

80 Subsections 136(3) and (4)

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.

81 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.

82 Subsection 146(1)

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.

83 Subsection 146(2)

Omit "However, unless", substitute "Unless".

84 After subsection 146(2)

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.

85 Subsection 146(3)

Proceeds of crime Schedule 1

Pecuniary penalty orders Part 2

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 23

Repeal the subsection, substitute:

(3)

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

serious offence.

86 Section 147 (including the note)

After "confirmation" (wherever occurring), insert "or variation".

Note:

The heading to section 147 is altered by inserting "or variation" after "confirmation".

87 Subsection 148(1)

After "confirmation", insert "or variation".

Note:

The heading to section 148 is altered by inserting "or variation" after "confirmation".

88 Subparagraph 148(2)(a)(i)

Omit "the offence", substitute "any of the offences to which the order

relates".

89 Subparagraph 148(2)(a)(ii)

Omit "that offence", substitute "any of those offences".

90 Paragraph 148(2)(a)

Omit "the conviction", substitute "such a conviction".

91 After section 149

Insert:

149A Court may vary pecuniary penalty order

(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.

Schedule 1 Proceeds of crime

Part 2 Pecuniary penalty orders

24 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(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

92 Subsection 150(1)

After "149,", insert "or varies the order under section 149A,".

Note:

The heading to section 150 is altered by inserting "or variation" after "confirmation".

93 Subsection 150(2)

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".

94 Application

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.

95 Paragraph 335(6)(a)

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)

restraining order under section 17;

(ii)

forfeiture order under section 48;

(iii)

pecuniary penalty order under subparagraph

116(1)(b)(i); and

Proceeds of crime Schedule 1

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Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 25

96 Paragraph 335(6)(b)

After "magistrate", insert "(the convicting magistrate)".

97 Subsection 335(6)

Omit "the magistrate", substitute "a magistrate of the same court as the

convicting magistrate".

98 Application

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.

Schedule 1 Proceeds of crime

Part 3 Examinations

26 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Part 3--Examinations

Proceeds of Crime Act 2002

99 Paragraph 180(1)(b)

Repeal the paragraph, substitute:

(b) a person who is a

suspect in relation to the restraining order;

100 Subsection 180(1)

Omit "affairs", substitute "

affairs".

101 Subsection 180(1)

Omit "(including the nature and location of any property)".

102 Application

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.

103 After section 180

Insert:

180A Examination orders relating to applications for exclusion from

forfeiture

(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

Proceeds of crime Schedule 1

Examinations Part 3

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 27

(b) the court makes a decision on the application.

180B Examination orders relating to applications for compensation

(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.

180C Examination orders relating to applications under section 102

(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.

180D Examination orders relating to enforcement of confiscation

orders

(1)

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

Schedule 1 Proceeds of crime

Part 3 Examinations

28 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(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.

180E Examination orders relating to restraining orders revoked

under section 44

(1)

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.

104 Application

(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.

Proceeds of crime Schedule 1

Examinations Part 3

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 29

(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.

105 Subsection 181(1)

Omit "affairs", substitute "

affairs".

106 Subsection 181(1)

Omit "(including the nature and location of any property)".

107 Application

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.

108 Section 182

Before "An", insert "(1)".

109 At the end of section 182

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.

Schedule 1 Proceeds of crime

Part 3 Examinations

30 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

110 Subsection 187(4)

Omit "affairs" (first occurring), substitute "

affairs".

111 After paragraph 187(4)(a)

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

112 Paragraph 187(5)(b)

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.

113 Application

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.

114 Section 195 (penalty)

Proceeds of crime Schedule 1

Examinations Part 3

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 31

Omit "6 months or 30 penalty units", substitute "2 years or 120 penalty

units".

115 Subsection 196(1) (penalty)

Omit "6 months or 30 penalty units", substitute "2 years or 120 penalty

units".

116 After section 197

Insert:

197A Giving false or misleading answers or documents

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

(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.

117 Subparagraph 269(a)(ii)

Omit "affairs", substitute "

affairs".

118 Section 338

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.

119 Section 338 (definition of examination order)

After "180", insert ", 180A, 180B, 180C, 180D, 180E".

Schedule 1 Proceeds of crime

Part 4 Notices

32 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Part 4--Notices

Proceeds of Crime Act 2002

120 After paragraph 202(5)(c)

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;

121 Paragraph 202(5)(d)

Omit "such property", substitute "property referred to in paragraph (c)

or (ca)".

122 Paragraph 202(5)(f)

After "(c),", insert "(ca),".

123 Subsection 202(6)

After "(5)(c)(ii)", insert "or paragraph (5)(ca)".

124 Subsection 202(6)

Omit "subparagraph" (second occurring), substitute "provision".

125 After paragraph 203(1)(c)

Insert:

(ca) specify the form and manner in which those documents are to

be produced; and

126 Subsection 203(2)

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

Proceeds of crime Schedule 1

Notices Part 4

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 33

(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.

127 At the end of section 211

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

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).

128 Application

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.

129 Paragraphs 213(1)(a) and (b)

After "is", insert "or was".

130 Paragraph 213(1)(d)

Omit "such".

Schedule 1 Proceeds of crime

Part 4 Notices

34 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

131 Paragraph 213(1)(e)

After "hold", insert "or held".

132 After paragraph 213(1)(e)

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;

133 At the end of subsection 213(3)

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.

134 Section 214

Before "The", insert "(1)".

135 Paragraph 214(d)

After "provided", insert ", having regard to the record-keeping

capabilities of the financial institution (to the extent known to the

officer)".

136 Paragraph 214(e)

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

137 At the end of section 214

Add:

Proceeds of crime Schedule 1

Notices Part 4

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 35

(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.

138 Section 218

Before "A", insert "(1)".

139 At the end of section 218

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

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).

140 Application

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.

141 Subsection 219(1)

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:

Schedule 1 Proceeds of crime

Part 4 Notices

36 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(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.

142 Paragraph 219(2)(a)

Omit "in respect of whose

account the information is sought",

substitute "who holds the

account or to whom the

stored value card

was issued".

143 Paragraph 219(2)(b)

After "account", insert "or card".

144 Subsection 219(3)

Omit "in question", substitute "or to whom the card was issued".

145 Paragraph 220(1)(a)

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

146 Application

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.

147 Section 338 (definition of account)

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)

fixed term deposit; or

(ii) a safety deposit box; and

Proceeds of crime Schedule 1

Notices Part 4

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 37

(b) 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.

148 Section 338

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.

Schedule 1 Proceeds of crime

Part 5 Ancillary orders

38 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Part 5--Ancillary orders

Proceeds of Crime Act 2002

149 After paragraph 39(1)(c)

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;

150 Paragraph 39(1)(d)

After "owner" (first occurring), insert "or a previous owner".

151 Paragraph 39(1)(d)

After "owner" (second occurring), insert "or previous owner".

152 After paragraph 39(1)(d)

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;

153 Paragraph 39(1)(g)

After "restraining order", insert ", or who has

effective control of

property covered by a restraining order,".

154 After subsection 39(3)

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

Proceeds of crime Schedule 1

Ancillary orders Part 5

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 39

(b)

the

restraining order to which the application relates was

considered, in accordance with subsection 26(4), without

notice having been given.

155 After subsection 39(4)

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.

156 After section 39

Insert:

39A Privilege against self incrimination etc. does not apply

(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

(d) in proceedings for enforcement of a

confiscation order.

39B Application to revoke ancillary 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

Schedule 1 Proceeds of crime

Part 5 Ancillary orders

40 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(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.

157 Section 40 (note)

After "restraining order", insert ", or who has effective control of

property covered by a restraining order,".

158 Application

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.

Proceeds of crime Schedule 1

Evidence Part 6

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 41

Part 6--Evidence

Proceeds of Crime Act 2002

159 Subsection 64(2)

Omit "If the application relates to a person's conviction of an

indictable offence, the court", substitute "The court".

160 Paragraph 64(2)(a)

Repeal the paragraph, substitute:

(a) the transcript of any proceeding against the person for an

offence that constitutes

unlawful activity; and

161 Application

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.

162 Subsection 138(2)

Omit "If the application relates to a person's conviction of an

indictable offence, the court", substitute "The court".

163 Paragraph 138(2)(a)

Repeal the paragraph, substitute:

(a) the transcript of any proceeding against the person for an

offence that constitutes

unlawful activity; and

164 Application

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.

165 After section 318

Insert:

Schedule 1 Proceeds of crime

Part 6 Evidence

42 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

318A Admissibility in proceedings of statements made at

examination by absent witness

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

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;

(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

Proceeds of crime Schedule 1

Evidence Part 6

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 43

(b) any reason the absent witness may have had for concealing or

misrepresenting a material matter; and

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.

318B Objection to admission of statements made at examination

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):

Schedule 1 Proceeds of crime

Part 6 Evidence

44 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(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.

166 Application

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.

Proceeds of crime Schedule 1

Definitions Part 7

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 45

Part 7--Definitions

Proceeds of Crime Act 2002

167 Subsection 19(4)

Omit "

indictable".

Note:

The heading to section 19 is altered by omitting "people suspected of committing" and

substituting "property suspected of being proceeds of".

168 Application

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.

169 Subsection 337(3)

Repeal the subsection.

170 After subsection 337(4)

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.

171 At the end of section 337

Add:

(7) To avoid doubt, property may be subject to the effective control of

more than one person.

172 Paragraph 337A(1)(a)

Before "

restraining", insert "

production order,

search warrant,".

173 Paragraph 337A(2)(a)

After "

freezing order", insert ",

production order,

search warrant".

174 Subsection 337A(3)

Schedule 1 Proceeds of crime

Part 7 Definitions

46 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Repeal the subsection.

175 Application

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".

178 Application

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)

Proceeds of crime Schedule 1

Definitions Part 7

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 47

After "offence", insert ", a

foreign indictable offence or an

indictable

offence of Commonwealth concern".

181 Application

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 be dealt with

as a summary offence in some circumstances)".

Schedule 1 Proceeds of crime

Part 8 Technical amendments relating to orders

48 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Part 8--Technical amendments relating to orders

Proceeds of Crime Act 2002

183 At the end of subsection 45(1)

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".

184 Application

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.

185 Section 84

Before "The court", insert "(1)".

186 At the end of section 84

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.

187 Application

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.

188 Subsection 85(1)

Omit "84(a)", substitute "84(1)(a)".

189 Subsection 85(2)

Omit "84(b)", substitute "84(1)(b)".

Proceeds of crime Schedule 1

Technical amendments relating to orders Part 8

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 49

190 Section 110

Before "The court", insert "(1)".

191 At the end of section 110

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.

192 Application

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.

193 Subsection 111(1)

Omit "110(a)", substitute "110(1)(a)".

194 Subsection 111(2)

Omit "110(b)", substitute "110(1)(b)".

195 Paragraph 316(1)(b)

Omit "has an interest in the property that is the subject of the

proceeding", substitute "would be affected by the order".

196 Paragraph 316(2)(b)

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).

197 Application

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.

Proceeds of crime Schedule 1

Confiscated Assets Account Part 9

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 51

Part 9--Confiscated Assets Account

Division 1--Simplification of accounting

Proceeds of Crime Act 2002

198 Subsection 296(2)

Repeal the subsection.

199 Subsection 297(1)

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:".

200 Subsection 297(2)

Repeal the subsection.

201 Section 299

Repeal the section.

202 Section 338 (definition of distributable funds)

Repeal the definition.

203 Section 338 (definition of suspended funds)

Repeal the definition.

Division 2--Crediting amounts paid to settle proceedings

Proceeds of Crime Act 2002

204 At the end of subsection 296(1)

Add:

; and (h) amounts paid to the Commonwealth in settlement of

proceedings connected with this Act.

205 Application

Schedule 1 Proceeds of crime

Part 9 Confiscated Assets Account

52 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

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.

Division 3--Payments by the Commonwealth under court

orders

Proceeds of Crime Act 2002

206 At the end of section 55

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.

207 After paragraph 297(1)(f)

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 or subparagraph 102(d)(ii);

208 Paragraph 297(1)(g)

Repeal the paragraph, substitute:

(g) making any payments under an arrangement under paragraph

88(1)(b) or subsection 289(2);

209 Application

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.

Proceeds of crime Schedule 1

Other amendments Part 10

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 53

Part 10--Other amendments

Administrative Decisions (Judicial Review) Act 1977

210 After paragraph (ya) of Schedule 1

Insert:

(yb) decisions of the DPP to apply for an order under the

Proceeds of Crime Act 2002;

211 Application

The amendment made by item 210 applies in relation to decisions made

on or after the commencement of this item.

Proceeds of Crime Act 2002

212 Paragraph 142(3)(a)

After "property", insert "(other than an encumbrance in which the

person referred to paragraph (1)(a) has an

interest)".

213 Paragraph 169(3)(a)

After "property", insert "(other than an encumbrance in which the

person referred to in paragraph (1)(a) has an

interest)".

214 Part 4-4 (heading)

Repeal the heading, substitute:

Part 4-4--Charges over restrained property to

secure certain amounts payable to the

Commonwealth

215 Paragraph 302(a)

After "property", insert "(other than an encumbrance in which the

person who is liable to pay the amount has an

interest)".

216 Division 2 of Part 4-4 (heading)

Repeal the heading.

Schedule 1 Proceeds of crime

Part 10 Other amendments

54 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

217 Paragraph 302C(a)

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)".

218 Paragraph 307(3)(a)

After "property", insert "(other than an encumbrance in which the

person convicted of the offence has an

interest)".

219 Application

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.

220 After section 315

Insert:

315A Court may hear multiple applications at same time

A court may hear and determine 2 or more applications under this

Act at the same time.

221 Application

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.

Search warrants Schedule 2

Seized things Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 55

Schedule 2--Search warrants

Part 1--Seized things

Crimes Act 1914

1 Subsection 3C(1) (definition of magistrate)

Omit "3ZW", substitute "3ZQZ".

2 Section 3CA

Omit "3ZW" (wherever occurring), substitute "3ZQZ".

3 Subsection 3F(5)

Repeal the subsection.

4 Paragraph 3L(1B)(b)

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;

5 Subsections 3UF(4) to (7)

Repeal the subsections.

Note:

The heading to section 3UF is replaced by the heading "Seizure notices".

6 Subsection 3UF(9)

Repeal the subsection.

7 Section 3UG

Repeal the section.

8 Subsection 3UK(1)

Omit "sections 3UF and 3UG", substitute "section 3UF".

9 After Division 4B of Part IAA

Insert:

Schedule 2 Search warrants

Part 1 Seized things

56 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Division 4C--Using, sharing and returning things seized

and documents produced

Subdivision A--Using and sharing things seized and documents

produced

3ZQU Purposes for which things and documents may be used and

shared

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 the

Proceeds of Crime Act 2002;

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 the Privacy Act 1988;

(i) investigating or inquiring into a corruption issue under the

Law Enforcement Integrity Commissioner Act 2006;

Search warrants Schedule 2

Seized things Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 57

(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):

Schedule 2 Search warrants

Part 1 Seized things

58 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

law of a State or Territory;

(d) proceedings under a corresponding law (within the meaning

of the Proceeds of Crime Act 1987 or the Proceeds 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

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

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(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.

3ZQV Operating seized electronic equipment

(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.

3ZQW Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in

section 3ZQV:

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(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.

Subdivision B--Returning things seized under Division 2 or 4

3ZQX When things seized under Division 2 or 4 must be returned

(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

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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.

Subdivision C--Returning things seized under Division 3

3ZQY When things seized under Division 3 must be returned

(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

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.

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3ZQZ Magistrate may permit a thing seized under Division 3 to be

retained

(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) before the end of 60 days after the seizure; or

(b) before the end of a period previously specified in an order in

relation to the thing under this section.

(2) If the magistrate is satisfied that the thing is being used, or is

required to be used, for a purpose mentioned in section 3ZQU or

for other judicial or administrative review proceedings, the

magistrate may order that the thing may be retained for the period

specified in the order.

(3) Before making the application, the Commissioner must:

(a) take reasonable steps to discover who has an interest in the

retention of the thing; and

(b) if it is practicable to do so, notify each person who the

Commissioner believes to have such an interest of the

proposed application.

Subdivision D--Returning things seized under Division 3A

3ZQZA Owner may request return of thing

(1) The Commissioner must take reasonable steps to return a thing

seized under Division 3A if the owner requests the return of the

thing.

(2) However, the Commissioner does not have to take those steps if:

(a) the Commissioner suspects on reasonable grounds that if the

thing is returned to the owner, the thing is likely to be used

by the owner or another person in the commission of a

terrorist act, a terrorism offence or a serious offence; or

(b) the Commissioner is satisfied that the thing is being used, or

is required to be used, for a purpose mentioned in

section 3ZQU or for other judicial or administrative review

proceedings.

(3)

If:

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(a) the owner of a thing requests the return of the thing:

(i) within 90 days after the date of the seizure notice served

under section 3UF in relation to the thing; or

(ii) if subsection 3UF(2) applied in relation to the thing so

that a seizure notice was not served--within 90 days

after the day on which the thing was seized; and

(b) the thing has not been returned to the owner by the end of the

90th day;

the Commissioner must, before the end of the 95th day:

(d) apply to a magistrate for an order under section 3ZQZB.

(4) In this section:

terrorist act has the same meaning as in subsection 100.1(1) of the

Criminal Code.

3ZQZB Magistrate may permit a thing seized under Division 3A to

be retained, forfeited etc.

(1) If subsection 3ZQZA(3) applies, the Commissioner may apply to a

magistrate for an order in relation to the thing.

(2) The magistrate must, in determining an application by the

Commissioner under subsection (1), allow the owner of the thing

to appear and be heard.

(3) If the magistrate is satisfied that the thing is being used, or is

required to be used, for a purpose mentioned in section 3ZQU or

for other judicial or administrative review proceedings, the

magistrate may order that the thing may be retained for the period

specified in the order.

(4) If the magistrate is satisfied that there are reasonable grounds to

suspect that, if the thing is returned to the owner, the thing is likely

to be used by the owner or another person in the commission of a

terrorist act, a terrorism offence or a serious offence, the magistrate

may make any of the following orders:

(a) that the thing may be retained for the period specified in the

order;

(b) that the thing is forfeited to the Commonwealth;

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owner;

(d) that the thing is to be otherwise sold or disposed of.

(5) If the magistrate is not satisfied as mentioned in subsection (3) or

(4), the magistrate must order that the thing be returned to the

owner.

(6) In this section:

terrorist act has the same meaning as in subsection 100.1(1) of the

Criminal Code.

10 Sections 3ZV and 3ZW

Repeal the sections, substitute:

3ZW Delegation by Commissioner

The Commissioner may delegate to a constable any or all of the

Commissioner's powers, functions or duties under this Part.

11 Application

The amendments made by this Part apply in relation to:

(a) a thing seized before, on or after the commencement of this

Part; and

(b) a document produced before, on or after the commencement

of this Part.

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Part 2--Use of equipment under warrant

Crimes Act 1914

12 Subparagraph 3K(2)(a)(ii)

Repeal the subparagraph, substitute:

(ii) the executing officer or constable assisting suspects on

reasonable grounds that the thing contains or constitutes

evidential material; or

13 After subsection 3K(3)

Insert:

(3AA) The executing officer need not comply with paragraph (3)(a) or (b)

if he or she believes on reasonable grounds that to do so might:

(a) endanger the safety of a person; or

(b) prejudice an investigation or prosecution.

14 Subsections 3K(3A) and (3B)

Omit "72 hours", substitute "14 days".

15 After subsection 3K(3C)

Insert:

(3D) A single extension cannot exceed 7 days.

16 Subsection 3L(1)

Repeal the subsection, substitute:

(1) The executing officer or a constable assisting may operate

electronic equipment at the warrant premises to access data

(including data not held at the premises).

Note:

A constable can obtain an order requiring a person with knowledge of

a computer or computer system to provide assistance: see

section 3LA.

17 Subsection 3L(1A)

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Omit "believes on reasonable grounds that any data accessed by

operating the electronic equipment might constitute", substitute

"suspects on reasonable grounds that any data accessed by operating the

electronic equipment constitutes".

18 Paragraphs 3L(1A)(a) and (b)

Omit "the data", substitute "any or all of the data accessed by operating

the electronic equipment".

19 Subsection 3L(4)

Omit "believes", substitute "suspects".

20 Section 3LA

Repeal the section, substitute:

3LAA Use of electronic equipment at other place

(1) If electronic equipment found at the warrant premises is moved to

another place under subsection 3K(2), the executing officer or a

constable assisting may operate the equipment to access data

(including data held at another place).

(2) If the executing officer or constable assisting suspects on

reasonable grounds that any data accessed by operating the

electronic equipment constitutes evidential material, he or she may

copy any or all of the data accessed by operating the electronic

equipment to a disk, tape or other associated device.

(3) If 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, the

Commissioner must arrange for:

(a) the removal of the data from any device in the control of the

Australian Federal Police; and

(b) the destruction of any other reproduction of the data in the

control of the Australian Federal Police.

(4) If the executing officer or a constable assisting, after operating the

equipment, finds that evidential material is accessible by doing so,

he or she may:

(a) seize the equipment and any disk, tape or other associated

device; or

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(b) if the material can be put in documentary form--put the

material in that form and seize the documents so produced.

(5) A constable may seize equipment under paragraph (4)(a) only if:

(a) it is not practicable to copy the data as mentioned in

subsection (2) or to put the material in documentary form as

mentioned in paragraph (4)(b); or

(b) possession by the occupier of the equipment could constitute

an offence.

3LA Person with knowledge of a computer or a computer system to

assist access etc.

(1) A constable may apply to a magistrate for an order requiring a

specified person to provide any information or assistance that is

reasonable and necessary to allow a constable to do one or more of

the following:

(a) access data held in, or accessible from, a computer or data

storage device that:

(i) is on warrant premises; or

(ii) has been removed from warrant premises under

subsection 3K(2) and is at another place for examination

or processing; or

(iii) has been seized under this Division and is no longer on

the warrant premises;

(b) copy data held in, or accessible from, a computer, or data

storage device, described in paragraph (a) to another data

storage device;

a constable:

(i) data held in, or accessible from, a computer, or data

storage device, described in paragraph (a); or

(ii) data held in a data storage device to which the data was

copied as described in paragraph (b); or

(iii) data held in a data storage device removed from warrant

premises under subsection 3L(1A).

(2) The magistrate may grant the order if the magistrate is satisfied

that:

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(a) there are reasonable grounds for suspecting that evidential

material is held in, or is accessible from, the computer or data

storage device; and

(b) the specified person is:

(i) reasonably suspected of having committed the offence

stated in the relevant warrant; or

(ii) the owner or lessee of the computer or device; or

(iii) an employee of the owner or lessee of the computer or

device; or

(iv) a person engaged under a contract for services by the

owner or lessee of the computer or device; or

(v) a person who uses or has used the computer or device;

(vi) a person who is or was a system administrator for the

system including the computer or device; and

(i) the computer or device or a computer network of which

the computer or device forms or formed a part; or

(ii) measures applied to protect data held in, or accessible

from, the computer or device.

(3)

If:

(a) the computer or data storage device that is the subject of the

order is seized under this Division; and

(b) the order was granted on the basis of an application made

before the seizure;

the order does not have effect on or after the seizure.

Note:

An application for another order under this section relating to the

computer or data storage device may be made after the seizure. If the

other order is made after the computer or device has been removed

from the warrant premises, that other order can specify conditions

relating to the provision of information or assistance.

(4) If the computer or data storage device is not on warrant premises,

the order must:

(a) specify the period within which the person must provide the

information or assistance; and

(b) specify the place at which the person must provide the

information or assistance; and

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as the conditions to which the requirement on the person to

provide the information or assistance is subject.

(5) A person commits an offence if the person fails to comply with the

order.

Penalty for contravention of this subsection: Imprisonment for 2

years.

21 Paragraph 3LB(1)(a)

After "subsection 3L(1)", insert "or 3LAA(1)".

22 Paragraph 3LB(1)(d)

After "subsection 3L(1A) or (2)", insert "or 3LAA(2) or (4)".

23 Section 3M

Repeal the section, substitute:

3M Compensation for damage to electronic equipment

(1) This section applies if:

(a) as a result of equipment being operated as mentioned in

section 3K, 3L or 3LAA:

(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.

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(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) 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.

24 Paragraph 3N(2)(a)

After "paragraph 3L(2)(b)", insert "or 3LAA(4)(b)".

25 Application

(1)

The amendments made by this Part apply in relation to warrants issued

on or after the commencement of this Part.

(2)

However, section 3LA of the Crimes Act 1914 as amended by this Part

applies in relation to orders under that section made after the

commencement of the amendments. For this purpose it does not matter

whether one or more of the following events occurred before, on or

after that commencement:

(a) the issue of the warrant concerned;

(b) the removal or seizure of the computer or data storage device

(if such removal or seizure is relevant to applying for or

making the order concerned).

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2009 71

Schedule 3--Witness protection

Part 1--Amendments

Witness Protection Act 1994

1 Section 3 (paragraph (b) of the definition of complementary

witness protection law)

Omit "by the Minister by notice published in the Gazette", substitute

"under section 3AA".

2 Section 3

Insert:

current NWPP identity, in relation to a participant at a particular

time, means an identity:

(a) provided to the participant under the NWPP; and

(b) being used by the participant at that time.

3 Section 3

Insert:

former NWPP identity, in relation to a participant at a particular

time, means an identity that:

(a) was provided to the person under the NWPP before that time;

and

(b) is not the participant's current NWPP identity at that time.

4 Section 3

Insert:

former participant means a person who has ceased to be included

in the NWPP.

5 Section 3

Insert:

Immigration Secretary means the Secretary of the Department

administered by the Minister who administers the Migration Act

1958.

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72 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

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6 Section 3

Insert:

information, in relation to the identity of a person includes, but is

not limited to, information about one or more of the following in

relation to the person:

(a)

appearance;

(b) voice quality or accent;

(c)

mannerisms;

(d) address or location;

(e) particular skills and qualifications;

(f)

personal

history.

7 Section 3

Insert:

original identity, in relation to a participant, means the identity of

the participant at the time immediately before he or she was first

provided with an identity under the NWPP.

8 Section 3 (definition of participant)

Repeal the definition, substitute:

participant means a person included in the NWPP and, unless the

contrary intention appears, includes a former participant.

9 Section 3

Insert:

State offence that has a federal aspect has the meaning given by

section 3AB.

10 Section 3

Insert:

State participant means a participant:

(a) in relation to a State offence that has a federal aspect; or

(b) in relation to a State offence that does not have a federal

aspect; or

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11 Section 3

Insert:

Territory participant means a participant:

(a) in relation to an offence against a law of a Territory; or

(b) in relation to a commission or inquiry under a law of a

Territory.

12 Section 3 (paragraph (e) of the definition of witness)

Omit "such a person", substitute "a person referred to in paragraph (a),

(b), (c) or (d)".

13 After section 3

Insert:

3AA Declaration of complementary witness protection law

For the purposes of this Act, the Minister may, by legislative

instrument, declare a law of a State or Territory to be a

complementary witness protection law.

3AB State offence that has a federal aspect

An offence against a law of a State is taken, for the purposes of this

Act, to be a State offence that has a federal aspect:

(a) in a case where the offence is being investigated by the

Australian Federal Police--if it would be taken to be a State

offence that has a federal aspect under section 4AA of the

Australian Federal Police Act 1979; and

(b) in a case where the offence is being investigated by the

Australian Crime Commission--if it would be taken to be a

State offence that has a federal aspect under section 4A of the

Australian Crime Commission Act 2002; and

that has a federal aspect if either of the sections referred to in

paragraphs (a) and (b) were to apply.

14 At the end of section 8

Add:

(6) In this section:

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74 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

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participant does not include a former participant.

15 At the end of section 9

Add:

(8) In this section:

participant does not include a former participant.

(9) To avoid doubt, subsection (8) does not affect any obligation of a

former participant under a memorandum of understanding if the

obligation continues (whether expressly or impliedly) to have

effect after the former participant ceased to be included in the

NWPP.

16 Paragraph 11(3)(b)

After "name", insert "for each new identity".

17 Paragraph 11(3)(e)

Repeal the paragraph, substitute:

(e) in the case of a former participant--the date on which the

person became a former participant.

18 Paragraph 11(5)(d)

Omit "19(2)", substitute "19(6)".

19 At the end of section 11

Add:

(6) In this section, participant and former participant do not include a

person who is a former participant only because of the operation of

subsection 13(6).

20 Paragraph 13(2)(b)

Repeal the paragraph, substitute:

(b) permitting persons who hold or occupy designated positions

to acquire and use assumed identities in accordance with

Part IAC of the Crimes Act 1914; and

Note:

The heading to section 13 is replaced by the heading "Action to protect witnesses,

participants and former participants etc.".

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2009 75

21 Paragraph 13(3)(b)

Omit "be entitled if the witness were not included in the NWPP",

substitute "otherwise be entitled".

22 At the end of section 13

Add:

(5) The Commissioner may take the actions referred to in

subsections (1) and (2) in respect of a former participant, or any

other person whose relationship with the former participant is such

that the Commissioner is satisfied that it is appropriate to take

those actions, as if the former participant or other person were a

witness included in the NWPP, if:

(a) the Commissioner considers the actions necessary and

reasonable for the protection of the former participant or the

other person; and

(b) the Commissioner has assessed the suitability of taking the

actions in respect of the former participant or the other

person.

(6) If the Commissioner takes action under subsection (5) in respect of

a person other than a former participant, this Act applies to the

person as if the person were a former participant.

(7) When the Commissioner first takes action under subsection (5) in

respect of a former participant who was a participant under

section 10 or 10A, the Commissioner must give the Immigration

Secretary, or an officer nominated by that Secretary, written notice

that he or she has taken that action.

23 Subparagraph 14(b)(ii)

Before "identity", insert "original".

24 Subsection 15(5)

Omit "former identity", substitute "original identity or a former NWPP

identity".

25 Paragraph 16(1)(a)

Omit "former", substitute "original identity or a former NWPP".

26 Paragraph 16(1)(b)

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Omit "his or her former", substitute "the original identity or the former

NWPP".

27 Subsection 16(1)

Omit "his or her former" (third occurring), substitute "the original

identity or the former NWPP".

28 Subsection 16(2)

Omit "former", substitute "original identity or any former NWPP".

29 Subsection 16(2)

Omit "new", substitute "current NWPP".

30 Subsection 16(4)

Omit "former" (wherever occurring), substitute "original identity or any

former NWPP".

31 Subsection 16(6)

Repeal the subsection.

32 Section 17

Omit "former identity", substitute "original identity or any former

NWPP identity".

33 Subsection 18(1)

Omit "Protection and assistance provided under the NWPP to a

participant", substitute "A participant's inclusion in the NWPP".

Note 1: The heading to section 18 is replaced by the heading "Termination of inclusion in

NWPP and other protection and assistance".

Note 2: The following heading to subsection 18(1) is inserted "Termination of inclusion in

NWPP".

34 Subparagraph 18(1)(b)(iv)

Omit "protection and assistance for the participant", substitute "the

participant's inclusion in the NWPP".

35 Subsection 18(1)

Omit "the protection and assistance should", substitute "the

participant's inclusion in the NWPP should".

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2009 77

36 Subsection 18(2)

Omit "that protection and assistance provided under the NWPP to a

participant be terminated", substitute "that a participant's inclusion in

the NWPP be terminated (the termination decision)".

37 After subsection 18(2)

Insert:

Termination of protection and assistance to former participants

etc.

(2A) Protection and assistance provided under subsection 13(5) to a

person (including a former participant):

(a) must be terminated by the Commissioner if the person

requests in writing that it be terminated; or

(b) may be terminated by a Deputy Commissioner if:

(i) the Deputy Commissioner discovers that the person had

knowingly given information to the Commissioner that

is false or misleading in a material particular; or

(ii) the person's conduct or threatened conduct is, in the

opinion of the Deputy Commissioner, likely to

compromise the integrity of the NWPP; or

(iii) the circumstances that gave rise to the need for

protection and assistance for the person cease to exist;

(iv) the person deliberately breaches an undertaking given to

the Commonwealth, a State or a Territory that is

relevant to the provision of that protection and

assistance; or

(v) there is, in the opinion of the Deputy Commissioner, no

reasonable justification for protection and assistance to

continue to be provided to the person;

and the Deputy Commissioner is of the opinion that, in the

circumstances of the case, the protection and assistance

should be terminated.

(2B) If a Deputy Commissioner makes a decision under

paragraph (2A)(b) that protection and assistance provided to a

person be terminated (the termination decision), the Deputy

Commissioner must take reasonable steps to notify the person of

the decision.

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No. , 2009

38 Subsection 18(3)

Omit "participant who receives such a notification", substitute "person

who receives notification of a termination decision".

Note:

The following heading to subsection 18(3) is inserted "Review".

39 Paragraphs 18(4)(b) and (c)

Omit "participant" (wherever occurring), substitute "person".

40 Subsection 18(5)

Omit "A decision of a Deputy Commissioner under paragraph (1)(b)

that protection and assistance provided under the NWPP to a participant

be terminated", substitute "A termination decision that relates to a

person".

Note:

The following heading to subsection 18(5) is inserted "When termination decisions take

effect".

41 Subparagraph 18(5)(a)(i)

Omit "participant's", substitute "person's".

42 Subparagraph 18(5)(a)(ii)

Omit "participant", substitute "person".

43 Paragraphs 18(5)(b), (c), (d) and (e)

Omit "participant" (wherever occurring), substitute "person".

44 Subsection 18(6)

Repeal the subsection, substitute:

Notification of Immigration Secretary

(6)

If:

(a) a Deputy Commissioner makes a termination decision in

relation to a person; and

(b) the person was at any time a participant under section 10 or

10A;

the Commissioner must give the Immigration Secretary, or an

officer nominated by that Secretary, written notice of that decision.

45 At the end of section 18

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2009 79

Add:

(7) In this section:

participant does not include a former participant.

46 Subsection 19(1)

Repeal the subsection, substitute:

(1) If a participant has been provided with a new identity under the

NWPP, a Deputy Commissioner may, if he or she considers it

appropriate to do so, take such action as is necessary to restore the

original identity or any former NWPP identity of the participant.

47 Subsection 19(2)

Omit "former".

48 Subsection 19(3)

Omit "former participant's former identity, the former", substitute

"original identity or any former NWPP identity of the participant, the".

49 Subsections 19(5) and (6)

Repeal the subsections, substitute:

(5) If the Commissioner or a Deputy Commissioner takes action under

this section to restore the original identity or any former NWPP

identity of a Commonwealth participant, a State participant or a

Territory participant, the Commissioner or a Deputy Commissioner

may give a notice to the participant under subsection (6).

(6)

The

notice:

(a) must be in writing; and

(b) must require the participant to return to the Commissioner,

within 10 days of the giving of the notice, all documents

provided to the participant that relate to:

(i) the participant's current NWPP identity; and

(ii) any former NWPP identity of the participant that is not

being restored.

(7) A person commits an offence if:

(a) the person is given a notice under subsection (6); and

(b) the person refuses or fails to comply with the notice.

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Penalty: 10 penalty units.

50 Paragraph 20(c)

Omit "new identity or new location", substitute "current NWPP identity

or current location".

51 Section 21

After "conferred", insert ", or the performance or purported

performance of a function conferred or a duty imposed,".

52 Section 22

Repeal the section, substitute:

22 Offences relating to Commonwealth or Territory participants

Disclosure of information about Commonwealth or Territory

participant

(1) A person commits an offence if:

(a) the person discloses information about an individual; and

(b) the individual is a participant; and

participant; and

(d) either or both of the following apply:

(i) the individual has a current NWPP identity at the time

the information is disclosed and the information is about

the original identity or a former NWPP identity of the

individual;

(ii) there is a risk that disclosure of the information will

reveal that the individual is a participant.

Penalty: Imprisonment for 2 years.

Disclosure of information about individual undergoing assessment

as Commonwealth or Territory participant

(2) A person commits an offence if:

(a) the person discloses information about an individual; and

(b) the individual is undergoing assessment for inclusion in the

NWPP at the time the information is disclosed; and

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assessment, the individual would be a Commonwealth

participant or a Territory participant; and

(d) there is a risk that disclosure of the information will reveal

that the individual is undergoing such assessment.

Penalty: Imprisonment for 2 years.

Disclosure of information that may compromise security of

Commonwealth or Territory participant

(3) A person commits an offence if:

(a) the person discloses information about an individual; and

(b) the individual is a participant; and

participant; and

(d) either or both of the following apply:

(i) the individual has a current NWPP identity at the time

the information is disclosed and the information is about

the original identity or a former NWPP identity of the

individual;

(ii) there is a risk that disclosure of the information will

reveal that the individual is a participant; and

(e) there is a risk that disclosure of the information will

compromise the security of the individual.

Penalty: Imprisonment for 10 years.

Disclosure of information that may compromise security of

individual undergoing assessment as Commonwealth or Territory

participant

(4) A person commits an offence if:

(a) the person discloses information about an individual; and

(b) the individual is undergoing assessment for inclusion in the

NWPP at the time the information is disclosed; and

assessment, the individual would be a Commonwealth

participant or a Territory participant; and

(d) there is a risk that disclosure of the information will reveal

that the individual is undergoing such assessment; and

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(e) there is a risk that disclosure of the information will

compromise the security of the individual.

Penalty: Imprisonment for 10 years.

(5) Subsections (1), (2), (3) and (4) do not apply to a disclosure by a

person if:

(a) the person has been authorised by the Commissioner to make

the disclosure; or

(b) the disclosure is made for the purpose of making a complaint,

or providing information, to the Ombudsman under the

Ombudsman Act 1976; or

Integrity Commissioner, under the Law Enforcement

Integrity Commissioner Act 2006, an allegation or

information that raises a corruption issue; or

(d) the disclosure is made for the purpose of:

(i) giving information that raises an AFP conduct or

practices issue (within the meaning of the Australian

Federal Police Act 1979); or

(ii) investigating or resolving an AFP conduct or practices

issue under Part V of that Act.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (5) (see subsection 13.3(3) of the Criminal Code).

(6) Absolute liability applies to paragraphs (1)(c), (2)(c), (3)(c) and

(4)(c).

Note:

For absolute liability, see section 6.2 of the Criminal Code.

(7) To avoid doubt, a person may be convicted of an offence against

subsection (1), (2), (3) or (4) because of a risk that a disclosure will

have a particular effect even if the disclosure does not actually

have that effect.

22A Offences relating to State participants

Disclosure of information about State participant

(1) A person commits an offence if:

(a) the person is:

(i) a Commonwealth officer; or

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(ii) a Commonwealth participant; or

(iii) a State participant; or

(iv) a Territory participant; or

(v) any other person; and

(b) the person discloses information about an individual; and

(d) the individual is a State participant; and

(e) either or both of the following apply:

(i) the individual has a current NWPP identity at the time

the information is disclosed and the information is about

the original identity or a former NWPP identity of the

individual;

(ii) there is a risk that disclosure of the information will

reveal that the individual is a participant; and

(f) if the person disclosing the information is a person other than

a person referred to in subparagraph (a)(i), (ii) or (iv)--there

is a risk that disclosure of the information will adversely

affect the integrity of the NWPP.

Penalty: Imprisonment for 2 years.

Disclosure of information about individual undergoing assessment

as State participant

(2) A person commits an offence if:

(a) the person is:

(i) a Commonwealth officer; or

(ii) a Commonwealth participant; or

(iii) a State participant; or

(iv) a Territory participant; or

(v) any other person; and

(b) the person discloses information about an individual; and

NWPP at the time the information is disclosed; and

(d) if the individual were included in the NWPP following that

assessment, the individual would be a State participant; and

(e) there is a risk that disclosure of the information will reveal

that the individual is undergoing such assessment; and

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(f) if the person disclosing the information is a person other than

a person referred to in subparagraph (a)(i), (ii) or (iv)--there

is a risk that disclosure of the information will adversely

affect the integrity of the NWPP.

Penalty: Imprisonment for 2 years.

Disclosure of information that may compromise security of State

participant

(3) A person commits an offence if:

(a) the person is:

(i) a Commonwealth officer; or

(ii) a Commonwealth participant; or

(iii) a State participant; or

(iv) a Territory participant; or

(v) any other person; and

(b) the person discloses information about an individual; and

(d) the individual is a State participant; and

(e) either or both of the following apply:

(i) the individual has a current NWPP identity at the time

the information is disclosed and the information is about

the original identity or a former NWPP identity of the

individual;

(ii) there is a risk that disclosure of the information will

reveal that the individual is a participant; and

(f) there is a risk that disclosure of the information will

compromise the security of the individual; and

(g) if the person disclosing the information is a person other than

a person referred to in subparagraph (a)(i), (ii) or (iv)--there

is a risk that the disclosure of the information will adversely

affect the integrity of the NWPP.

Penalty: Imprisonment for 10 years.

Disclosure of information that may compromise security of

individual undergoing assessment as State participant

(4) A person commits an offence if:

(a) the person is:

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(i) a Commonwealth officer; or

(ii) a Commonwealth participant; or

(iii) a State participant; or

(iv) a Territory participant; or

(v) any other person; and

(b) the person discloses information about an individual; and

NWPP at the time the information is disclosed; and

(d) if the individual were included in the NWPP following that

assessment, the individual would be a State participant; and

(e) there is a risk that disclosure of the information will reveal

that the individual is undergoing such assessment; and

(f) there is a risk that disclosure of the information will

compromise the security of the individual; and

(g) if the person disclosing the information is a person other than

a person referred to in subparagraph (a)(i), (ii) or (iv)--there

is a risk that disclosure of the information will adversely

affect the integrity of the NWPP.

Penalty: Imprisonment for 10 years.

(5) Subsections (1), (2), (3) and (4) do not apply to a disclosure by a

person if:

(a) the person has been authorised by the Commissioner to make

the disclosure; or

(b) the disclosure is made for the purpose of making a complaint,

or providing information, to the Ombudsman under the

Ombudsman Act 1976; or

Integrity Commissioner, under the Law Enforcement

Integrity Commissioner Act 2006, an allegation or

information that raises a corruption issue; or

(d) the disclosure is made for the purpose of:

(i) giving information that raises an AFP conduct or

practices issue (within the meaning of the Australian

Federal Police Act 1979); or

(ii) investigating or resolving an AFP conduct or practices

issue under Part V of that Act.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (5) (see subsection 13.3(3) of the Criminal Code).

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(6) Absolute liability applies to paragraphs (1)(d), (2)(d), (3)(d) and

(4)(d).

Note:

For absolute liability, see section 6.2 of the Criminal Code.

(7) To avoid doubt, a person may be convicted of an offence against

subsection (1), (2), (3) or (4) because of a risk that a disclosure will

have a particular effect even if the disclosure does not actually

have that effect.

22B Offences relating to disclosure of information about the NWPP

Disclosures by participants and persons undergoing assessment

(1) A person commits an offence if:

(a) the person is, or is undergoing or has undergone assessment

for inclusion in the NWPP as, one of the following:

(i) a Commonwealth participant;

(ii) a Territory participant;

(iii) a State participant; and

(b) the person discloses any of the following:

(i) the fact that he or she is such a participant, or is

undergoing or has undergone such assessment;

(ii) information about the way in which the NWPP operates;

(iii) information about the Commissioner, a Deputy

Commissioner, any AFP employee or any special

member of the Australian Federal Police who is or has

been involved in the NWPP;

(iv) the fact that he or she has signed a memorandum of

understanding;

(v) any details of a memorandum of understanding that he

or she has signed.

Penalty: Imprisonment for 5 years.

Disclosures by other persons

(2) A person (other than a person referred to in paragraph (1)(a))

commits an offence if:

(a) the person discloses information; and

(b) the information is either or both of the following:

(i) information about the way in which the NWPP operates;

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(ii) information about the Commissioner, a Deputy

Commissioner, any AFP employee or any special

member of the Australian Federal Police who is or has

been involved in the NWPP; and

or both of the following:

(i) adversely affect the integrity of the NWPP;

(ii) compromise the security of the Commissioner, a Deputy

Commissioner, or an AFP employee or special member

of the Australian Federal Police who is or has been

involved in the NWPP.

Penalty: Imprisonment for 5 years.

(3) Subsections (1) and (2) do not apply to a disclosure by a person if:

(a) the person has been authorised by the Commissioner to make

the disclosure; or

(b) the disclosure is made for the purpose of making a complaint,

or providing information, to the Ombudsman under the

Ombudsman Act 1976; or

Integrity Commissioner, under the Law Enforcement

Integrity Commissioner Act 2006, an allegation or

information that raises a corruption issue; or

(d) the disclosure is made for the purpose of:

(i) giving information that raises an AFP conduct or

practices issue (within the meaning of the Australian

Federal Police Act 1979); or

(ii) investigating or resolving an AFP conduct or practices

issue under Part V of that Act.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) To avoid doubt, a person may be convicted of an offence against

subsection (2) because of a risk that a disclosure will have a

particular effect even if the disclosure does not actually have that

effect.

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88 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

22C Disclosures to courts, etc.

(1) To avoid doubt, sections 22, 22A and 22B apply to a disclosure of

information to:

(a) a court or tribunal; or

(b) a Royal Commission of the Commonwealth, a State or a

Territory or any other commission of inquiry.

(2) The application of subsection (1) to the disclosure of information

as mentioned in that subsection does not affect the operation of

subsection 26(3).

53 Subsection 25(1)

Omit "subsection (3)", substitute "subsections (3) and (4)".

54 Subsection 25(3)

Omit "and 27", substitute ", 27 and 27A".

55 At the end of section 25

Add:

(4) The Commissioner's powers and functions under subsections 13(5)

and (7) may only be delegated to a Deputy Commissioner, an

Assistant Commissioner, or a person occupying an equivalent or

higher rank in the Australian Federal Police.

56 Paragraph 26(1)(a)

Omit "a Royal Commission or an approved authority", substitute "a

Royal Commission of the Commonwealth, a State or a Territory or any

other commission of inquiry".

57 Paragraphs 26(1)(a) and (b)

After "duties", insert ", or the exercise of powers,".

58 After paragraph 26(1)(b)

Insert:

; or (c) to divulge or communicate to or before such a body

information, if:

(i) the information is about the identity of, or disclosure of

the information is such as to reveal the identity of, an

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2009 89

AFP employee or special member of the Australian

Federal Police who is involved in the operation of the

NWPP; and

(ii) the person has the information as a result of the

performance of functions or duties, or the exercise of

powers, under this Act;

59 Paragraph 26(2)(a)

Omit "a Royal Commission or an approved authority", substitute "a

Royal Commission of the Commonwealth, a State or a Territory or any

other commission of inquiry".

60 After paragraph 26(2)(b)

Insert:

; or (c) to divulge or communicate to or before such a body

information, if:

(i) the information is about the identity of, or disclosure of

the information is such as to reveal the identity of, an

AFP employee or special member of the Australian

Federal Police who is involved in the operation of the

NWPP; and

(ii) the person has the information as a result of the

performance of functions or duties, or the exercise of

powers, in relation to this Act;

61 Subsection 26(3)

After "Commonwealth", insert ", a State or a Territory".

62 Subsection 26(5)

Omit "or a former participant".

63 Subsection 26(5)

Omit "or former participant".

64 Subsection 27(1)

Repeal the subsection, substitute:

(1)

If:

(a) a participant is to be a witness, under the participant's current

NWPP identity, in a criminal proceeding; and

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(b) the participant has a criminal record under his or her original

identity or any former NWPP identity;

the participant must notify the Commissioner that the participant is

to be a witness in the proceeding.

65 Subsection 27(2)

Omit "or former participant".

66 After section 27

Insert:

27A Requirement where participant involved in civil proceedings

(1) If a participant is to be involved, under the participant's current

NWPP identity, in a civil proceeding in which his or her identity is

in issue, the participant must notify the Commissioner that the

participant is involved in the proceeding.

(2) After being notified under subsection (1), the Commissioner may

take any action he or she considers appropriate in the

circumstances.

(3) In this section:

civil proceeding means any proceeding in a court, a tribunal or a

Royal Commission of the Commonwealth, a State or a Territory or

any other commission of inquiry, other than a criminal proceeding,

and, to avoid doubt, each of the following is part of a civil

proceeding:

(a) any proceeding on an ex parte application (including an

application made before pleadings are filed in a court);

(b) the discovery, exchange, production, inspection or disclosure

of intended evidence, documents and reports of persons

intended to be called by a party to give evidence;

(d) any interlocutory or other proceeding prescribed by

regulations for the purposes of this paragraph.

67 Section 28

Repeal the section, substitute:

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2009 91

28 Identity of participant not to be disclosed in court proceedings

etc.

(1) This section applies if one of more of the following matters is in

issue, or may be disclosed, in any proceedings before a court, a

tribunal, or a Royal Commission of the Commonwealth, a State or

a Territory or any other commission of inquiry:

(a) the original identity or a former NWPP identity of:

(i) a Commonwealth participant; or

(ii) a State participant; or

(iii) a Territory participant;

(b) the fact that a person is such a participant;

assessment for inclusion in the NWPP as such a participant.

(2) The court, tribunal or commission:

(a) must, unless it considers that it is not in the interests of

justice to do so, hold in private that part of the proceedings

that relates to the matter referred to in paragraph (1)(a), (b) or

(c); and

(b) must make such orders relating to the suppression of

publication of evidence given before it as, in its opinion, will

ensure that the matter referred to in paragraph (1)(a), (b) or

justice to do so, make such other orders as it considers

appropriate to ensure that neither of the following is made

public:

(i) the matter referred to in paragraph (1)(a), (b) or (c);

(ii) information that may compromise the security of a

person referred to in any of those paragraphs.

(3) To avoid doubt, paragraph (2)(b) does not prevent the taking of a

transcript of court proceedings, but the court may make an order

for how the transcript is to be dealt with, including an order

suppressing its publication.

28A Offence of contravening an order under section 28

(1) A person commits an offence if:

(a) an order is in force under section 28; and

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(b) the person engages in conduct; and

Penalty: Imprisonment for 2 years.

(2) To avoid doubt, this section does not limit any other powers of the

body that made the order under section 28.

68 Subsection 30(1)

Omit "section 27", substitute "sections 27 and 27A".

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2009 93

Part 2--Application and saving provisions

69 Saving provision--declarations of complementary witness

protection laws

(1)

A declaration made under paragraph (b) of the definition of

complementary witness protection law in section 3 of the Witness

Protection Act 1994 before the commencement of this item is not, and

is taken never to have been, a legislative instrument.

(2)

If the declaration was in force just before the commencement of this

item, the declaration has effect from that commencement, subject to

subitem (1), as if it had been made under section 3AA of that Act as

inserted by this Schedule.

70 Application--action in respect of former participants etc.

The Commissioner may take action under subsection 13(5) of the

Witness Protection Act 1994, as inserted by this Schedule, on or after

the commencement of this item, whether the former participant

concerned became a former participant before, on or after that

commencement.

71 Application--non-disclosure of former identity

(1)

Section 16 of the Witness Protection Act 1994, as amended by this Act,

applies on and after the commencement of this item in relation to a

pre-commencement permission given to a participant for a particular

purpose as if it were a post-commencement permission given for the

participant not to disclose his or her original identity for that purpose.

(2)

In this item:

post-commencement permission means a permission given under

paragraph 16(1)(b) of the Witness Protection Act 1994, as in force at the

commencement of this item.

pre-commencement permission means a permission given under

paragraph 16(1)(b) of the Witness Protection Act 1994 before the

commencement of this item.

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94 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

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Schedule 4--Criminal organisation and

association offences

Criminal Code Act 1995

1 At the end of Chapter 9 of the Criminal Code

Add:

Part 9.9--Criminal associations and organisations

Division 390--Criminal associations and organisations

Subdivision A--Definitions

390.1 Definitions

(1) In this Division:

ancillary offence, in relation to a State offence (the primary

offence), means:

(a) a State offence of conspiring to commit the primary offence;

(b) a State offence of aiding, abetting, counselling or procuring,

or being in any way knowingly concerned in, the commission

of the primary offence; or

associate means meet or communicate (by electronic

communication or otherwise).

Australian offence means an offence against a law of the

Commonwealth, a State or a Territory.

child: without limiting who is a child of a person for the purposes

of this Division, someone is the child of a person if he or she is a

child of the person within the meaning of the Family Law Act

1975.

close family member of a person means:

(a) the person's spouse or de facto partner; or

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2009 95

(b) a parent, step-parent or grandparent of the person; or

(d) a brother, sister, stepbrother or stepsister of the person; or

(e) a guardian or carer of the person.

Commonwealth place has the same meaning as in the

Commonwealth Places (Application of Laws) Act 1970.

constitutionally covered offence punishable by imprisonment for

at least 12 months means:

(a) any of the following offences that is punishable on conviction

by imprisonment for at least 12 months or for life:

(i) an offence against a law of the Commonwealth;

(ii) a State offence that has a federal aspect;

(iii) an offence against a law of a Territory; or

(b) a foreign offence that is constituted by conduct that, if

engaged in in Australia, would constitute an Australian

offence punishable on conviction by imprisonment for at

least 12 months or for life.

constitutionally covered offence punishable by imprisonment for

at least 3 years means:

(a) any of the following offences that is punishable on conviction

by imprisonment for at least 3 years or for life:

(i) an offence against a law of the Commonwealth;

(ii) a State offence that has a federal aspect;

(iii) an offence against a law of a Territory; or

(b) a foreign offence that is constituted by conduct that, if

engaged in in Australia, would constitute an Australian

offence punishable on conviction by imprisonment for at

least 3 years or for life.

de facto partner has the meaning given by the Acts Interpretation

Act 1901.

electronic communication means a communication of information:

(a) whether in the form of text; or

(b) whether in the form of data; or

(d) whether in the form of visual images (animated or

otherwise); or

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96 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

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(e) whether in any other form; or

(f) whether in any combination of forms;

by means of guided and/or unguided electromagnetic energy.

federal aspect has the meaning given by section 390.2.

foreign offence means an offence against a law of a foreign

country or part of a foreign country.

for the benefit of: an offence against any law is, or would if

committed be, for the benefit of an organisation if the offence

results or is likely to result in:

(a) the organisation receiving directly or indirectly a significant

benefit of any kind; or

(b) at least one member of the organisation receiving (in his or

her capacity as such a member) directly or indirectly a

significant benefit of any kind.

offence against any law means an Australian offence or a foreign

offence.

offence against any law punishable by imprisonment for at least

3 years means:

(a) an Australian offence punishable on conviction by

imprisonment for at least 3 years or for life; or

(b) a foreign offence punishable on conviction (however

described) by imprisonment for at least 3 years or for life or

by death.

parent: without limiting who is a parent of a person for the

purposes of this Division, someone is the parent of a person if the

person is his or her child because of the definition of child in this

subsection.

State offence means an offence against a law of a State.

stepchild: without limiting who is a stepchild of a person for the

purposes of this Division, someone is the stepchild of a person if

he or she would be the person's stepchild except that the person is

not legally married to the person's de facto partner.

step-parent: without limiting who is a step-parent of a person for

the purposes of this Division, someone who is a de facto partner of

a parent of the person is the step-parent of the person, if he or she

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would be the person's step-parent except that he or she is not

legally married to the person's parent.

(2) For the purposes of the definition of close family member in

subsection (1), if one person is the child of another person because

of the definition of child in that subsection, relationships traced to

or through the person are to be determined on the basis that the

person is the child of the other person.

(3) To avoid doubt:

(a) a reference in this Division to an organisation is a reference

to an organisation however it is organised; and

(b) a reference in this Division to a person includes a reference to

a person outside Australia.

390.2 State offences that have a federal aspect

Object

(1) The object of this section is to identify State offences that have a

federal aspect because:

(a) they potentially fall within Commonwealth legislative power

because of the elements of the State offence; or

(b) they potentially fall within Commonwealth legislative power

because of the circumstances in which the State offence is

committed (whether or not those circumstances are expressed

to be acts or omissions involved in committing the offence).

State offences that have a federal aspect

(2) For the purposes of this Act, a State offence has a federal aspect if,

and only if:

(a)

both:

(i) the State offence is not an ancillary offence; and

(ii) assuming that the provision creating the State offence

had been enacted by the Parliament of the

Commonwealth instead of by the Parliament of the

State--the provision would have been a valid law of the

Commonwealth; or

(b)

both:

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(i) the State offence is an ancillary offence that relates to a

particular primary offence; and

(ii) assuming that the provision creating the primary offence

had been enacted by the Parliament of the

Commonwealth instead of by the Parliament of the

State--the provision would have been a valid law of the

Commonwealth; or

enacted a provision that created an offence penalising the

specific acts or omissions involved in committing the State

offence--that provision would have been a valid law of the

Commonwealth.

Specificity of acts or omissions

(3) For the purposes of paragraph (2)(c), the specificity of the acts or

omissions involved in committing a State offence is to be

determined having regard to the circumstances in which the

offence is committed (whether or not those circumstances are

expressed to be elements of the offence).

State offences covered by paragraph (2)(c)

(4) A State offence is taken to be covered by paragraph (2)(c) if the

conduct constituting the State offence:

(a) affects the interests of:

(i) the Commonwealth; or

(ii) an authority of the Commonwealth; or

(iii) a constitutional corporation; or

(b) was engaged in by a constitutional corporation; or

(d) involved the use of a postal service or other like service; or

(e) involved an electronic communication; or

(f) involved trade or commerce:

(i) between Australia and places outside Australia; or

(ii) among the States; or

(iii) within a Territory, between a State and a Territory or

between 2 Territories; or

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(g)

involved:

(i) banking (other than State banking not extending beyond

the limits of the State concerned); or

(ii) insurance (other than State insurance not extending

beyond the limits of the State concerned); or

(h) relates to a matter outside Australia; or

(i) relates to a matter in respect of which an international

agreement to which Australia is a party imposes obligations

to which effect could be given by the creation of an offence

against the domestic laws of the parties to the agreement; or

(j) relates to a matter that affects the relations between Australia

and another country or countries or is otherwise a subject of

international concern.

(5) Subsection (4) does not limit paragraph (2)(c).

Subdivision B--Offences

390.3 Associating in support of serious organised criminal activity

(1) A person (the first person) commits an offence if:

(a) the first person associates on 2 or more occasions with

another person (the second person); and

(b) the second person engages, or proposes to engage, in conduct

(the second person's conduct) that constitutes, or is part of

conduct constituting, an offence against any law; and

engagement by the second person in the second person's

conduct; and

(d) the offence against any law mentioned in paragraph (b)

involves 2 or more persons; and

(e) the offence against any law mentioned in paragraph (b) is a

constitutionally covered offence punishable by imprisonment

for at least 3 years.

Penalty: Imprisonment for 3 years.

Repeat offence

(2) A person (the first person) commits an offence if:

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(a) the first person has previously been convicted of an offence

against subsection (1); and

(b) the first person associates with another person (the second

person); and

(the second person's conduct) that constitutes, or is part of

conduct constituting, an offence against any law; and

(d) the association facilitates the engagement or proposed

engagement by the second person in the second person's

conduct; and

(e) the offence against any law mentioned in paragraph (c)

involves 2 or more persons; and

(f) the offence against any law mentioned in paragraph (c) is a

constitutionally covered offence punishable by imprisonment

for at least 3 years.

Penalty: Imprisonment for 3 years.

Knowledge fault element for paragraphs (1)(b) and (2)(c)

(3) The fault element for paragraphs (1)(b) and (2)(c) is knowledge (by

the first person).

Absolute liability

(4) Absolute liability applies to paragraphs (1)(e) and (2)(f).

Note:

For absolute liability, see section 6.2.

Prosecution need not prove identity of certain persons

(5) In a prosecution for an offence against subsection (1) or (2), it is

not necessary to prove the identity of any of the persons mentioned

in paragraph (1)(d) or (2)(e).

Defence for certain kinds of associations

(6) This section does not apply to an association if:

(a) the association is with a close family member and relates

only to a matter that could reasonably be regarded (taking

into account the person's cultural background) as a matter of

family or domestic concern; or

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(b) the association is in a place being used for public religious

worship and takes place in the course of practising a religion;

humanitarian nature; or

(d) the association is only for the purpose of providing legal

advice or legal representation in connection with criminal

proceedings or proceedings related to criminal proceedings

(including possible criminal proceedings in the future); or

(e) the association is only for the purpose of providing legal

advice or legal representation in connection with proceedings

relating to the actual or possible declaration (however

described) of an organisation under:

(i)

the

Crimes (Criminal Organisations Control) Act 2009

of New South Wales; or

(ii)

the

Serious and Organised Crime (Control) Act 2008 of

South Australia; or

(iii) a provision of a law of a State or Territory prescribed by

the regulations for the purposes of this subparagraph; or

(f) the association is only for the purpose of providing legal

advice or legal representation in connection with proceedings

for a review of a decision:

(i) relating to a passport or other travel document; or

(ii) relating to a failure to issue such a passport or other

travel document;

(including a passport or other travel document that was, or

would have been, issued by or on behalf of the government

of a foreign country).

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (6). See subsection 13.3(3).

Other limits on this section

(7) A person who is convicted of an offence under subsection (1) in

relation to the person's conduct on 2 or more occasions is not liable

to be punished for an offence under subsection (1) for other

conduct of the person that takes place:

(a) at the same time as that conduct; or

(b) within 7 days before or after any of those occasions.

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(8) This section does not apply to the extent (if any) that it would

infringe any constitutional doctrine of implied freedom of political

communication.

390.4 Supporting a criminal organisation

(1) A person commits an offence if:

(a) the person provides material support or resources to an

organisation or a member of an organisation; and

(b)

either:

(i) the provision of the support or resources aids; or

(ii) there is a risk that the provision of the support or

resources will aid;

the organisation to engage in conduct constituting an offence

against any law; and

(d) the organisation's aims or activities include facilitating the

engagement in conduct, or engaging in conduct, constituting

an offence against any law that is, or would if committed be,

for the benefit of the organisation; and

(e) the offence against any law mentioned in paragraph (d) is an

offence against any law punishable by imprisonment for at

least 3 years; and

(f) the offence against any law mentioned in paragraph (b) is a

constitutionally covered offence punishable by imprisonment

for at least 12 months.

Penalty: Imprisonment for 5 years.

(2) Absolute liability applies to paragraphs (1)(e) and (f).

Note:

For absolute liability, see section 6.2.

(3) To avoid doubt, a person may be convicted of an offence against

subsection (1) because of a risk that the provision of the support or

resources will aid the organisation as described in paragraph (1)(b)

even if the provision of the support or resources does not actually

aid the organisation in that way.

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390.5 Committing an offence for the benefit of, or at the direction of,

a criminal organisation

Offence committed for the benefit of an organisation

(1) A person commits an offence if:

(a) the person commits an offence against any law (the

underlying offence); and

(b) the underlying offence is for the benefit of an organisation;

and

(d) the organisation's aims or activities include facilitating the

engagement in conduct, or engaging in conduct, constituting

an offence against any law that is, or would if committed be,

for the benefit of the organisation; and

(e) the offence against any law mentioned in paragraph (d) is an

offence against any law punishable by imprisonment for at

least 3 years; and

(f) the underlying offence is a constitutionally covered offence

punishable by imprisonment for at least 12 months.

Penalty: Imprisonment for 7 years.

Offence committed at the direction of an organisation

(2) A person commits an offence if:

(a) the person commits an offence against any law (the

underlying offence); and

(b) the person engaged in the conduct constituting the underlying

offence at the direction of an organisation or of a member of

an organisation; and

(d) the organisation's aims or activities include facilitating the

engagement in conduct, or engaging in conduct, constituting

an offence against any law that is, or would if committed be,

for the benefit of the organisation; and

(e) the offence against any law mentioned in paragraph (d) is an

offence against any law punishable by imprisonment for at

least 3 years; and

(f) the underlying offence is a constitutionally covered offence

punishable by imprisonment for at least 12 months.

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Penalty: Imprisonment for 7 years.

Fault elements

(3) There is no fault element for the physical elements described in

paragraphs (1)(a) and (2)(a) other than the fault elements (however

described), if any, for the underlying offence.

Absolute liability

(4) Absolute liability applies to paragraphs (1)(e) and (f) and (2)(e)

and (f).

Note:

For absolute liability, see section 6.2.

Avoiding multiplicity of proceedings and punishments

(5) To avoid doubt, the person may be convicted of an offence against

subsection (1) or (2) even if the person has not:

(a) been convicted of the underlying offence; or

(b) been the subject of an order under section 19B (Discharge of

offenders without proceeding to conviction) of the Crimes

Act 1914, or a corresponding law of a State, Territory or

foreign country, relating to the underlying offence.

(6) If a person has been convicted or acquitted of a foreign offence in

respect of conduct, the person cannot be convicted of an offence

against this section in respect of that conduct.

Note:

If the underlying offence is an Australian offence, section 4C of the

Crimes Act 1914 prevents the person from being punished twice under

Australian law (once under this section and once under the

Commonwealth, State or Territory law creating the underlying

offence) for the act or omission constituting the underlying offence.

Likely benefits

(7) To avoid doubt, the person may be convicted of an offence against

subsection (1) because the underlying offence is likely to result in

the organisation or at least one member receiving benefits as

described in the definition of for the benefit of in subsection

390.1(1), even if the organisation or member does not actually

receive such a benefit.

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390.6 Directing activities of a criminal organisation

(1) A person commits an offence if:

(a) the person directs one or more activities of an organisation;

and

(b)

either:

(i) the activity or activities directed aid; or

(ii) there is a risk that the activity or activities directed will

aid;

the organisation to engage in conduct constituting an offence

against any law; and

(d) the organisation's aims or activities include facilitating the

engagement in conduct, or engaging in conduct, constituting

an offence against any law that is, or would if committed be,

for the benefit of the organisation; and

(e) the offence against any law mentioned in paragraph (d) is an

offence against any law punishable by imprisonment for at

least 3 years; and

(f) the offence against any law mentioned in paragraph (b) is a

constitutionally covered offence punishable by imprisonment

for at least 12 months.

Penalty: Imprisonment for 10 years.

(2) A person commits an offence if:

(a) the person directs one or more activities of an organisation;

and

(b) the activity or activities directed constitute an offence against

any law; and

(d) the organisation's aims or activities include facilitating the

engagement in conduct, or engaging in conduct, constituting

an offence against any law that is, or would if committed be,

for the benefit of the organisation; and

(e) the offence against any law mentioned in paragraph (d) is an

offence against any law punishable by imprisonment for at

least 3 years; and

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(f) the offence against any law mentioned in paragraph (b) is a

constitutionally covered offence punishable by imprisonment

for at least 12 months.

Penalty: Imprisonment for 15 years.

(3) Absolute liability applies to paragraphs (1)(e) and (f) and (2)(e)

and (f).

Note:

For absolute liability, see section 6.2.

(4) To avoid doubt, the person may be convicted of an offence against

subsection (1) because of a risk that the activity or activities

directed will aid the organisation as described in paragraph (1)(b)

even if the activity or activities do not actually aid the organisation

in that way.

390.7 Extended geographical jurisdiction--category C

Section 15.3 (extended geographical jurisdiction--category C)

applies to an offence against this Division.

2 Dictionary in the Criminal Code

Insert:

federal aspect is defined in section 390.2.

3 Application of sections 390.3, 390.4, 390.5 and 390.6 of the

Criminal Code

Sections 390.3, 390.4, 390.5 and 390.6 of the Criminal Code apply if all

the relevant conduct was engaged in after the commencement of those

sections.

Telecommunications (Interception and Access) Act 1979

4 After subsection 5D(8)

Insert:

Offences relating to criminal associations and organisations

(8A) An offence is also a serious offence if it is an offence against

Division 390 of the Criminal Code.

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Schedule 5--Money laundering

Part 1--Criminal Code Act 1995

1 Subsection 400.1(1) of the Criminal Code (definition of

instrument of crime)

After "an offence", insert "against a law of the Commonwealth, a State,

a Territory or a foreign country".

2 Subsection 400.1(1) of the Criminal Code (definition of

proceeds of crime)

After "that is", insert "wholly or partly".

3 Subsection 400.1(1) of the Criminal Code (definition of

proceeds of crime)

After "an offence", insert "against a law of the Commonwealth, a State,

a Territory or a foreign country".

4 Section 400.2 of the Criminal Code

Repeal the section, substitute:

400.2 Definition of deals with money or other property

person

deals with money or other property if the person does

any of the following:

(a) receives, possesses, conceals or disposes of money or other

property;

(b) imports money or other property into Australia;

(d) engages in a banking transaction relating to money or other

property.

400.2A Application of offences relating to possible instruments of

crime

(1) This section affects the application of sections 400.3, 400.4, 400.5,

400.6, 400.7 and 400.8 so far as they relate to a person dealing

with money or other property that:

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(a) is intended by the person to become an instrument of crime;

(b) is at risk of becoming an instrument of crime.

(2) Those sections apply if at least one of the circumstances described

in subsections (3) and (4) exists.

(3) One circumstance is that money or other property is intended to

become, or at risk of becoming, an instrument of crime in relation

to an offence that is:

(a) a Commonwealth indictable offence; or

(b) a foreign indictable offence; or

(d) an Australian Capital Territory indictable offence; or

(e) a Northern Territory indictable offence.

Note:

The prosecution need not prove the existence of any fault element for

the nature of the offence: see section 400.11.

(4) Another circumstance is that the dealing with the money or other

property occurs:

(a) in the course of or for the purposes of importation of goods

into, or exportation of goods from, Australia; or

(b) by means of a communication using a postal, telegraphic,

telephonic or other like service within the meaning of

paragraph 51(v) of the Constitution; or

not extend beyond the limits of the State concerned); or

(d)

outside

Australia.

(5) Absolute liability applies to subsections (3) and (4).

Note:

For absolute liability, see section 6.2.

5 Subsection 400.3(4) of the Criminal Code (note)

Omit "Note", substitute "Note 1".

6 At the end of subsection 400.3(4) of the Criminal Code

Add:

Note 2:

Section 400.2A affects the application of this section so far as it

relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

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7 Subsection 400.4(4) of the Criminal Code (note)

Omit "Note", substitute "Note 1".

8 At the end of subsection 400.4(4) of the Criminal Code

Add:

Note 2:

Section 400.2A affects the application of this section so far as it

relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

9 Subsection 400.5(4) of the Criminal Code (note)

Omit "Note", substitute "Note 1".

10 At the end of subsection 400.5(4) of the Criminal Code

Add:

Note 2:

Section 400.2A affects the application of this section so far as it

relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

11 Subsection 400.6(4) of the Criminal Code (note)

Omit "Note", substitute "Note 1".

12 At the end of subsection 400.6(4) of the Criminal Code

Add:

Note 2:

Section 400.2A affects the application of this section so far as it

relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

13 Subsection 400.7(4) of the Criminal Code (note)

Omit "Note", substitute "Note 1".

14 At the end of subsection 400.7(4) of the Criminal Code

Add:

Note 2:

Section 400.2A affects the application of this section so far as it

relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

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15 At the end of section 400.8 of the Criminal Code

Add:

Note:

Section 400.2A affects the application of this section so far as it

relates to a person dealing with money or other property that:

(a) is intended by the person to become an instrument of crime; or

(b) is at risk of becoming an instrument of crime.

16 Subsection 400.9(1) of the Criminal Code

Repeal the subsection, substitute:

(1) A person commits an offence if:

(a) the person deals with money or other property; and

(b) it is reasonable to suspect that the money or property is

proceeds of crime; and

property is $100,000 or more.

Penalty: Imprisonment for 3 years, or 180 penalty units, or both.

(1A) A person commits an offence if:

(a) the person deals with money or other property; and

(b) it is reasonable to suspect that the money or property is

proceeds of crime; and

property is less than $100,000.

Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

Note:

The heading to section 400.9 is altered by omitting "Possession etc. of" and substituting

"Dealing with".

17 Subsection 400.9(2) of the Criminal Code

After "(1)(b)", insert "or (1A)(b)".

18 Paragraph 400.9(2)(c) of the Criminal Code

After "expenditure", insert "over a reasonable period within which the

conduct occurs".

19 Subsection 400.9(3) of the Criminal Code

Repeal the subsection.

20 Subsection 400.9(4) of the Criminal Code

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Omit "paragraph (1)(b)", substitute "paragraphs (1)(b) and (c) and

(1A)(b) and (c)".

21 Subsection 400.9(6) of the Criminal Code

Repeal the subsection.

22 Subsection 400.10(1) of the Criminal Code

Omit "or 400.7", substitute ", 400.7 or 400.9".

23 Section 400.15 of the Criminal Code

Repeal the section, substitute:

400.15 Geographical jurisdiction

(1) A person does not commit an offence against this Division unless:

(a) the conduct constituting the alleged offence occurs:

(i) wholly or partly in Australia; or

(ii) wholly or partly on board an Australian aircraft or an

Australian ship; or

(b) the conduct constituting the alleged offence occurs wholly

outside Australia (but not on board an Australian aircraft or

an Australian ship) and the money or other property:

(i) is proceeds of crime; or

(ii) is intended to become an instrument of crime; or

(iii) is at risk of becoming an instrument of crime;

in relation to a Commonwealth indictable offence, a State

indictable offence, an Australian Capital Territory indictable

offence or a Northern Territory indictable offence; or

outside Australia and:

(i) at the time of the alleged offence, the person is an

Australian citizen; or

(ii) at the time of the alleged offence, the person is a

resident of Australia; or

(iii) at the time of the alleged offence, the person is a body

corporate incorporated by or under a law of the

Commonwealth or of a State or Territory; or

(d) all of the following conditions are satisfied:

(i) the alleged offence is an ancillary offence;

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(ii) the conduct constituting the alleged offence occurs

wholly outside Australia;

(iii) the conduct constituting the primary offence to which

the ancillary offence relates occurs, or is intended by the

person to occur, wholly or partly in Australia or wholly

or partly on board an Australian aircraft or an Australian

ship.

Note: The

expression

offence is given an extended meaning by subsection

11.2(1), section 11.3 and subsection 11.6(1).

Defence--primary offence

(2) A person is not guilty of an offence against this Division if:

(a) the alleged offence is a primary offence; and

(b) the conduct constituting the alleged offence occurs wholly in

a foreign country, but not on board an Australian aircraft or

an Australian ship; and

(d) the person is neither:

(i) an Australian citizen; nor

(ii) a body corporate incorporated by or under a law of the

Commonwealth or of a State or Territory; and

(e) there is not in force in:

(i) the foreign country where the conduct constituting the

alleged offence occurs; or

(ii) the part of the foreign country where the conduct

constituting the alleged offence occurs;

a law of that foreign country, or a law of that part of that

foreign country, that creates an offence that corresponds to

the offence against this Division.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (2). See subsection 13.3(3).

(3) For the purposes of the application of subsection 13.3(3) to an

offence, subsection (2) of this section is taken to be an exception

provided by the law creating the offence.

Defence--ancillary offence

(4) A person is not guilty of an offence against this Division if:

(a) the alleged offence is an ancillary offence; and

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(b) the conduct constituting the alleged offence occurs wholly in

a foreign country, but not on board an Australian aircraft or

an Australian ship; and

ancillary offence relates occurs, or is intended by the person

to occur, wholly in a foreign country, but not on board an

Australian aircraft or an Australian ship; and

(d) paragraph (1)(b) of this section does not apply (and would

not apply if the conduct described in paragraph (c) of this

subsection occurred as intended); and

(e) the person is neither:

(i) an Australian citizen; nor

(ii) a body corporate incorporated by or under a law of the

Commonwealth or of a State or Territory; and

(f) there is not in force in:

(i) the foreign country where the conduct constituting the

primary offence to which the ancillary offence relates

occurs, or is intended by the person to occur; or

(ii) the part of the foreign country where the conduct

constituting the primary offence to which the ancillary

offence relates or is intended by the person to occur;

a law of that foreign country, or a law of that part of that

foreign country, that creates an offence that corresponds to

the primary offence.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (4). See subsection 13.3(3).

(5) For the purposes of the application of subsection 13.3(3) to an

offence, subsection (4) of this section is taken to be an exception

provided by the law creating the offence.

Extended application of sections 16.1, 16.2 and 16.3

(6) Section 16.1, except paragraph 16.1(1)(a), applies in relation to an

offence against this Division (in addition to the application of that

section apart from this subsection).

Note:

Section 16.1 requires the Attorney-General's consent for prosecution

of an offence if the alleged conduct occurred wholly in a foreign

country in certain circumstances.

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(7) Sections 16.2 and 16.3 apply for the purposes of this Division in

the same way as they apply for the purposes of Part 2.7.

Note:

Section 16.2 treats the sending of things and electronic

communications into and out of Australia as conduct occurring partly

in Australia. Section 16.3 affects the meaning of Australia.

24 Application

The amendments made by this Part apply in relation to conduct engaged

in on or after the commencement of this Part.

Money laundering Schedule 5

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 Part 2

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 115

Part 2--Anti-Money Laundering and

Counter-Terrorism Financing Act 2006

25 Section 5

Insert:

non-financier means a person who is not:

(a) an ADI; or

(b) a bank; or

(d) a credit union; or

(e) a person specified in the AML/CTF Rules.

26 Section 5 (definition of stored value card)

Repeal the definition, substitute:

stored value card does not include a debit card or credit card but

includes a portable device (other than a debit card or credit card)

that:

(a) is capable of:

(i) storing monetary value in a form other than physical

currency; or

(ii) being used to gain access to monetary value stored in

such a form; and

(b) is of a kind prescribed by the regulations.

27 Subsection 6(2) (table items 21, 22, 23 and 24)

Omit "stored on" (wherever occurring), substitute "stored in connection

with".

28 Subsection 6(2) (table items 31 and 32)

Repeal the items, substitute:

Schedule 5 Money laundering

Part 2 Anti-Money Laundering and Counter-Terrorism Financing Act 2006

116 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

in the capacity of a non-financier

carrying on a business of giving

effect to remittance arrangements,

accepting an instruction from a

transferor entity for the transfer of

money or property under a

designated remittance arrangement

the transferor entity

in the capacity of a non-financier

carrying on a business of giving

effect to remittance arrangements,

making money or property

available, or arranging for it to be

made available, to an ultimate

transferee entity as a result of a

transfer under a designated

remittance arrangement

the ultimate transferee entity

29 Application

The amendments of section 6 of the Anti-Money Laundering and

Counter-Terrorism Financing Act 2006 made by this Part apply in

relation to the provision of designated services on or after the

commencement of this Part.

30 Paragraphs 10(1)(a) and (b)

Repeal the paragraphs, substitute:

(a) at least one of the persons described in the following

subparagraphs is a non-financier:

(i) a person who accepts an instruction from the transferor

entity for the transfer of money or property under the

remittance arrangement;

(ii) a person who makes money or property available, or

arranges for it to be made available, to an ultimate

transferee entity as a result of a transfer under the

remittance arrangement; and

31 Transitional provisions for AML/CTF Rules

(1)

This item applies if, immediately before the commencement of this Part,

a provision of the AML/CTF Rules specified a person for the purposes

of subparagraph 10(1)(a)(v) or (b)(v) of the Anti-Money Laundering

Money laundering Schedule 5

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 Part 2

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 117

and Counter-Terrorism Financing Act 2006 (as in force immediately

before that commencement).

(2)

The provision has effect as if it specified the person for the purposes of

paragraph (e) of the definition of non-financier in section 5 of that Act

as amended by this Part.

(3)

This item does not prevent the amendment or repeal of those rules so as

to affect the provision.

32 Paragraph 10(3)(a)

Omit "money or property is accepted so as to enable its transfer under

the arrangement", substitute "an instruction is accepted for the transfer

of money or property under the arrangement".

33 Section 46 (table items 3 and 4)

Omit "person in Australia", substitute "non-financier in Australia".

34 Subsection 59(1)

Omit "as soon as possible", substitute "immediately".

35 Subsection 123(3)

Repeal the subsection, substitute:

(3) If a reporting entity is required under subsection 49(1) to give

information, or produce a document, to a person, the reporting

entity must not disclose to anyone else:

(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

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;

(ii) the first-mentioned information had been given; or

(iii) the document had been produced.

36 Application

Schedule 5 Money laundering

Part 2 Anti-Money Laundering and Counter-Terrorism Financing Act 2006

118 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

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.

Unfitness to plead Schedule 6

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 119

Schedule 6--Unfitness to plead

Crimes Act 1914

1 At the end of Division 6 of Part IB

Add:

20BI Appeals against some Victorian jury findings of unfitness to be

tried

(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

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

(4) Otherwise, the Court of Appeal must dismiss the appeal.

Schedule 6 Unfitness to plead

120 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(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.

3 Transitional provision

(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 the Criminal

Procedure Act 2009 of Victoria, continue to apply (as laws of

the Commonwealth) in relation to the finding despite that

repeal:

(i)

section

570C;

Unfitness to plead Schedule 6

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 121

(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.

Schedule 7 Amendments relating to the Australian Crime Commission

Part 1 Main amendments

122 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Schedule 7--Amendments relating to the

Australian Crime Commission

Part 1--Main amendments

Australian Crime Commission Act 2002

1 Subsection 4(1)

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.

3 Subsection 4(1)

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.

5 Subsection 4(1)

Insert:

Ombudsman means the Commonwealth Ombudsman.

6 Subsection 4A(6) (definition of intelligence operation)

Amendments relating to the Australian Crime Commission Schedule 7

Main amendments Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 123

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.

7 At the end of subsection 7B(2)

Add:

; (i) the Commissioner of Taxation.

8 Subsection 7C(5)

Omit "3 days", substitute "7 days".

9 Paragraph 28(1A)(b)

Omit "summons; or", substitute "summons.".

10 Paragraph 28(1A)(c)

Repeal the paragraph.

11 Subsection 28(8)

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.

12 Paragraph 29(1A)(b)

Omit "notice; or", substitute "notice.".

13 Paragraph 29(1A)(c)

Repeal the paragraph.

14 Subsection 29(5)

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.

Schedule 7 Amendments relating to the Australian Crime Commission

Part 1 Main amendments

124 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

15 At the end of subsection 29B(2)

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.

16 Paragraph 29B(4)(b)

Omit "giving legal advice", substitute "giving or obtaining legal advice

or legal representation".

17 At the end of subsection 29B(4)

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.

18 After section 34

Insert:

34A Contempt of the ACC

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

Amendments relating to the Australian Crime Commission Schedule 7

Main amendments Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 125

(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

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.

34B Federal Court or Supreme Court to deal with contempt

(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:

Schedule 7 Amendments relating to the Australian Crime Commission

Part 1 Main amendments

126 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(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

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.

34C Conduct of contempt proceedings

(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.

34D Person in contempt may be detained

(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.

Amendments relating to the Australian Crime Commission Schedule 7

Main amendments Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 127

(2) If the person is detained under subsection (1):

(a) the ACC 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

agency.

(5) The Court may at any time vary or revoke a condition imposed

under subsection (4).

34E Examiner may withdraw contempt application

(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.

34F Relationship with section 12

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).

19 At the end of subsection 35(1)

Schedule 7 Amendments relating to the Australian Crime Commission

Part 1 Main amendments

128 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Add:

; or (c) threaten any person present at an examination before an

examiner.

20 Section 35A

Before "Where", insert "(1)".

21 At the end of section 35A

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.

22 Section 61A

Repeal the section, substitute:

61A Review of operation of Act

(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) 2009; 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.

Amendments relating to the Australian Crime Commission Schedule 7

Main amendments Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 129

(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.

Schedule 7 Amendments relating to the Australian Crime Commission

Part 2 Consequential amendments

130 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Part 2--Consequential amendments

Administrative Decisions (Judicial Review) Act 1977

23 After paragraph (w) of Schedule 1

Insert:

(wa) decisions under section 34B or 34D of the Australian Crime

Commission Act 2002;

Surveillance Devices Act 2004

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.

Telecommunications (Interception and Access) Act 1979

25 After paragraph 5B(1)(hc)

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

Amendments relating to the Australian Crime Commission Schedule 7

Application provisions Part 3

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 131

Part 3--Application provisions

26 Application of amendments relating to contempt

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.

27 Application of amendment made by item 4

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.

Schedule 8 Penalties for bribery

132 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Schedule 8--Penalties for bribery

Criminal Code Act 1995

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.

3 At the end of section 70.2 of the Criminal Code

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;

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

Penalties for bribery Schedule 8

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 133

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;

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.

6 At the end of section 141.1

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;

Schedule 8 Penalties for bribery

134 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

(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;

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;

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.

Drug importation Schedule 9

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 135

Schedule 9--Drug importation

Criminal Code Act 1995

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.

Schedule 10 Amendments consequential on enactment of joint commission offence

136 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Schedule 10--Amendments consequential on

enactment of joint commission offence

Aboriginal and Torres Strait Islander Act 2005

1 Subparagraph 199(9)(b)(ii)

After "11.2,", insert "11.2A,".

A New Tax System (Family Assistance) (Administration) Act

1999

2 Subparagraph 75(c)(i)

After "11.2", insert "or 11.2A".

3 Paragraph 188(a)

After "11.2", insert "or 11.2A".

Australian Institute of Aboriginal and Torres Strait Islander

Studies Act 1989

4 Subparagraph 47(9)(b)(ii)

After "11.2,", insert "11.2A,".

Corporations (Aboriginal and Torres Strait Islander) Act

2006

5 Paragraph 496-20(1)(a)

After "11.2", insert "or 11.2A".

Corporations Act 2001

6 Paragraph 1042F(2)(b)

After "11.2,", insert "11.2A,".

Amendments consequential on enactment of joint commission offence Schedule 10

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 137

Crimes Act 1914

7 Paragraph 50AA(2)(b)

Omit "or 11.3", substitute ", 11.2A or 11.3".

8 Subsection 50AA(3)

After "11.2", insert "or 11.2A".

Crimes (Biological Weapons) Act 1976

9 Subsection 10(1)

After "11.2", insert "or 11.2A".

Crimes (Internationally Protected Persons) Act 1976

10 Subsection 8(5)

Omit "or 11.2", substitute ", 11.2 or 11.2A".

Crimes (Ships and Fixed Platforms) Act 1992

11 Subsection 5A(3)

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".

15 Paragraph 30(1)(b)

Omit "or 11.2", substitute ", 11.2 or 11.2A".

16 Paragraph 31(b)

Omit "or 11.2", substitute ", 11.2 or 11.2A".

Schedule 10 Amendments consequential on enactment of joint commission offence

138 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

Customs Administration Act 1985

17 Paragraph 16AA(1)(b)

After "11.2,", insert "11.2A,".

Defence Force Discipline Act 1982

18 Subsection 54A(6)

After "11.2", insert "or 11.2A".

Excise Act 1901

19 Paragraph 87AA(b)

After "11.2", insert ", 11.2A".

Great Barrier Reef Marine Park Act 1975

20 After subsection 61B(8)

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.

Historic Shipwrecks Act 1976

21 Subsection 3(1) (paragraph (b) of the definition of offence

against this Act)

After "11.2", insert "or 11.2A".

Patents Act 1990

22 Paragraph 225(5)(b)

Amendments consequential on enactment of joint commission offence Schedule 10

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 139

After "11.2,", insert "11.2A,".

Privacy Act 1988

23 Subsection 99A(9)

After "11.2,", insert "11.2A,".

Proceeds of Crime Act 2002

24 Section 338 (paragraph (g) of the definition of serious

offence)

After "11.2,", insert "11.2A,".

Sea Installations Act 1987

25 Subparagraph 56(2)(a)(ii)

Omit "or 11.2", substitute ", 11.2 or 11.2A".

26 Subsection 62(14)

After "11.2", insert ", 11.2A".

Social Security Act 1991

27 Paragraph 1224AB(b)

After "11.2,", insert "11.2A,".

Social Security (Administration) Act 1999

28 Paragraph 228(a)

After "11.2", insert "or 11.2A".

Superannuation (Resolution of Complaints) Act 1993

29 Subsection 66(8)

After "11.2,", insert "11.2A,".

References to repealed provisions of the Crimes Act 1914 Schedule 11

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 141

Schedule 11--References to repealed

provisions of the Crimes Act 1914

Aircraft Noise Levy Collection Act 1995

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;

Airports Act 1996

2 Subsection 225(6)

Omit "created by section 6, 7 or 7A or subsection 86(1) of the Crimes

Act 1914", substitute "against section 6 of the Crimes Act 1914, or

against section 11.1, 11.4 or 11.5 of the Criminal Code,".

Antarctic Marine Living Resources Conservation Act 1981

3 Subsection 3(3)

Omit "created by section 6, 7 or 7A of the Crimes Act 1914", substitute

"against section 6 of the Crimes Act 1914, or against section 11.1 or

11.4 of the Criminal Code,".

Antarctic Treaty (Environment Protection) Act 1980

4 Subsection 3(3)

Omit "created by section 6, 7, 7A or 86 of the Crimes Act 1914",

substitute "against section 6 of the Crimes Act 1914, or against

section 11.1, 11.4 or 11.5 of the Criminal Code,".

Crimes Act 1914

5 Subsection 15B(1B)

Schedule 11 References to repealed provisions of the Crimes Act 1914

142 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

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

Code that relates to an offence against a provision of this

Part.

Defence Act 1903

7 Paragraph 108(b)

Omit "section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914",

substitute "section 6 of the Crimes Act 1914, or against section 11.1,

11.4 or 11.5 of the Criminal Code,".

Environment Protection (Sea Dumping) Act 1981

8 Subsection 4(2)

Omit "created by section 6, 7 or 7A of the Crimes Act 1914", substitute

"against section 6 of the Crimes Act 1914, or against section 11.1 or

11.4 of the Criminal Code,".

Export Market Development Grants Act 1997

9 Subsection 16(2) (paragraph (d) of the definition of relevant

offence)

Repeal the paragraph, substitute:

(d)

offence:

(i) against section 6 of the Crimes Act 1914; or

References to repealed provisions of the Crimes Act 1914 Schedule 11

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 143

(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;

(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

10 Paragraph 78(1)(d)

Repeal the paragraph, substitute:

(d)

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;

(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

Gene Technology Act 2000

11 Subsection 189(4)

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

that relates to this Act or the regulations.

Health Insurance Act 1973

12 Subsection 23DA(1) (subparagraphs (c)(i) and (ii) of the

definition of relevant offence)

Schedule 11 References to repealed provisions of the Crimes Act 1914

144 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

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;

Offshore Minerals Act 1994

13 Paragraphs 378(7)(a) and (b)

Repeal the paragraphs, substitute:

(a)

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)

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

Ozone Protection and Synthetic Greenhouse Gas

Management Act 1989

14 Paragraph 65(9)(b)

Repeal the paragraph, substitute:

(b)

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.

References to repealed provisions of the Crimes Act 1914 Schedule 11

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 145

Plant Breeder's Rights Act 1994

15 Subsection 76(9)

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

that relates to section 74 or 75 of this Act.

Shipping Registration Act 1981

16 Subsection 3(7)

Omit "created by section 6, 7 or 7A of the Crimes Act 1914", substitute

"against section 6 of the Crimes Act 1914, or against section 11.1 or

11.4 of the Criminal Code,".

South Pacific Nuclear Free Zone Treaty Act 1986

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.

18 Paragraphs 32(2)(a) and (b)

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.

Schedule 11 References to repealed provisions of the Crimes Act 1914

146 Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

No. , 2009

19 Paragraphs 33(5)(a) and (b)

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.

Taxation Administration Act 1953

20 Subsection 8J(6)

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.

21 Subsection 8J(8)

Omit "section 7 of the Crimes Act 1914", substitute "section 11.1 of the

Criminal Code".

Tobacco Advertising Prohibition Act 1992

22 Subsection 32(8)

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

being an offence that relates to this Act.

Trade Practices Act 1974

23 Subsection 79(5)

References to repealed provisions of the Crimes Act 1914 Schedule 11

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009 No. ,

2009 147

Omit "Sections 5, 7 and 7A of the Crimes Act 1914, and section 11.1 of

the Criminal Code,", substitute "Subsections 11.1(1), 11.2(1), 11.2A(1),

and 11.4(1) of the Criminal Code".

Tradex Scheme Act 1999

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 the Crimes Act 1914, or against section 11.1,

11.4 or 11.5 of the Criminal Code,".

Weapons of Mass Destruction (Prevention of Proliferation)

Act 1995

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;

Commonwealth of Australia Bills

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