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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Crimes Legislation Amendment
(Proceeds of Crime and Other Measures)
Bill 2015
No. , 2015
(Justice)
A Bill for an Act to amend legislation relating to the
criminal law, law enforcement and background
checking, and for other purposes
No. , 2015
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Proceeds of crime
3
Proceeds of Crime Act 2002
3
Schedule 2--False accounting
7
Criminal Code Act 1995
7
Schedule 3--Serious drugs
13
Criminal Code Act 1995
13
Schedule 4--Secrecy and access of AUSTRAC information
15
Anti-Money Laundering and Counter-Terrorism Financing Act 2006
15
Schedule 5--Disclosure etc. of AusCheck scheme personal
information
17
AusCheck Act 2007
17
No. , 2015
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
1
A Bill for an Act to amend legislation relating to the
1
criminal law, law enforcement and background
2
checking, and for other purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Crimes Legislation Amendment
6
(Proceeds of Crime and Other Measures) Act 2015.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
No. , 2015
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedules 1 to
4
The day after this Act receives the Royal
Assent.
3. Schedule 5
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Proceeds of crime Schedule 1
No. , 2015
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
3
Schedule 1--Proceeds of crime
1
2
Proceeds of Crime Act 2002
3
1 Subsection 266A(2)
4
Omit all the words after "in that item", substitute:
5
if:
6
(a) the person believes on reasonable grounds that the disclosure
7
will serve that purpose; and
8
(b) a court has not made an order prohibiting the disclosure of
9
the information to the authority for that purpose.
10
2 Section 315A
11
Before "A court", insert "(1)".
12
3 At the end of section 315A
13
Add:
14
(2) However, if:
15
(a) a
*
proceeds of crime authority applies for a
*
forfeiture order
16
relating to particular property; and
17
(b) a person applies for an order (the exclusion order) under
18
section 29 or 29A to exclude a specified
*
interest in that
19
property from a
*
restraining order; and
20
(c) the application for the exclusion order has not been
21
withdrawn;
22
the court may only hear the application for the forfeiture order after
23
the application for the exclusion order has been determined.
24
4 Section 319
25
Repeal the section, substitute:
26
319 Stay of proceedings
27
(1) A court may stay proceedings (the POCA proceedings) under this
28
Act that are not criminal proceedings if the court considers that it is
29
in the interests of justice to do so.
30
Schedule 1 Proceeds of crime
4
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
No. , 2015
(2) The court must not stay the POCA proceedings on any or all of the
1
following grounds:
2
(a) on the ground that criminal proceedings have been, are
3
proposed to be or may be instituted or commenced (whether
4
or not under this Act) against the person subject to the POCA
5
proceedings;
6
(b) on the ground that criminal proceedings have been, are
7
proposed to be or may be instituted or commenced (whether
8
or not under this Act) against another person in respect of
9
matters relating to the subject matter of the POCA
10
proceedings;
11
(c) on the ground that:
12
(i) a person may consider it necessary to give evidence, or
13
to call evidence from another person, in the POCA
14
proceedings; and
15
(ii) the evidence is or may be relevant (to whatever extent)
16
to a matter that is, or may be, at issue in criminal
17
proceedings that have been, are proposed to be or may
18
be instituted or commenced (whether or not under this
19
Act) against the person or any other person;
20
(d) on the ground that POCA proceedings in relation to another
21
person have been, are to be or may be stayed.
22
(3) Paragraph (2)(a) applies even if the circumstances pertaining to the
23
POCA proceedings are or may be the same as, or substantially
24
similar to, the circumstances pertaining to the criminal
25
proceedings.
26
(4) Paragraph (2)(b) applies even if the subject matter of the POCA
27
proceedings is the same as, or substantially similar to, the matter at
28
issue in the criminal proceedings.
29
(5) Paragraph (2)(d) applies even if the staying of the POCA
30
proceedings would avoid a multiplicity of POCA proceedings.
31
(6) In considering whether a stay of the POCA proceedings is in the
32
interests of justice, the court must have regard to the following
33
matters:
34
(a) that the POCA proceedings, and any criminal proceedings of
35
a kind referred to in paragraph (2)(a) or (b), should proceed
36
as expeditiously as possible;
37
Proceeds of crime Schedule 1
No. , 2015
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
5
(b) the cost and inconvenience to the Commonwealth of
1
retaining property to which the POCA proceeding relates and
2
being unable to expeditiously realise its proceeds;
3
(c) the risk of a
*
proceeds of crime authority suffering any
4
prejudice (whether general or specific) in relation to the
5
conduct of the POCA proceedings if the proceedings were
6
stayed;
7
(d) whether any prejudice that a person (other than a proceeds of
8
crime authority) would suffer if the POCA proceedings were
9
not stayed may be addressed by the court by means other
10
than a stay of the proceedings;
11
(e) any orders (other than an order for the stay of the POCA
12
proceedings) that the court could make to address any
13
prejudice that a person (other than a proceeds of crime
14
authority) would suffer if the proceedings were not stayed.
15
Note:
Examples of orders the court could make to address any prejudice that
16
a person (other than a proceeds of crime authority) would suffer if the
17
POCA proceedings were not stayed include an order under
18
section 319A (closed court) or an order prohibiting the disclosure of
19
information.
20
319A Closed court
21
A court may order that proceedings under this Act (other than
22
criminal proceedings) be heard, in whole or in part, in closed court
23
if the court considers that the order is necessary to prevent
24
interference with the administration of criminal justice.
25
5 Application provisions
26
(1)
Subsection 266A(2) of the Proceeds of Crime Act 2002, as amended by
27
this Schedule, applies in relation to the disclosure of information after
28
the commencement of this item, whether the information was obtained
29
before or after that commencement.
30
(2)
Subsection 315A(2) of the Proceeds of Crime Act 2002, as inserted by
31
this Schedule, applies in relation to an application made after the
32
commencement of this item:
33
(a) whether the application relates to an interest in property
34
acquired before or after that commencement; and
35
Schedule 1 Proceeds of crime
6
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
No. , 2015
(b) whether the application relates to conduct that occurred
1
before or after that commencement.
2
(3)
Sections 319 and 319A of the Proceeds of Crime Act 2002, as inserted
3
by this Schedule, apply in relation to proceedings instituted or
4
commenced before or after the commencement of this item.
5
False accounting Schedule 2
No. , 2015
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
7
Schedule 2--False accounting
1
2
Criminal Code Act 1995
3
1 At the end of Chapter 10 of the Criminal Code
4
Add:
5
Part 10.9--Accounting records
6
Division 490--False dealing with accounting documents
7
490.1 Intentional false dealing with accounting documents
8
(1) A person commits an offence if:
9
(a) the person:
10
(i) makes, alters, destroys or conceals an accounting
11
document; or
12
(ii) fails to make or alter an accounting document that the
13
person is under a duty, under a law of the
14
Commonwealth, a State or Territory or at common law,
15
to make or alter; and
16
(b) the person intended the making, alteration, destruction or
17
concealment of the document (or the failure to make or alter
18
the document) to facilitate, conceal or disguise the
19
occurrence of one or more of the following:
20
(i) the person receiving a benefit that is not legitimately
21
due to the person;
22
(ii) the person giving a benefit that is not legitimately due to
23
the recipient, or intended recipient, of the benefit;
24
(iii) another person receiving a benefit that is not
25
legitimately due to the other person;
26
(iv) another person giving a benefit that is not legitimately
27
due to the recipient, or intended recipient, of the benefit
28
(who may be the first-mentioned person);
29
(v) loss to another person that is not legitimately incurred
30
by the other person; and
31
Schedule 2 False accounting
8
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
No. , 2015
(c) one or more of the circumstances referred to in subsection (2)
1
applies.
2
(2) For the purposes of paragraph (1)(c) of this section or
3
paragraph 490.2(1)(c), the circumstances are:
4
(a) the person is:
5
(i) a constitutional corporation, or a corporation that is
6
incorporated in a Territory; or
7
(ii) an officer or employee of a constitutional corporation
8
acting in the performance of his or her duties or the
9
carrying out of his or her functions; or
10
(iii) a person engaged to provide services to a constitutional
11
corporation and acting in the course of providing those
12
services; or
13
(iv) a Commonwealth public official acting in the
14
performance of his or her duties or the carrying out of
15
his or her functions; or
16
(b) the person's act or omission referred to in paragraph (1)(a):
17
(i) occurs in a Territory; or
18
(ii) occurs outside Australia; or
19
(iii) concerns matters or things outside Australia; or
20
(iv) facilitates or conceals the commission of an offence
21
against a law of the Commonwealth; or
22
(c) the accounting document:
23
(i) is outside Australia; or
24
(ii) is in a Territory; or
25
(iii) is kept under or for the purposes of a law of the
26
Commonwealth; or
27
(iv) is kept to record the receipt or use of Australian
28
currency.
29
(3) Absolute liability applies to paragraph (1)(c).
30
Note:
For absolute liability, see section 6.2.
31
Penalty for individual
32
(4) An offence against this section committed by an individual is
33
punishable on conviction by imprisonment for not more than 10
34
years, a fine not more than 10,000 penalty units, or both.
35
False accounting Schedule 2
No. , 2015
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
9
Penalty for body corporate
1
(5) An offence against this section committed by a body corporate is
2
punishable on conviction by a fine not more than the greatest of the
3
following:
4
(a) 100,000 penalty units;
5
(b) if the court can determine the value of the benefit that the
6
body corporate, and any body corporate related to the body
7
corporate, have obtained directly or indirectly and that is
8
reasonably attributable to the conduct constituting the
9
offence--3 times the value of that benefit;
10
(c) if the court cannot determine the value of that benefit--10%
11
of the annual turnover of the body corporate during the
12
period (the turnover period) of 12 months ending at the end
13
of the month in which the conduct constituting the offence
14
occurred.
15
490.2 Reckless false dealing with accounting documents
16
(1) A person commits an offence if:
17
(a) the person:
18
(i) makes, alters, destroys or conceals an accounting
19
document; or
20
(ii) fails to make or alter an accounting document that the
21
person is under a duty, under a law of the
22
Commonwealth, a State or Territory or at common law,
23
to make or alter; and
24
(b) the person is reckless as to whether the making, alteration,
25
destruction or concealment of the document (or the failure to
26
make or alter the document) facilitates, conceals or disguises
27
the occurrence of one or more of the following:
28
(i) the person receiving a benefit that is not legitimately
29
due to the person;
30
(ii) the person giving a benefit that is not legitimately due to
31
the recipient, or intended recipient, of the benefit;
32
(iii) another person receiving a benefit that is not
33
legitimately due to the other person;
34
Schedule 2 False accounting
10
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
No. , 2015
(iv) another person giving a benefit that is not legitimately
1
due to the recipient, or intended recipient, of the benefit
2
(who may be the first-mentioned person);
3
(v) loss to another person that is not legitimately incurred
4
by the other person; and
5
(c) one or more of the circumstances referred to in
6
subsection 490.1(2) applies.
7
(2) Absolute liability applies to paragraph (1)(c).
8
Note:
For absolute liability, see section 6.2.
9
Penalty for individual
10
(3) An offence against this section committed by an individual is
11
punishable on conviction by imprisonment for not more than 5
12
years, a fine not more than 5,000 penalty units, or both.
13
Penalty for body corporate
14
(4) An offence against this section committed by a body corporate is
15
punishable on conviction by a fine not more than the greatest of the
16
following:
17
(a) 50,000 penalty units;
18
(b) if the court can determine the value of the benefit that the
19
body corporate, and any body corporate related to the body
20
corporate, have obtained directly or indirectly and that is
21
reasonably attributable to the conduct constituting the
22
offence--1.5 times the value of that benefit;
23
(c) if the court cannot determine the value of that benefit--5% of
24
the annual turnover of the body corporate during the period
25
(the turnover period) of 12 months ending at the end of the
26
month in which the conduct constituting the offence
27
occurred.
28
490.3 Meaning of annual turnover
29
(1) For the purposes of this Division, the annual turnover of a body
30
corporate, during the turnover period, is the sum of the values of all
31
the supplies that the body corporate, and any body corporate
32
False accounting Schedule 2
No. , 2015
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
11
related to the body corporate, have made, or are likely to make,
1
during that period, other than the following supplies:
2
(a) supplies made from any of those bodies corporate to any
3
other of those bodies corporate;
4
(b) supplies that are input taxed;
5
(c) supplies that are not for consideration (and are not taxable
6
supplies under section 72-5 of the A New Tax System (Goods
7
and Services Tax) Act 1999);
8
(d) supplies that are not made in connection with an enterprise
9
that the body corporate carries on.
10
(2) Expressions used in this section that are also used in the A New Tax
11
System (Goods and Services Tax) Act 1999 have the same meaning
12
in this section as they have in that Act.
13
490.4 Related bodies corporate
14
The question whether 2 bodies corporate are related to each other
15
is to be determined for the purposes of this Division in the same
16
way as for the purposes of the Corporations Act 2001.
17
490.5 Proof of certain matters unnecessary
18
In a prosecution for an offence against this Division, it is not
19
necessary to prove:
20
(a) the occurrence of any of the following:
21
(i) the defendant receiving or giving a benefit;
22
(ii) another person receiving or giving a benefit;
23
(iii) loss to another person; or
24
(b) that the defendant intended that a particular person receive or
25
give a benefit, or incur a loss.
26
490.6 Consent to commencement of proceedings
27
(1) Proceedings for an offence against this Division must not be
28
commenced without the Attorney-General's written consent if:
29
(a) the conduct constituting the alleged offence occurs wholly in
30
a foreign country; and
31
Schedule 2 False accounting
12
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
No. , 2015
(b) at the time of the alleged offence, the person alleged to have
1
committed the offence is none of the following:
2
(i) an Australian citizen;
3
(ii) a resident of Australia;
4
(iii) a body corporate incorporated by or under a law of the
5
Commonwealth or of a State or Territory.
6
(2) However, a person may be arrested for, charged with, or remanded
7
in custody or released on bail in connection with an offence against
8
this Division before the necessary consent has been given.
9
490.7 Saving of other laws
10
This Division is not intended to exclude or limit the operation of
11
any other law of the Commonwealth or any law of a State or
12
Territory.
13
2 Dictionary of the Criminal Code
14
Insert:
15
accounting document means:
16
(a) any account; or
17
(b) any record or document made or required for any accounting
18
purpose; or
19
(c) any register under the Corporations Act 2001, or any
20
financial report or financial records within the meaning of
21
that Act.
22
Serious drugs Schedule 3
No. , 2015
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
13
Schedule 3--Serious drugs
1
2
Criminal Code Act 1995
3
1 Paragraph 301.9(1)(b) of the Criminal Code
4
Repeal the paragraph.
5
2 Subparagraph 301.9(1)(c)(iii) of the Criminal Code
6
Repeal the subparagraph, substitute:
7
(iii) by the replacement of one or more of the groups or
8
atoms specified in subsection (2) with one or more of
9
the other groups or atoms specified in that subsection;
10
3 Subsection 301.9(2) of the Criminal Code
11
Repeal the subsection, substitute:
12
(2) The following groups and atoms are specified:
13
(a) alkoxy, cyclic diether, acyl, acyloxy, mono-amino or
14
dialkylamino groups with up to 6 carbon atoms in any alkyl
15
residue;
16
(b) alkyl, alkenyl or alkynyl groups with up to 6 carbon atoms in
17
the group, where the group is attached to oxygen (for
18
example, an ester or an ether group), nitrogen, sulphur or
19
carbon;
20
(c) halogen, hydroxy, nitro or amino groups;
21
(d) hydrogen atoms.
22
(3) However:
23
(a) a drug analogue of a listed controlled drug does not include a
24
substance that is itself a listed controlled drug; and
25
(b) a drug analogue of a listed border controlled drug does not
26
include a substance that is itself a listed border controlled
27
drug.
28
(4) In this section:
29
addition has its ordinary meaning.
30
replacement has its ordinary meaning.
31
Schedule 3 Serious drugs
14
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
No. , 2015
4 Subsection 305.1(1) of the Criminal Code
1
Repeal the subsection, substitute:
2
(1) For the purposes of this Part, manufacture means:
3
(a) any process by which a substance is produced (other than the
4
cultivation of a plant), and includes the following:
5
(i) the process of extracting or refining a substance;
6
(ii) the process of transforming a substance into a different
7
substance; or
8
(b) any process by which a substance is converted from one form
9
to another, including the process of extracting or refining a
10
substance.
11
Secrecy and access of AUSTRAC information Schedule 4
No. , 2015
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
15
Schedule 4--Secrecy and access of AUSTRAC
1
information
2
3
Anti-Money Laundering and Counter-Terrorism Financing
4
Act 2006
5
1 Section 5 (after paragraph (u) of the definition of
6
designated agency)
7
Insert:
8
(uaa) the Independent Commissioner Against Corruption of South
9
Australia; or
10
2 Section 5 (definition of foreign law enforcement agency)
11
Repeal the definition, substitute:
12
foreign law enforcement agency means:
13
(a) a government body that has responsibility for law
14
enforcement in a foreign country or a part of a foreign
15
country; or
16
(b) the European Police Office (Europol); or
17
(c) the International Criminal Police Organization (Interpol); or
18
(d) an international body prescribed by the regulations for the
19
purposes of this paragraph.
20
3 At the end of subsection 22(1)
21
Add:
22
; and (j) in the case of the Independent Commissioner Against
23
Corruption of South Australia:
24
(i) a person appointed as the Independent Commissioner
25
Against Corruption under the Independent
26
Commissioner Against Corruption Act 2012 (SA) or
27
acting in that office; and
28
(ii) a person appointed as the Deputy Commissioner under
29
that Act or acting in that office; and
30
(iii) a person appointed as an examiner or investigator under
31
that Act.
32
Schedule 4 Secrecy and access of AUSTRAC information
16
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
No. , 2015
4 After paragraph 122(3)(b)
1
Insert:
2
(c) the disclosure is for the purposes of, or in connection with,
3
the performance of the duties of the entrusted investigating
4
official (other than the Commissioner of Taxation or a
5
taxation officer);
6
5 Application provision
7
Paragraph 122(3)(c) of the Anti-Money Laundering and
8
Counter-Terrorism Financing Act 2006, as inserted by this Schedule,
9
applies in relation to the disclosure of information after the
10
commencement of this item, whether the information was obtained
11
before or after that commencement.
12
Disclosure etc. of AusCheck scheme personal information Schedule 5
No. , 2015
Crimes Legislation Amendment (Proceeds of Crime and Other
Measures) Bill 2015
17
Schedule 5--Disclosure etc. of AusCheck
1
scheme personal information
2
3
AusCheck Act 2007
4
1 Subsection 4(1) (definition of Commonwealth authority)
5
Repeal the definition, substitute:
6
Commonwealth authority means a body (whether incorporated or
7
not) established for a public purpose by or under a law of the
8
Commonwealth.
9
2 Subsection 4(1)
10
Insert:
11
State or Territory authority means a body (whether incorporated
12
or not) established for a public purpose by or under a law of a State
13
or Territory.
14
3 Subparagraph 14(2)(b)(iii)
15
Repeal the subparagraph, substitute:
16
(iii) the performance of functions relating to law
17
enforcement or national security by the Commonwealth
18
or a Commonwealth authority;
19
(iiia) the performance of functions relating to law
20
enforcement or national security by a State or Territory
21
or a State or Territory authority;
22
4 Subparagraph 14(2)(b)(iv)
23
After "subparagraph (iii)", insert "or (iiia)".
24
5 Application provision
25
The amendments of the AusCheck Act 2007 made by this Schedule
26
apply in relation to the use or disclosure of information after the
27
commencement of this item, whether the information was collected
28
before or after that commencement.
29