Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010
1 Short title...........................................................................................1 2 Commencement.................................................................................2 3 Schedule(s)........................................................................................5 4 Regulations........................................................................................5
Schedule 1—Proceeds of crime 6 Part 1—Exclusion, recovery and compensation 6 Proceeds of Crime Act 2002 6 Part 2—Pecuniary penalty orders 20 Proceeds of Crime Act 2002 20 Part 3—Examinations 26 Proceeds of Crime Act 2002 26 Part 4—Notices 33 Proceeds of Crime Act 2002 33 Part 5—Ancillary orders 39 Proceeds of Crime Act 2002 39 Part 6—Evidence 42 Proceeds of Crime Act 2002 42 Part 7—Definitions 47 Proceeds of Crime Act 2002 47 Part 8—Technical amendments relating to orders 50 Proceeds of Crime Act 2002 50 Part 9—Confiscated Assets Account 53 Division 1—Simplification of accounting 53 Proceeds of Crime Act 2002 53 Division 2—Crediting amounts paid to settle proceedings 53 Proceeds of Crime Act 2002 53 Division 3—Payments by the Commonwealth under court orders 54 Proceeds of Crime Act 2002 54 Part 10—Other amendments 56
Administrative Decisions (Judicial Review) Act 1977 56 Proceeds of Crime Act 2002 56 Schedule 2—Search warrants 58 Part 1—Seized things 58 Crimes Act 1914 58 Part 2—Use of equipment under warrant 68 Crimes Act 1914 68 Schedule 3—Witness protection 74 Part 1—Amendments 74 Witness Protection Act 1994 74 Part 2—Application and saving provisions 96 Schedule 4—Criminal organisation and association offences 97 Criminal Code Act 1995 97 Telecommunications (Interception and Access) Act 1979 109 Schedule 5—Money laundering 110 Part 1—Criminal Code Act 1995 110 Part 2—Anti-Money Laundering and Counter-Terrorism Financing Act 2006 118 Schedule 6—Unfitness to plead 122 Crimes Act 1914 122
Schedule 7—Amendments relating to the Australian Crime Commission 125 Part 1—Main amendments 125 Australian Crime Commission Act 2002 125 Part 2—Consequential amendments 133 Administrative Decisions (Judicial Review) Act 1977 133 Surveillance Devices Act 2004 133 Telecommunications (Interception and Access) Act 1979 133 Part 3—Application provisions 134
Schedule 9—Drug importation 138 Criminal Code Act 1995 138
Schedule 10—Amendments consequential on enactment of joint commission offence 139 Aboriginal and Torres Strait Islander Act 2005 139 A New Tax System (Family Assistance) (Administration) Act 1999 139 Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 139 Corporations (Aboriginal and Torres Strait Islander) Act 2006 139 Corporations Act 2001 139 Crimes Act 1914 140 Crimes (Biological Weapons) Act 1976 140 Crimes (Internationally Protected Persons) Act 1976 140 Crimes (Ships and Fixed Platforms) Act 1992 140 Customs Administration Act 1985 141 Defence Force Discipline Act 1982 141 Excise Act 1901 141 Great Barrier Reef Marine Park Act 1975 141 Historic Shipwrecks Act 1976 141 Patents Act 1990 141 Privacy Act 1988 142 Proceeds of Crime Act 2002 142 Sea Installations Act 1987 142 Social Security Act 1991 142 Social Security (Administration) Act 1999 142 Superannuation (Resolution of Complaints) Act 1993 142 Trade Marks Act 1995 143 War Crimes Act 1945 143
Aircraft Noise Levy Collection Act 1995 144 Airports Act 1996 144 Antarctic Marine Living Resources Conservation Act 1981 144 Antarctic Treaty (Environment Protection) Act 1980 144 Crimes Act 1914 144 Defence Act 1903 145 Environment Protection (Sea Dumping) Act 1981 145 Export Market Development Grants Act 1997 145 Gene Technology Act 2000 146 Health Insurance Act 1973 146 Offshore Minerals Act 1994 147 Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 147 Plant Breeder’s Rights Act 1994 148 Shipping Registration Act 1981 148 South Pacific Nuclear Free Zone Treaty Act 1986 148 Taxation Administration Act 1953 149 Tobacco Advertising Prohibition Act 1992 149 Trade Practices Act 1974 149 Tradex Scheme Act 1999 150 Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 150
An Act to amend various Acts relating to the enforcement of the criminal law, and for other purposes
[Assented to 19 February 2010]
This Act may be cited as the Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010.
(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.
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. | 19 February 2010 |
2. Schedule 1, items 1 to 213
The later of:
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.
20 February 2010
3. Schedule 1, item 214
The later of: 19 May 2010
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur.
Commencement information 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 | 20 February 2010 |
(b) immediately after the commencement of Part 1 of Schedule 2 to the Crimes | ||
Legislation Amendment (Serious and Organised Crime) Act 2010. | ||
However, the provision(s) do not commence at all if: | ||
(c) item 70 of Schedule 2 to the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 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 | 19 May 2010 |
(b) immediately after the commencement of Part 5 of Schedule 2 to the Crimes | ||
Legislation Amendment (Serious and Organised Crime) Act 2010. | ||
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 | 20 February 2010 |
(b) immediately after the commencement of Part 1 of Schedule 2 to the Crimes | ||
Legislation Amendment (Serious and Organised Crime) Act 2010. | ||
However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. |
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
items 1 and 2 (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, Immediately after the commencement of
item 3 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. | 20 February 2010 |
13. Schedules 10 and 11 | The later of: (a) the day after this Act receives the Royal Assent; and | 20 February 2010 |
(b) immediately after the commencement of Part 1 of Schedule 4 to the Crimes | ||
Legislation Amendment (Serious and Organised Crime) Act 2010. | ||
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.
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.
Schedule 1—Proceeds of crime Part 1—Exclusion, recovery and compensation
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”.
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 an *interest has been made.
(1A) An application under subsection (1):
Note: The heading to section 31 is altered by omitting “notice of the order” and substituting “restraining order has been made”.
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:
23 Paragraph 73(2)(a)
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
27 Subsection 75(3)
Omit “examine the applicant under Part 3-1”, substitute “conduct *examinations in relation to the application”.
28 Section 76
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:
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:
31 Paragraph 77(2)(b)
After “Commonwealth”, insert “, once the property has vested absolutely in it,”.
32 Section 78
Repeal the section, substitute:
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
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:
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
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)
Omit “day of the conviction”, substitute “*conviction day”.
40 After section 92
Insert:
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:
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:
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:
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:
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:
(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
Repeal the section, substitute:
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.
Part 2—Pecuniary penalty orders
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:
(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:
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.
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:
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)
Repeal the subsection, substitute:
(3) A *pecuniary penalty order made in relation to a person’s conviction of an offence is discharged if:
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:
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:
(iii) a *pecuniary penalty order under subparagraph 116(1)(b)(i); and
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.
Part 3—Examinations
99 Paragraph 180(1)(b)
Repeal the paragraph, substitute:
(b) a person who is a *suspect in relation to the restraining order; or
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:
(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:
paragraph (a); about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when:
(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:
paragraph (a); about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when:
(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:
paragraph (a); about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when:
(1) If a *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:
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.
(1) If a *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:
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:
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.
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)
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:
A person commits an offence if:
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:
119 Section 338 (definition of examination order)
After “180”, insert “, 180A, 180B, 180C, 180D, 180E”.
Part 4—Notices
120 After paragraph 202(5)(c)
Insert: (ca) a document relevant to identifying, locating or quantifying property suspected of being:
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:
127 At the end of section 211
Add:
(3) It is a defence to an offence against subsection (1) if:
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”.
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
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:
137 At the end of section 214
Add:
(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:
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:
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:
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:
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:
(e) a closed account. To avoid doubt, it is immaterial whether:
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.
Part 5—Ancillary orders
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:
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:
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.
158A Subparagraph 266A(1)(a)(i)
Omit “39(1)(d)”, substitute “39(1)(ca), (d) or (da)”.
Part 6—Evidence
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:
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:
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:
Rules that apply if statement admitted
318B Objection to admission of statements made at examination
Adducing party to give notice
Other party may object to admission of specified statements
Effect of giving objection notice
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:
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.
Part 7—Definitions
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)
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:
180 Section 338 (paragraph (a) of the definition of tainted property)
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)”.
Part 8—Technical amendments relating to orders
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)”.
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.
Division 1—Simplification of accounting
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.
200A Subsection 298(1)
Omit “in a particular financial year”.
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.
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
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
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:
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, subparagraph 102(d)(ii) or section 179L;
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.
Part 10—Other amendments
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.
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:
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.
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:
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.
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:
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
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:
(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):
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:
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:
3ZQV Operating seized electronic equipment
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
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
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:
3ZQZ Magistrate may permit a thing seized under Division 3 to be retained
Subdivision D—Returning things seized under Division 3A
3ZQZA Owner may request return of thing
90th day; the Commissioner must, before the end of the 95th day:
(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.
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:
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:
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) if he or she suspects on reasonable grounds that the data constitutes evidential material.
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)
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
3LA Person with knowledge of a computer or a computer system to assist access etc.
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.
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
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
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:
3 Section 3
Insert:
former NWPP identity, in relation to a participant at a particular time, means an identity that:
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.
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:
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:
11 Section 3
Insert:
Territory participant means a participant:
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:
14 At the end of section 8
Add:
(6) In this section: participant does not include a former participant.
15 At the end of section 9
Add:
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.”.
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:
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)
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”.
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):
(iii) the circumstances that gave rise to the need for protection and assistance for the person cease to exist; or
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.
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:
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
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:
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:
Penalty: Imprisonment for 2 years.
Disclosure of information about individual undergoing assessment as Commonwealth or Territory participant
(2) A person commits an offence if:
Penalty: Imprisonment for 2 years.
Disclosure of information that may compromise security of Commonwealth or Territory participant
(3) A person commits an offence if:
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:
Penalty: Imprisonment for 10 years.
(5) Subsections (1), (2), (3) and (4) do not apply to a disclosure by a person if:
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:
Penalty: Imprisonment for 2 years.
Disclosure of information about individual undergoing assessment as State participant
(2) A person commits an offence if:
Penalty: Imprisonment for 2 years.
Disclosure of information that may compromise security of State participant
(3) A person commits an offence if:
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:
Penalty: Imprisonment for 10 years.
(5) Subsections (1), (2), (3) and (4) do not apply to a disclosure by a person if:
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)(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:
(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;
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:
Penalty: Imprisonment for 5 years.
(3) Subsections (1) and (2) do not apply to a disclosure by a person if:
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.
22C Disclosures to courts, etc.
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:
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:
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:
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
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:
67 Section 28
Repeal the section, substitute:
28 Identity of participant not to be disclosed in court proceedings etc.
28A Offence of contravening an order under section 28
68 Subsection 30(1)
Omit “section 27”, substitute “sections 27 and 27A”.
Part 2—Application and saving provisions
69 Saving provision—declarations of complementary witness protection laws
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
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.
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:
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:
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:
constitutionally covered offence punishable by imprisonment for at least 3 years means:
de facto partner has the meaning given by the Acts Interpretation Act 1901.
electronic communication means a communication of information:
(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:
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:
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 would be the person’s step-parent except that he or she is not legally married to the person’s parent.
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:
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:
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)
Subdivision B—Offences
390.3 Associating in support of serious organised criminal activity
(1) A person (the first person) commits an offence if:
Penalty: Imprisonment for 3 years.
Repeat offence
(2) A person (the first person) commits an offence if:
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).
Intention fault element for paragraphs (1)(c) and (2)(d)
(3A) The fault element for paragraphs (1)(c) and (2)(d) is intention (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
Defence for certain kinds of associations
Note: A defendant bears an evidential burden in relation to the matters in subsection (6). See subsection 13.3(3).
(6A) Paragraphs (6)(a), (b), (c), (d) and (e) do not limit one another.
Other limits on this section
390.4 Supporting a criminal organisation
(1) A person commits an offence if:
the organisation to engage in conduct constituting an offence against any law; and
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.
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:
Penalty: Imprisonment for 7 years.
Offence committed at the direction of an organisation
(2) A person commits an offence if:
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
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.
390.6 Directing activities of a criminal organisation
(1) A person commits an offence if:
aid; the organisation to engage in conduct constituting an offence against any law; and
Penalty: Imprisonment for 10 years.
(2) A person commits an offence if:
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.
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
A person deals with money or other property if the person does any of the following:
400.2A Application of offences relating to possible instruments of crime
Note: The prosecution need not prove the existence of any fault element for the nature of the offence: see section 400.11.
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:
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:
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:
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:
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:
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:
16 Subsection 400.9(1) of the Criminal Code
Repeal the subsection, substitute:
(1) A person commits an offence if:
Penalty: Imprisonment for 3 years, or 180 penalty units, or both.
(1A) A person commits an offence if:
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
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:
(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
(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:
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 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.
(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.
Part 2—Anti-Money Laundering and Counter-Terrorism Financing Act 2006
25 Section 5
Insert:
non-financier means a person who is not:
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:
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:
31 | in the capacity of a non-financier | the transferor entity |
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 | ||
32 | in the capacity of a non-financier | the ultimate transferee entity |
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 |
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:
31 Transitional provisions for AML/CTF Rules
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:
(iii) the document had been produced.
36 Application
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.
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:
Right to appeal
(2) The accused may appeal to the Court of Appeal of Victoria against the finding:
Decision on appeal
Consequences if appeal allowed
(6) If the Court of Appeal allows the appeal:
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:
(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
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)
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.
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:
(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
34B Federal Court or Supreme Court to deal with contempt
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:
34C Conduct of contempt proceedings
34D Person in contempt may be detained
34E Examiner may withdraw contempt application
(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)
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:
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
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
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
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
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:
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
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:
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,”.
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”.
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:
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)
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,”.
Trade Marks Act 1995
30 Subsection 150(2)
After “11.2”, insert “or 11.2A”.
War Crimes Act 1945
31 Subsection 9(2)
After “11.2”, insert “, 11.2A”.
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:
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)
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:
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) an offence:
(iii) against section 11.1, 11.4 or 11.5 of the Criminal Code; or
(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) an offence:
(iii) against section 11.1, 11.4 or 11.5 of the Criminal Code; or
(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:
(c) against section 11.1, 11.4 or 11.5 of the Criminal Code; 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)
Repeal the subparagraphs, substitute:
Offshore Minerals Act 1994
13 Paragraphs 378(7)(a) and (b)
Repeal the paragraphs, substitute:
(a) an offence:
(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) an offence:
(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) an offence:
(iii) against section 11.1, 11.4 or 11.5 of the Criminal Code; being an offence that relates to the regulations.
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:
(c) against section 11.1, 11.4 or 11.5 of the Criminal Code; 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:
18 Paragraphs 32(2)(a) and (b)
Repeal the paragraphs, substitute:
19 Paragraphs 33(5)(a) and (b)
Repeal the paragraphs, substitute:
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:
(c) against section 11.1, 11.4 or 11.5 of the Criminal Code; being an offence that relates to this Act.
Trade Practices Act 1974
23 Subsection 79(5)
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:
[Minister’s second reading speech made in— House of Representatives on 16 September 2009 Senate on 19 November 2009]
(183/09)