Crimes Legislation Amendment (Serious
and Organised Crime) Act (No. 2) 2010
Act No. 4 of 2010 as amended
This compilation was prepared on 29 March 2011
taking into account amendments up to Act No. 5 of 2011
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra
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Contents 1 Short title [see Note 1].......................................................................1
2 Commencement .................................................................................1
3 Schedule(s) ........................................................................................4
4 Regulations........................................................................................4
Schedule 1—Proceeds of crime 5
Part 1—Exclusion, recovery and compensation 5
Proceeds of Crime Act 2002 5
Part 2—Pecuniary penalty orders 19
Proceeds of Crime Act 2002 19
Part 3—Examinations 25
Proceeds of Crime Act 2002 25
Part 4—Notices 32
Proceeds of Crime Act 2002 32
Part 5—Ancillary orders 38
Proceeds of Crime Act 2002 38
Part 6—Evidence 41
Proceeds of Crime Act 2002 41
Part 7—Definitions 46
Proceeds of Crime Act 2002 46
Part 8—Technical amendments relating to orders 49
Proceeds of Crime Act 2002 49
Part 9—Confiscated Assets Account 52
Division 1—Simplification of accounting 52
Proceeds of Crime Act 2002 52
Division 2—Crediting amounts paid to settle proceedings 52
Proceeds of Crime Act 2002 52
Division 3—Payments by the Commonwealth under court orders 53
Proceeds of Crime Act 2002 53
Part 10—Other amendments 55
Administrative Decisions (Judicial Review) Act 1977 55
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Proceeds of Crime Act 2002 55
Schedule 2—Search warrants 57
Part 1—Seized things 57
Crimes Act 1914 57
Part 2—Use of equipment under warrant 67
Crimes Act 1914 67
Schedule 3—Witness protection 73
Part 1—Amendments 73
Witness Protection Act 1994 73
Part 2—Application and saving provisions 95
Schedule 4—Criminal organisation and association offences 96
Criminal Code Act 1995 96
Telecommunications (Interception and Access) Act 1979 108
Schedule 5—Money laundering 109
Part 1—Criminal Code Act 1995 109
Part 2—Anti-Money Laundering and Counter-Terrorism
Financing Act 2006 117
Schedule 6—Unfitness to plead 121
Crimes Act 1914 121
Schedule 7—Amendments relating to the Australian Crime
Commission 124
Part 1—Main amendments 124
Australian Crime Commission Act 2002 124
Part 2—Consequential amendments 132
Administrative Decisions (Judicial Review) Act 1977 132
Surveillance Devices Act 2004 132
Telecommunications (Interception and Access) Act 1979 132
Part 3—Application provisions 133
Schedule 8—Penalties for bribery 134
Criminal Code Act 1995 134
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Schedule 9—Drug importation 137
Criminal Code Act 1995 137
Schedule 10—Amendments consequential on enactment of
joint commission offence 138
Aboriginal and Torres Strait Islander Act 2005 138
A New Tax System (Family Assistance) (Administration) Act 1999 138
Australian Institute of Aboriginal and Torres Strait Islander Studies
Act 1989 138
Corporations (Aboriginal and Torres Strait Islander) Act 2006 138
Corporations Act 2001 138
Crimes Act 1914 139
Crimes (Biological Weapons) Act 1976 139
Crimes (Internationally Protected Persons) Act 1976 139
Crimes (Ships and Fixed Platforms) Act 1992 139
Customs Administration Act 1985 140
Defence Force Discipline Act 1982 140
Excise Act 1901 140
Great Barrier Reef Marine Park Act 1975 140
Historic Shipwrecks Act 1976 140
Patents Act 1990 141
Privacy Act 1988 141
Proceeds of Crime Act 2002 141
Sea Installations Act 1987 141
Social Security Act 1991 141
Social Security (Administration) Act 1999 141
Superannuation (Resolution of Complaints) Act 1993 142
Trade Marks Act 1995 142
War Crimes Act 1945 142
Schedule 11—References to repealed provisions of the Crimes
Act 1914 143
Aircraft Noise Levy Collection Act 1995 143
Airports Act 1996 143
Antarctic Marine Living Resources Conservation Act 1981 143
Antarctic Treaty (Environment Protection) Act 1980 143
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Crimes Act 1914 144
Defence Act 1903 144
Environment Protection (Sea Dumping) Act 1981 144
Export Market Development Grants Act 1997 145
Gene Technology Act 2000 145
Health Insurance Act 1973 146
Offshore Minerals Act 1994 146
Ozone Protection and Synthetic Greenhouse Gas Management Act
1989 146
Plant Breeder’s Rights Act 1994 147
Shipping Registration Act 1981 147
South Pacific Nuclear Free Zone Treaty Act 1986 147
Taxation Administration Act 1953 148
Tobacco Advertising Prohibition Act 1992 148
Trade Practices Act 1974 149
Tradex Scheme Act 1999 149
Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 149
Notes 151
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An Act to amend various Acts relating to the
enforcement of the criminal law, and for other
purposes
1 Short title [see Note 1]
This Act may be cited as the Crimes Legislation Amendment
(Serious and Organised Crime) Act (No. 2) 2010.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with
column 2 of the table. Any other statement in column 2 has effect
according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 to 4
and anything in
this Act not
The day this Act receives the Royal Assent. 19 February
2010
elsewhere covered
by this table
2. Schedule 1,
items 1 to 213
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.
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Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
3. Schedule 1,
item 214
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.
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.
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Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
6. Schedule 1,
items 217 to 221
The later of: 20 February
2010(a) the day after this Act receives the Royal
Assent; and
(b) immediately after the commencement of
Part 1 of Schedule 2 to the Crimes
Legislation Amendment (Serious and
Organised Crime) Act 2010.
However, the provision(s) do not commence
at all if the event mentioned in paragraph (b)
does not occur.
7. Schedules 2, 3 The day after this Act receives the Royal 20 February
and 4 Assent. 2010
8. Schedule 5, The 28th day after this Act receives the 19 March 2010
Part 1 Royal Assent.
9. Schedule 5, The day after this Act receives the Royal 20 February
Part 2 Assent. 2010
10. Schedule 6, The later of: 20 February
items 1 and 2 2010(a) the start of the day after this Act receives
the Royal Assent; and (paragraph (a)
(b) immediately after the commencement of applies)
subsection 369(4) of the Criminal
Procedure Act 2009 of Victoria.
11. Schedule 6, Immediately after the commencement of 1 January 2010
item 3 subsection 369(4) of the Criminal Procedure (see Vict. Act 2009 of Victoria. Gazette No. G50
p3215)
12. Schedules 7, The day after this Act receives the Royal 20 February
8 and 9 Assent. 2010
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Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
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.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect
according to its terms.
4 Regulations
(1) The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or
giving effect to this Act.
(2) In particular, regulations may be made prescribing matters of a
transitional nature (including prescribing any saving or application
provisions) relating to the amendments or repeals made by this
Act.
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Proceeds of crime Schedule 1
Exclusion, recovery and compensation Part 1
Schedule 1—Proceeds of crime
Part 1—Exclusion, recovery and compensation
Proceeds of Crime Act 2002
1 Subsection 29(1)
Omit “may”, substitute “must”.
Note: The heading to section 29 is altered by omitting “Court may exclude” and substituting “Excluding”.
2 Subsection 29(1)
Omit “specified”, substitute “a specified *interest in”.
3 Paragraph 29(1)(b)
Omit “property”, substitute “interest”.
4 Subsection 29(2)
Omit “specified”, substitute “a specified *interest in”.
5 Paragraphs 29(2)(a), (b), (c) and (d)
Omit “property”, substitute “interest”.
6 Subsection 29(3)
Before “property” (first occurring), insert “a specified *interest in”.
7 Paragraphs 29(3)(a) and (d)
Omit “property”, substitute “interest”.
8 Subsection 29(4)
Before “property” (first occurring), insert “a specified *interest in”.
9 Paragraph 29(4)(a)
Omit “owns the property”, substitute “has the interest”.
10 Paragraph 29(4)(b)
Omit “property is not owned”, substitute “interest is not held”.
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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):
(a) must be made to the court that made the *restraining order;
and
(b) may be made at any time after the restraining order is made.
Note: The heading to section 31 is altered by omitting “notice of the order” and substituting “restraining order has been made”.
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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:
(c) if the forfeiture order was (or the forfeiture order applied for
would be) made under section 47 or 49—the court is satisfied
that the applicant’s interest in the property is neither of the
following:
(i) *proceeds of *unlawful activity;
(ii) if an offence on which the order was (or would be)
based is a *serious offence—an instrument of any
serious offence; and
(d) if the forfeiture order was (or the forfeiture order applied for
would be) made under section 48—the court is satisfied that
the applicant’s interest in the property is neither proceeds nor
an instrument of any of the offences to which the forfeiture
order or forfeiture application relates.
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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
(2) A person who claims an *interest in property specified in a *forfeiture order may, at any time after the forfeiture order is made,
apply to the court that made the forfeiture order for an *exclusion
order.
(3) However, unless the court gives leave, the person cannot apply for
an *exclusion order if he or she:
(a) was notified of the application for the *forfeiture order, but
did not appear at the hearing of that application; or
(b) appeared at the hearing of that application.
(4) The court may give the person leave to apply if the court is
satisfied that:
(a) if paragraph (3)(a) applies—the person had a good reason for
not appearing; or
(b) if paragraph (3)(b) applies—the person now has evidence
relevant to the person’s application that was not available to
the person at the time of the hearing; or
(c) in either case—there are other special grounds for granting
the leave.
27 Subsection 75(3)
Omit “examine the applicant under Part 3-1”, substitute “conduct *examinations in relation to the application”.
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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:
Subdivision C—Compensating for proportion of property not
derived or realised from commission of any offence
30 Subsection 77(1)
Repeal the subsection, substitute:
(1) A court that made a *forfeiture order, or that is hearing, or is to
hear, an application for a forfeiture order, must make an order
under subsection (2) (a compensation order) if:
(a) a person (the applicant) has applied for a compensation
order; and
(b) the court is satisfied that the applicant has an *interest in
property specified in the forfeiture order or in the application
for the forfeiture order; and
(c) the court is satisfied that a proportion of the value of the
applicant’s interest was not derived or realised, directly or
indirectly, from the commission of any offence; and
(d) the court is satisfied that the applicant’s interest is not an
instrument of any offence; and
(e) in the case of a court that is hearing or is to hear an
application for a forfeiture order—the court makes the
forfeiture order.
31 Paragraph 77(2)(b)
After “Commonwealth”, insert “, once the property has vested
absolutely in it,”.
32 Section 78
Repeal the section, substitute:
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Schedule 1 Proceeds of crime
Part 1 Exclusion, recovery and compensation
78 Application for compensation orders
Before a forfeiture order has been made
(1) A person may apply to a court for a *compensation order if an
application for a *forfeiture order that could specify property in
which the person claims an *interest has been made to the court,
but the forfeiture order is yet to be made.
After a forfeiture order has been made
(2) A person who claims an *interest in property specified in a *forfeiture order may, at any time after the forfeiture order is made,
apply to the court that made the forfeiture order for a *compensation order.
(3) However, unless the court gives leave, the person cannot apply
under subsection (2) if he or she:
(a) was notified of the application for the *forfeiture order, but
did not make an application under subsection (1) before the
forfeiture order was made; or
(b) appeared at the hearing of the application for the forfeiture
order.
(4) The court may give the person leave to apply under subsection (2)
if the court is satisfied that:
(a) if paragraph (3)(a) applies—the person had a good reason for
not making an application under subsection (1) before the *forfeiture order was made; or
(b) in either case:
(i) the person now has evidence relevant to the making of
the *compensation order that was not available to the
person at the time the forfeiture order was made; or
(ii) there are other special grounds for granting the leave.
33 At the end of subsection 79(3)
Add “However, the DPP need not do so until it has had a reasonable
opportunity to conduct *examinations in relation to the application.”.
34 At the end of Subdivision C of Division 5 of Part 2-2
Add:
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Exclusion, recovery and compensation Part 1
79A When an application can be heard
An application for a *compensation order must not be heard until
the *DPP has had a reasonable opportunity to conduct *examinations in relation to the application.
35 Application
(1) Subdivisions B and C of Division 5 of Part 2-2 of the Proceeds of
Crime Act 2002, as amended by this Part, apply in relation to forfeiture
orders under section 47 or 49 of that Act that relate to restraining orders
applied for on or after the commencement of this item, whether the
conduct constituting the offence concerned occurred or occurs before,
on or after that commencement.
(2) Subdivisions B and C of Division 5 of Part 2-2 of the Proceeds of
Crime Act 2002, as amended by this Part, apply in relation to forfeiture
orders under section 48 of that Act applied for on or after the
commencement of this item, whether the conduct constituting the
offence concerned occurred or occurs before, on or after that
commencement.
36 Section 91 (simplified outline)
Before:
There are cases in which forfeited property can be recovered from
the Commonwealth.
Insert:
There are cases in which compensation is payable by the
Commonwealth.
37 Paragraph 92(1)(a)
Omit “the”, substitute “a”.
38 Subparagraph 92(1)(b)(i)
After “order”, insert “under section 17 or 18”.
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39 Paragraph 92(3)(a)
Omit “day of the conviction”, substitute “*conviction day”.
40 After section 92
Insert:
92A Notice of date of forfeiture under this Part, etc.
(1) The *DPP must, before property is forfeited under this Part, take
reasonable steps to give any person who has or claims, or whom
the DPP reasonably believes may have, an *interest in the property
a written notice stating:
(a) the date on which the property will be forfeited under this
Part unless it is excluded from forfeiture; and
(b) the effect of section 93 (which deals with *extension orders);
and
(c) that the person may be able to apply for an order under one
of the following sections in relation to the property:
(i) section 29 (which deals with the exclusion of property
from *restraining orders);
(ii) section 94 (which deals with the exclusion of property
from forfeiture);
(iii) section 94A (which deals with compensation).
(2) However, the *DPP need not give a notice to a person under
subsection (1) if the person has made:
(a) an application for an *extension order in relation to the
property; and
(b) an application under section 30, 31 or 94 in relation to the
property.
41 Paragraph 93(1)(a)
Omit “day of”, substitute “*conviction day for”.
42 Paragraph 93(1)(b)
Repeal the paragraph, substitute:
(b) the applicant has also applied to the court under:
(i) section 30 or 31 to exclude property from the restraining
order; or
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(ii) section 94 to exclude the property that is covered by the
restraining order from forfeiture under this Part; and
43 Paragraph 93(1)(c)
Omit “31”, substitute “30, 31 or 94”.
44 Subsection 93(1)
Omit “day of” (last occurring), substitute “conviction day for”.
45 Subsection 93(2)
Omit “31”, substitute “30, 31 or 94”.
46 Subsection 93(2)
Omit “day of”, substitute “*conviction day for”.
47 Subsection 93(3)
Omit “31”, substitute “30, 31 or 94”.
48 At the end of section 93
Add:
(4) If the court makes the *extension order, the *DPP must take
reasonable steps to give any person who has or claims, or whom
the DPP reasonably believes may have, an *interest in the property
to which the order relates a written notice stating:
(a) the date on which the property will be forfeited under this
Part, in accordance with the extension order, unless it is
excluded from forfeiture; and
(b) the effect of subsections (2) and (3).
49 Subsection 94(1)
Omit “the *restraining”, substitute “a *restraining”.
50 Subsection 94(1)
Omit “may”, substitute “must”.
51 Paragraphs 94(1)(a), (b) and (c)
Repeal the paragraphs, substitute:
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(a) a person (the applicant) has applied for an order under this
section; and
(b) the court is satisfied that the applicant has an *interest in
property covered by the restraining order; and
52 Paragraph 94(1)(d)
Omit “the person”, substitute “a person”.
53 Paragraph 94(1)(e)
Before “property”, insert “applicant’s interest in the”.
54 Paragraph 94(1)(f)
Omit “defendant’s”, substitute “applicant’s”.
55 At the end of subsection 94(5)
Add “However, the DPP need not do so until it has had a reasonable
opportunity to conduct *examinations in relation to the application.”.
56 At the end of section 94
Add:
(6) The application must not be heard until the *DPP has had a
reasonable opportunity to conduct *examinations in relation to the
application.
57 After section 94
Insert:
94A Compensating for proportion of property not derived or
realised from commission of any offence
(1) The court that made a *restraining order referred to in paragraph
92(1)(b) must make an order that complies with subsection (2) if:
(a) a person (the applicant) has applied for an order under this
section; and
(b) the court is satisfied that the applicant has an *interest in
property covered, or that was at any time covered, by the
restraining order; and
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(c) a person has been convicted of a *serious offence to which
the restraining order relates; and
(d) the court is satisfied that a proportion of the value of the
applicant’s interest was not derived or realised, directly or
indirectly, from the commission of any offence; and
(e) the court is satisfied that the applicant’s interest is not an *instrument of any offence.
(2) An order under this section must:
(a) specify the proportion found by the court under
paragraph (1)(d); and
(b) direct the Commonwealth, once the property has vested
absolutely in it, to:
(i) if the property has not been disposed of—dispose of the
property; and
(ii) pay the applicant an amount equal to that proportion of
the difference between the amount received from
disposing of the property and the sum of any payments
of the kind referred to in paragraph 100(1)(b) in
connection with the forfeiture.
(3) A person who claims an *interest in property covered by a *restraining order referred to in paragraph 92(1)(b) may apply to
the court that made the restraining order for an order under this
section at any time.
(4) However, if the property has already been forfeited under this Part,
the person cannot, unless the court gives leave, apply under
subsection (3) if he or she:
(a) either:
(i) was given a notice under subsection 92A(1) in relation
to the property; or
(ii) was not given such a notice because of subsection
92A(2); and
(b) did not make the application under subsection (3) before that
forfeiture.
(5) The court may give the person leave to apply if the court is
satisfied that:
(a) the person had a good reason for not making the application
before the forfeiture; or
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(b) the person now has evidence relevant to the application that
was not available before the forfeiture; or
(c) there are special grounds for granting the leave.
(6) The person must give written notice to the *DPP of both the
application and the grounds on which the order is sought.
(7) The *DPP may appear and adduce evidence at the hearing of the
application.
(8) The *DPP must give the applicant notice of any grounds on which
it proposes to contest the application. However, the DPP need not
do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.
(9) The application must not be heard until the *DPP has had a
reasonable opportunity to conduct *examinations in relation to the
application.
58 Subsection 102(1)
Omit “(1)”.
59 Subsection 102(1)
Omit “may”, substitute “must”.
60 Paragraph 102(1)(b)
Repeal the paragraph, substitute:
(b) the court is satisfied that:
(i) the applicant had an interest in the property before the
forfeiture of the property; and
(ii) the applicant’s interest in the property is neither *proceeds of unlawful activity nor an *instrument of
unlawful activity; and
(iii) the applicant’s interest in the property was lawfully
acquired;
61 Subparagraph 102(1)(d)(ii)
Omit “declaring that there is payable by the Commonwealth”, substitute
“directing the Commonwealth to pay”.
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62 Subsections 102(2) and (3)
Repeal the subsections.
63 Section 104
Repeal the section, substitute:
104 Applying for orders under section 102 or 103
(1) A person who claims an *interest in property that has been forfeited
to the Commonwealth under section 92 may, at any time after the
forfeiture, apply to the court that made the *restraining order
referred to in paragraph 92(1)(b) for an order under section 102 or
103.
(2) However, unless the court gives leave, the person cannot make an
application for an order under section 102 if he or she:
(a) either:
(i) was given a notice under subsection 92A(1) in relation
to the property; or
(ii) was not given such a notice because of subsection
92A(2); and
(b) either:
(i) did not make an application under section 29 or 94 in
relation to the property; or
(ii) made such an application and appeared at the hearing of
the application.
(3) The court may give the person leave to apply if the court is
satisfied that:
(a) if subparagraph (2)(b)(i) applies—the person had a good
reason for not making an application under section 29 or 94;
or
(b) if subparagraph (2)(b)(ii) applies—the person now has
evidence relevant to the person’s application under this
section that was not available at the time of the hearing; or
(c) in either case—there are other special grounds for granting
the leave.
(4) The applicant must give written notice to the *DPP of both the
application and the grounds on which the order is sought.
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(5) The *DPP may appear and adduce evidence at the hearing of the
application.
(6) The *DPP must give the applicant notice of any grounds on which
it proposes to contest the application. However, the DPP need not
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.
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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:
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(2A) The *penalty amount may be increased if:
(a) the penalty amount was reduced under section 130 to take
account of a forfeiture of property or a proposed *forfeiture
order against property; and
(b) one of the following orders has been made:
(i) an order under section 73 or 94 excluding an *interest in
the property from forfeiture;
(ii) an order under section 77 or 94A (which deal with
compensation) directing the Commonwealth to pay an
amount to a person in relation to a proportion of an
interest in the property that was not derived or realised
from the commission of any offence;
(iii) an order under section 102 (which deals with the
recovery of property) in relation to an interest in the
property.
The amount of the increase is such amount as the court considers
appropriate.
(2B) In determining the amount of the increase for the purposes of
subsection (2A), the court may have regard to:
(a) if subparagraph (2A)(b)(i) or (iii) applies—the value of the
interest, as at the time the order was made; and
(b) if subparagraph (2A)(b)(ii) applies—the amount that the
Commonwealth was required to pay; and
(c) any other matter the court considers relevant.
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
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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:
(a) the person’s conviction of any of the offences to which the
order relates is subsequently *quashed; and
(b) the *DPP does not, within 14 days after the conviction is
quashed, apply to the court that made the order for the order
to be confirmed or varied.
83 Subsection 146(2)
Omit “However, unless”, substitute “Unless”.
84 After subsection 146(2)
Insert:
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(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:
(a) the person’s conviction of the offence is subsequently *quashed; and
(b) the order does not relate to any other offence; and
(c) the offence is not a *serious offence.
86 Section 147 (including the note)
After “confirmation” (wherever occurring), insert “or variation”.
Note: The heading to section 147 is altered by inserting “or variation” after “confirmation”.
87 Subsection 148(1)
After “confirmation”, insert “or variation”.
Note: The heading to section 148 is altered by inserting “or variation” after “confirmation”.
88 Subparagraph 148(2)(a)(i)
Omit “the offence”, substitute “any of the offences to which the order
relates”.
89 Subparagraph 148(2)(a)(ii)
Omit “that offence”, substitute “any of those offences”.
90 Paragraph 148(2)(a)
Omit “the conviction”, substitute “such a conviction”.
91 After section 149
Insert:
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149A Court may vary pecuniary penalty order
(1) The court may vary the *pecuniary penalty order by reducing the *penalty amount by an amount worked out under subsection (2) if
the court is satisfied that:
(a) the order relates to more than one offence; and
(b) when the *DPP applied for the order, the court could have
made the order in relation to at least one of the offences that
has not been *quashed.
(2) The amount is an amount equal to so much of the *penalty amount
as the court reasonably believes to be attributable to a person’s
conviction of an offence:
(a) to which the *pecuniary penalty order relates; and
(b) that was *quashed.
(3) In determining the amount by which the *penalty amount should be
reduced under subsection (2), the court may have regard to:
(a) the transcripts and evidence referred to in subsection 148(2);
and
(b) the transcript of, and the evidence given in, any proceedings
relating to the application for the *pecuniary penalty order or
any application to vary the order; and
(c) any other matter that the court considers relevant.
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.
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95 Paragraph 335(6)(a)
Repeal the paragraph, substitute:
(a) the order would, if made, be one of the following orders
relating to an offence of which a person has been convicted:
(i) a *restraining order under section 17;
(ii) a *forfeiture order under section 48;
(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.
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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:
180A Examination orders relating to applications for exclusion from
forfeiture
(1) If an application for an order under section 73 or 94 for an *interest
in property to be excluded from forfeiture is made, the court to
which the application is made may make an order (an examination
order) for the *examination of any person including:
(a) a person who has or claims an interest in the property; or
(b) the spouse or *de facto partner of a person referred to in
paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
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(2) The *examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
180B Examination orders relating to applications for compensation
(1) If an application for an order under section 77 or 94A (which deal
with compensation) is made in relation to an *interest in property
that has been or may be forfeited, the court to which the
application is made may make an order (an examination order) for
the *examination of any person including:
(a) a person who has or claims an *interest in the property; or
(b) the spouse or *de facto partner of a person referred to in
paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
180C Examination orders relating to applications under section 102
(1) If an application for an order under section 102 (which deals with
the recovery of property) is made under section 104 in relation to
forfeited property, the court to which the application is made may
make an order (an examination order) for the *examination of any
person including:
(a) a person who has or claims an *interest in the property; or
(b) the spouse or *de facto partner of a person referred to in
paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
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180D Examination orders relating to enforcement of confiscation
orders
(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:
(a) a person against whom the confiscation order was made; or
(b) the spouse or *de facto partner of a person referred to in
paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when proceedings
relating to the enforcement of the *confiscation order are finally
determined, withdrawn or otherwise disposed of.
180E Examination orders relating to restraining orders revoked
under section 44
(1) 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:
(a) a person whose property was, or a person who had an *interest in property that was, the subject of the restraining
order; or
(b) the spouse or *de facto partner of a person referred to in
paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when the *restraining
order would have ceased to have effect, assuming it had not been
revoked under section 44.
104 Application
(1) Sections 180A and 180B of the Proceeds of Crime Act 2002, as inserted
by this Part, apply in relation to applications for orders under section 73
or 77 of that Act:
(a) if the forfeiture order to which the application relates was or
would be made under section 47 or 49 of that Act—that
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relate to restraining orders applied for on or after the
commencement of this item; and
(b) if the forfeiture order to which the application relates was or
would be made under section 48 of that Act—that relate to
forfeiture orders applied for on or after the commencement of
this item;
whether the conduct constituting the offence concerned occurred or
occurs before, on or after that commencement.
(2) Sections 180A and 180B of the Proceeds of Crime Act 2002, as inserted
by this Part, apply in relation to applications for orders under section 94
or 94A of that Act that relate to restraining orders applied for on or after
the commencement of this item, whether the conduct constituting the
offence concerned occurred or occurs before, on or after that
commencement.
(3) Sections 180C and 180E of the Proceeds of Crime Act 2002, as inserted
by this Part, apply in relation to restraining orders applied for on or after
the commencement of this item, whether the conduct constituting the
offence concerned occurred or occurs before, on or after that
commencement.
(4) Section 180D of the Proceeds of Crime Act 2002, as inserted by this
Part, applies in relation to confiscation orders applied for on or after the
commencement of this item, whether the conduct constituting the
offence concerned occurred or occurs before, on or after that
commencement.
105 Subsection 181(1)
Omit “affairs”, substitute “*affairs”.
106 Subsection 181(1)
Omit “(including the nature and location of any property)”.
107 Application
Section 181 of the Proceeds of Crime Act 2002, as amended by this
Part, applies in relation to convictions quashed on or after the
commencement of this item, whether the conduct constituting the
offence concerned occurred or occurs before, on or after that
commencement.
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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:
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(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:
197A Giving false or misleading answers or documents
A person commits an offence if:
(a) the person is attending an *examination; and
(b) the person gives an answer or produces a document in the
examination; and
(c) the answer or document:
(i) is false or misleading; or
(ii) omits any matter or thing without which it is
misleading.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
117 Subparagraph 269(a)(ii)
Omit “affairs”, substitute “*affairs”.
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118 Section 338
Insert:
affairs of a person includes, but is not limited to:
(a) the nature and location of property of the person or property
in which the person has an interest; and
(b) any activities of the person that are, or may be, relevant to
whether or not the person has engaged in unlawful activity of
a kind relevant to the making of an order under this Act.
119 Section 338 (definition of examination order)
After “180”, insert “, 180A, 180B, 180C, 180D, 180E”.
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120 After paragraph 202(5)(c)
Insert:
(ca) a document relevant to identifying, locating or quantifying
property suspected of being:
(i) proceeds of an indictable offence, a *foreign indictable
offence or an *indictable offence of Commonwealth
concern; or
(ii) an instrument of a serious offence;
whether or not the identity of the person who committed the
offence is known;
121 Paragraph 202(5)(d)
Omit “such property”, substitute “property referred to in paragraph (c)
or (ca)”.
122 Paragraph 202(5)(f)
After “(c),”, insert “(ca),”.
123 Subsection 202(6)
After “(5)(c)(ii)”, insert “or paragraph (5)(ca)”.
124 Subsection 202(6)
Omit “subparagraph” (second occurring), substitute “provision”.
125 After paragraph 203(1)(c)
Insert:
(ca) specify the form and manner in which those documents are to
be produced; and
126 Subsection 203(2)
Repeal the subsection, substitute:
(2) The time or times specified under paragraph (1)(c) must be:
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(a) at least 14 days after the day on which the *production order
is made; or
(b) if the magistrate who makes the production order is satisfied
that it is appropriate, having regard to the matters specified in
subsection (3), to specify an earlier time—at least 3 days
after the day on which the production order is made.
(3) The matters to which the magistrate must have regard for the
purposes of deciding whether an earlier time is appropriate under
paragraph (2)(b) are:
(a) the urgency of the situation; and
(b) any hardship that may be caused to the person required by
the *production order to produce documents or make
documents available.
127 At the end of section 211
Add:
(3) It is a defence to an offence against subsection (1) if:
(a) the person fails to comply with the *production order only
because the person does not produce one or more documents
specified in the order within the time specified in the order;
and
(b) the person took all reasonable steps to produce the document
or documents within that time; and
(c) the person produces the document or documents as soon as
practicable after that time.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code).
128 Application
Part 3-2 of the Proceeds of Crime Act 2002, as amended by this Part,
applies in relation to production orders applied for on or after the
commencement of this item, whether the conduct constituting the
offence concerned occurred or occurs before, on or after that
commencement.
129 Paragraphs 213(1)(a) and (b)
After “is”, insert “or was”.
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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
(g) the Chief Executive Officer of Customs; or
(h) the Chairperson of the Australian Securities and Investments
Commission.
134 Section 214
Before “The”, insert “(1)”.
135 Paragraph 214(d)
After “provided”, insert “, having regard to the record-keeping
capabilities of the financial institution (to the extent known to the
officer)”.
136 Paragraph 214(e)
Repeal the paragraph, substitute:
(e) specify that the information or documents must be provided
no later than:
(i) 14 days after the giving of the notice; or
(ii) if the officer giving the notice believes that it is
appropriate, having regard to the matters specified in
subsection (2), to specify an earlier day that is at least 3
days after the giving of the notice—that earlier day; and
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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:
(a) the urgency of the situation; and
(b) any hardship that may be caused to the *financial institution
required by the notice to provide the information or
documents.
138 Section 218
Before “A”, insert “(1)”.
139 At the end of section 218
Add:
(2) It is a defence to an offence against subsection (1) if:
(a) the person fails to comply with the notice only because the
person does not provide the information or a document
within the period specified in the notice; and
(b) the person took all reasonable steps to provide the
information or document within that period; and
(c) the person provides the information or document as soon as
practicable after the end of that period.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
140 Application
Part 3-3 of the Proceeds of Crime Act 2002, as amended by this Part,
applies in relation to notices given under section 213 of that Act on or
after the commencement of this item, whether the conduct constituting
the offence concerned occurred or occurs before, on or after that
commencement.
141 Subsection 219(1)
Repeal the subsection, substitute:
(1) A judge of a court of a State or Territory that has jurisdiction to
deal with criminal matters on indictment may make an order (a
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Part 4 Notices
monitoring order) that a *financial institution provide information
about transactions:
(a) conducted during a particular period through an *account
held by a particular person with the institution; or
(b) made using a *stored value card issued to a particular person
by a financial institution.
142 Paragraph 219(2)(a)
Omit “in respect of whose *account the information is sought”,
substitute “who holds the *account or to whom the *stored value card
was issued”.
143 Paragraph 219(2)(b)
After “account”, insert “or card”.
144 Subsection 219(3)
Omit “in question”, substitute “or to whom the card was issued”.
145 Paragraph 220(1)(a)
Repeal the paragraph, substitute:
(a) specify the name or names:
(i) in which the *account is believed to be held; or
(ii) of the person to whom the *stored value card was
issued; and
146 Application
Part 3-4 of the Proceeds of Crime Act 2002, as amended by this Part,
applies in relation to monitoring orders applied for on or after the
commencement of this item, whether the conduct constituting the
offence concerned occurred or occurs before, on or after that
commencement.
147 Section 338 (definition of account)
Repeal the definition, substitute:
account means any facility or arrangement through which a *financial institution accepts deposits or allows withdrawals and
includes:
(a) a facility or arrangement for:
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(i) a *fixed term deposit; or
(ii) a safety deposit box; and
(b) a credit card account; and
(c) a loan account (other than a credit card account); and
(d) an account held in the form of units in:
(i) a cash management trust; or
(ii) a trust of a kind prescribed by the regulations; and
(e) a closed account.
To avoid doubt, it is immaterial whether:
(f) an account has a nil balance; or
(g) any transactions have been allowed in relation to an account.
148 Section 338
Insert:
stored value card means a portable device that is capable of storing
monetary value in a form other than physical currency, or as
otherwise prescribed by the regulations.
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Part 5 Ancillary orders
Part 5—Ancillary orders
Proceeds of Crime Act 2002
149 After paragraph 39(1)(c)
Insert:
(ca) an order directing the *suspect in relation to the restraining
order to give a sworn statement to a specified person, within
a specified period, setting out all of his or her *interests in
property, and his or her liabilities;
150 Paragraph 39(1)(d)
After “owner” (first occurring), insert “or a previous owner”.
151 Paragraph 39(1)(d)
After “owner” (second occurring), insert “or previous owner”.
152 After paragraph 39(1)(d)
Insert:
(da) if the court is satisfied that there are reasonable grounds to
suspect that a person (other than the owner or a previous
owner) has information relevant to identifying, locating or
quantifying the property—an order directing the person to
give a sworn statement to a specified person, within a
specified period, setting out particulars of, or dealings with,
the property;
153 Paragraph 39(1)(g)
After “restraining order”, insert “, or who has *effective control of
property covered by a restraining order,”.
154 After subsection 39(3)
Insert:
(3A) Despite subsection (3), the court must consider an application for
an ancillary order without notice having been given under that
subsection if:
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(a) the *DPP requests the court to do so; and
(b) the *restraining order to which the application relates was
considered, in accordance with subsection 26(4), without
notice having been given.
155 After subsection 39(4)
Insert:
(4A) The court may, at any time before finally determining the
application, direct the *DPP to give or publish notice of the
application to a specified person or class of persons. The court may
also specify the time and manner in which the notice is to be given
or published.
(4B) If the court makes the ancillary order after a request under
subsection (3A), the *DPP must give written notice to any person
whom the DPP reasonably believes may be affected by the order.
156 After section 39
Insert:
39A Privilege against self incrimination etc. does not apply
(1) A person is not excused from giving a sworn statement under
paragraph 39(1)(ca), (d) or (da) on the grounds that to do so would
tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of a natural person, a sworn statement is not
admissible in civil or criminal proceedings against the person who
made the statement except:
(a) in criminal proceedings for giving false or misleading
information; or
(b) in proceedings on an application under this Act; or
(c) in proceedings ancillary to an application under this Act; or
(d) in proceedings for enforcement of a *confiscation order.
39B Application to revoke ancillary order
(1) A person may apply to the court that made an ancillary order under
section 39 to revoke the order if:
(a) the person is affected by the order; and
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(b) the application for the ancillary order was heard without
notice having been given under subsection 39(3) following a
request under subsection 39(3A).
(2) The application must be made within 14 days after the person was
notified of the ancillary order.
(3) The applicant must give written notice of the application, and the
grounds on which the revocation is sought, to any person who was
entitled to make the application for the ancillary order (see
subsection 39(2)).
(4) The effect of the ancillary order is stayed until the court determines
the application.
(5) The court may revoke the ancillary order on application under
subsection (1) if it considers it appropriate to do so.
(6) The court may have regard to any matter it considers appropriate in
determining the application.
(7) If:
(a) the ancillary order directed a person to do a thing within a
particular period; and
(b) an application is made to revoke the order under this section;
the court may, if it considers it appropriate to do so, vary the order
to extend that period by a specified period.
157 Section 40 (note)
After “restraining order”, insert “, or who has effective control of
property covered by a restraining order,”.
158 Application
Division 5 of Part 2-1 of the Proceeds of Crime Act 2002, as amended
by this Part, applies in relation to restraining orders applied for on or
after the commencement of this item, whether the conduct constituting
the offence concerned occurred or occurs before, on or after that
commencement.
158A Subparagraph 266A(1)(a)(i)
Omit “39(1)(d)”, substitute “39(1)(ca), (d) or (da)”.
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Evidence Part 6
Part 6—Evidence
Proceeds of Crime Act 2002
159 Subsection 64(2)
Omit “If the application relates to a person’s conviction of an *indictable offence, the court”, substitute “The court”.
160 Paragraph 64(2)(a)
Repeal the paragraph, substitute:
(a) the transcript of any proceeding against the person for an
offence that constitutes *unlawful activity; and
161 Application
Section 64 of the Proceeds of Crime Act 2002, as amended by this Part,
applies in relation to forfeiture orders applied for on or after the
commencement of this item, whether the conduct constituting the
offence concerned occurred or occurs before, on or after that
commencement.
162 Subsection 138(2)
Omit “If the application relates to a person’s conviction of an *indictable offence, the court”, substitute “The court”.
163 Paragraph 138(2)(a)
Repeal the paragraph, substitute:
(a) the transcript of any proceeding against the person for an
offence that constitutes *unlawful activity; and
164 Application
Section 138 of the Proceeds of Crime Act 2002, as amended by this
Part, applies in relation to pecuniary penalty orders applied for on or
after the commencement of this item, whether the conduct constituting
the offence concerned occurred or occurs before, on or after that
commencement.
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Part 6 Evidence
165 After section 318
Insert:
318A Admissibility in proceedings of statements made at
examination by absent witness
Scope
(1) This section applies if direct evidence by a person (the absent
witness) of a matter would be admissible in a proceeding before a
court:
(a) on an application for an order under this Act; or
(b) ancillary to such an application; or
(c) for the enforcement of an order made under this Act.
Admissibility of statements made at examination
(2) A statement that the absent witness made at an *examination of the
absent witness and that tends to establish the matter is admissible
in the proceeding as evidence of the matter:
(a) if it appears to the court that:
(i) the absent witness is dead or is unfit, because of
physical or mental incapacity, to attend as a witness; or
(ii) the absent witness is outside the State or Territory in
which the proceeding is being heard and it is not
reasonably practicable to secure his or her attendance;
or
(iii) all reasonable steps have been taken to find the absent
witness but he or she cannot be found; or
(b) if it does not so appear to the court—unless another party to
the proceeding requires the party tendering evidence of the
statement to call the absent witness as a witness in the
proceeding and the tendering party does not so call the absent
witness.
Rules that apply if statement admitted
(3) The rules in subsections (4) to (6) apply if evidence of a statement
is admitted under subsection (2).
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(4) In deciding how much weight (if any) to give to the statement as
evidence of a matter, regard is to be had to:
(a) how long after the matters to which it related occurred the
statement was made; and
(b) any reason the absent witness may have had for concealing or
misrepresenting a material matter; and
(c) any other circumstances from which it is reasonable to draw
an inference about how accurate the statement is.
(5) If the absent witness is not called as a witness in the proceeding:
(a) evidence that would, if the absent witness had been so called,
have been admissible in the proceeding for the purpose of
destroying or supporting his or her credibility is so
admissible; and
(b) evidence is admissible to show that the statement is
inconsistent with another statement that the absent witness
has made at any time.
(6) However, evidence of a matter is not admissible under this section
if, had the absent witness been called as a witness in the
proceeding and denied the matter in cross-examination, evidence
of the matter would not have been admissible if adduced by the
cross-examining party.
318B Objection to admission of statements made at examination
Adducing party to give notice
(1) A party (the adducing party) to a proceeding referred to in
subsection 318A(1) may, not less than 14 days before the first day
of the hearing of the proceeding, give another party to the
proceeding written notice that the adducing party:
(a) will apply to have admitted in evidence in the proceeding
specified statements made at an *examination; and
(b) for that purpose, will apply to have evidence of those
statements admitted in the proceeding.
(2) The notice must set out, or be accompanied by a written record of,
the specified statements.
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Other party may object to admission of specified statements
(3) The other party may, within 14 days after a notice is given under
subsection (1), give the adducing party a written notice (an
objection notice):
(a) stating that the other party objects to specified statements
being admitted in evidence in the proceeding; and
(b) specifying, in relation to each of those statements, the
grounds of objection.
(4) The period referred to in subsection (3) may be extended by the
court before which the proceeding is to be heard or by agreement
between the parties concerned.
Effect of giving objection notice
(5) On receiving an objection notice, the adducing party must give to
the court a copy of:
(a) the notice under subsection (1) and any record under
subsection (2); and
(b) the objection notice.
(6) If subsection (5) is complied with, the court may either:
(a) determine the objections as a preliminary point before the
hearing of the proceeding begins; or
(b) defer determination of the objections until the hearing.
Effect of not giving objection notice
(7) If a notice has been given in accordance with subsections (1) and
(2), the other party is not entitled to object at the hearing of the
proceeding to a statement specified in the notice being admitted in
evidence in the proceeding, unless:
(a) the other party has, in accordance with subsection (3),
objected to the statement being so admitted; or
(b) the court gives the other party leave to object to the statement
being so admitted.
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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.
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Part 7 Definitions
Part 7—Definitions
Proceeds of Crime Act 2002
167 Subsection 19(4)
Omit “*indictable”.
Note: The heading to section 19 is altered by omitting “people suspected of committing” and substituting “property suspected of being proceeds of”.
168 Application
Section 19 of the Proceeds of Crime Act 2002, as amended by this Part,
applies in relation to restraining orders applied for on or after the
commencement of this item, whether the conduct constituting the
offence concerned occurred or occurs before, on or after that
commencement.
169 Subsection 337(3)
Repeal the subsection.
170 After subsection 337(4)
Insert:
(4A) In determining whether or not property is subject to the effective
control of a person, the effect of any order made in relation to the
property under this Act is to be disregarded.
171 At the end of section 337
Add:
(7) To avoid doubt, property may be subject to the effective control of
more than one person.
172 Paragraph 337A(1)(a)
Before “*restraining”, insert “*production order, *search warrant,”.
173 Paragraph 337A(2)(a)
After “*freezing order”, insert “, *production order, *search warrant”.
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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:
(i) that are founded on the same facts or are of a similar
character; and
(ii) that cause, or are intended to cause, a benefit to the
value of at least $10,000 for that person or another
person, or a loss to the Commonwealth or another
person of at least $10,000; or
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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 also be dealt
with as a summary offence in some circumstances)”.
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Technical amendments relating to orders Part 8
Part 8—Technical amendments relating to orders
Proceeds of Crime Act 2002
183 At the end of subsection 45(1)
Add:
; or (h) a new trial is ordered in relation to the offence.
Note: The heading to section 49 is altered by omitting “conduct constituting” and substituting “property suspected of being proceeds of”.
184 Application
Section 45 of the Proceeds of Crime Act 2002, as amended by this Part,
applies in relation to restraining orders applied for on or after the
commencement of this item, whether the conduct constituting the
offence concerned occurred or occurs before, on or after that
commencement.
185 Section 84
Before “The court”, insert “(1)”.
186 At the end of section 84
Add:
(2) For the purposes of paragraphs (1)(a) and (b), the requirement in
paragraph 47(1)(b) or 49(1)(b) (as the case requires) is taken to be
satisfied.
187 Application
Section 84 of the Proceeds of Crime Act 2002, as amended by this Part,
applies in relation to applications made as referred to in paragraph
81(1)(b) of that Act on or after the commencement of this item, whether
the conduct constituting the offence concerned occurred or occurs
before, on or after that commencement.
188 Subsection 85(1)
Omit “84(a)”, substitute “84(1)(a)”.
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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).
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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.
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Part 9 Confiscated Assets Account
Part 9—Confiscated Assets Account
Division 1—Simplification of accounting
Proceeds of Crime Act 2002
198 Subsection 296(2)
Repeal the subsection.
199 Subsection 297(1)
Omit “(1) The following are purposes of the *Confiscated Assets
Account in respect of *suspended funds:”, substitute “The following are
purposes of the *Confiscated Assets Account:”.
200 Subsection 297(2)
Repeal the subsection.
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.
Division 2—Crediting amounts paid to settle proceedings
Proceeds of Crime Act 2002
204 At the end of subsection 296(1)
Add:
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; 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
Proceeds of Crime Act 2002
206 At the end of section 55
Add:
(4) For the purposes of an order described in paragraph (2)(a), an
amount may be specified wholly or partly by reference to a
specified proportion of the difference between:
(a) the amount received from disposing of the combined interests
specified in the *forfeiture order; and
(b) the sum of any payments of the kind referred to in paragraph
70(1)(b) in connection with the forfeiture order.
207 After paragraph 297(1)(f)
Insert:
(fa) making any payments the Commonwealth is directed to make
by an order under paragraph 55(2)(a), section 72, paragraph
73(2)(d), section 77 or 94A, 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);
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Part 9 Confiscated Assets Account
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.
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Other amendments Part 10
Part 10—Other amendments
Administrative Decisions (Judicial Review) Act 1977
210 After paragraph (ya) of Schedule 1
Insert:
(yb) decisions of the DPP to apply for an order under the
Proceeds of Crime Act 2002;
211 Application
The amendment made by item 210 applies in relation to decisions made
on or after the commencement of this item.
Proceeds of Crime Act 2002
212 Paragraph 142(3)(a)
After “property”, insert “(other than an encumbrance in which the
person referred to paragraph (1)(a) has an *interest)”.
213 Paragraph 169(3)(a)
After “property”, insert “(other than an encumbrance in which the
person referred to in paragraph (1)(a) has an *interest)”.
214 Part 4-4 (heading)
Repeal the heading, substitute:
Part 4-4—Charges over restrained property to
secure certain amounts payable to the
Commonwealth
215 Paragraph 302(a)
After “property”, insert “(other than an encumbrance in which the
person who is liable to pay the amount has an *interest)”.
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Part 10 Other amendments
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:
315A Court may hear multiple applications at same time
A court may hear and determine 2 or more applications under this
Act at the same time.
221 Application
Section 315A of the Proceeds of Crime Act 2002, as inserted by this
Part, applies in relation to applications made on or after the
commencement of this item.
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Search warrants Schedule 2
Seized things Part 1
Schedule 2—Search warrants
Part 1—Seized things
Crimes Act 1914
1 Subsection 3C(1) (definition of magistrate)
Omit “3ZW”, substitute “3ZQZ”.
2 Section 3CA
Omit “3ZW” (wherever occurring), substitute “3ZQZ”.
3 Subsection 3F(5)
Repeal the subsection.
4 Paragraph 3L(1B)(b)
Repeal the paragraph, substitute:
(b) the Commissioner is satisfied that the data is not required (or
is no longer required) for a purpose mentioned in
section 3ZQU or for other judicial or administrative review
proceedings;
5 Subsections 3UF(4) to (7)
Repeal the subsections.
Note: The heading to section 3UF is replaced by the heading “Seizure notices”.
6 Subsection 3UF(9)
Repeal the subsection.
7 Section 3UG
Repeal the section.
8 Subsection 3UK(1)
Omit “sections 3UF and 3UG”, substitute “section 3UF”.
9 After Division 4B of Part IAA
Insert:
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Schedule 2 Search warrants
Part 1 Seized things
Division 4C—Using, sharing and returning things seized
and documents produced
Subdivision A—Using and sharing things seized and documents
produced
3ZQU Purposes for which things and documents may be used and
shared
Use and sharing of thing or document by constable or
Commonwealth officer
(1) A constable or Commonwealth officer may use, or make available
to another constable or Commonwealth officer to use, a thing
seized under this Part, or the original or a copy of a document
produced under Division 4B, for the purpose of any or all of the
following if it is necessary to do so for that purpose:
(a) preventing, investigating or prosecuting an offence;
(b) proceedings under the Proceeds of Crime Act 1987 or the
Proceeds of Crime Act 2002;
(c) proceedings under a corresponding law (within the meaning
of either of the Acts mentioned in paragraph (b)) that relate to
a State offence that has a federal aspect;
(d) proceedings for the forfeiture of the thing under a law of the
Commonwealth;
(e) the performance of a function or duty, or the exercise of a
power, by a person, court or other body under, or in relation
to a matter arising under, Division 104 or 105 of the Criminal
Code;
(f) investigating or resolving a complaint or an allegation of
misconduct relating to an exercise of a power or the
performance of a function or duty under this Part;
(g) investigating or resolving an AFP conduct or practices issue
(within the meaning of the Australian Federal Police Act
1979) under Part V of that Act;
(h) investigating or resolving a complaint under the Ombudsman
Act 1976 or the Privacy Act 1988;
(i) investigating or inquiring into a corruption issue under the
Law Enforcement Integrity Commissioner Act 2006;
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(j) proceedings in relation to a complaint, allegation or issue
mentioned in paragraph (f), (g), (h) or (i);
(k) deciding whether to institute proceedings, to make an
application or request, or to take any other action, mentioned
in any of the preceding paragraphs of this subsection;
(l) the performance of the functions of the Australian Federal
Police under section 8 of the Australian Federal Police Act
1979.
(2) A constable or Commonwealth officer may use a thing seized
under this Part, or the original or a copy of a document produced
under Division 4B, for any other use that is required or authorised
by or under a law of a State or a Territory.
(3) A constable or Commonwealth officer may make available to
another constable or Commonwealth officer to use a thing seized
under this Part, or the original or a copy of a document produced
under Division 4B, for any purpose for which the making available
of the thing or document is required or authorised by a law of a
State or Territory.
(4) To avoid doubt, this section does not limit any other law of the
Commonwealth that:
(a) requires or authorises the use of a document or other thing; or
(b) requires or authorises the making available (however
described) of a document or other thing.
Sharing thing or document for use by State, Territory or foreign
agency
(5) A constable or Commonwealth officer may make a thing seized
under this Part, or the original or a copy of a document produced
under Division 4B, available to:
(a) a State or Territory law enforcement agency; or
(b) an agency that has responsibility for:
(i) law enforcement in a foreign country; or
(ii) intelligence gathering for a foreign country; or
(iii) the security of a foreign country;
to be used by that agency for a purpose mentioned in
subsection (1), (2) or (3) and the purpose of any or all of the
following (but not for any other purpose):
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(c) preventing, investigating or prosecuting an offence against a
law of a State or Territory;
(d) proceedings under a corresponding law (within the meaning
of the Proceeds of Crime Act 1987 or the Proceeds of Crime
Act 2002);
(e) proceedings for the forfeiture of the thing under a law of a
State or Territory;
(f) deciding whether to institute proceedings or to take any other
action mentioned in any of paragraphs (1)(a) to (l)
(inclusive), subsection (2) or (3) or paragraph (c), (d) or (e)
of this subsection.
Ministerial arrangements for sharing
(6) This Division does not prevent the Minister from making an
arrangement with a Minister of a State or Territory for:
(a) the making available to a State or Territory law enforcement
agency of that State or Territory, for purposes mentioned in
subsections (1), (3) and (5), of things seized under this Part
and originals and copies of documents produced under
Division 4B; and
(b) the disposal by the agency of such things, originals and
copies when they are no longer of use to that agency for
those purposes.
Note: This subsection does not empower the Minister to make such an arrangement.
Definition
(7) In this section:
State or Territory law enforcement agency means:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission constituted by the
New South Wales Crime Commission Act 1985 of New South
Wales; or
(c) the Independent Commission Against Corruption constituted
by the Independent Commission Against Corruption Act
1988 of New South Wales; or
(d) the Police Integrity Commission constituted by the Police
Integrity Commission Act 1996 of New South Wales; or
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(e) the Office of Police Integrity continued by the Police
Integrity Act 2008 of Victoria; or
(f) the Crime and Misconduct Commission of Queensland; or
(g) the Corruption and Crime Commission established by the
Corruption and Crime Commission Act 2003 of Western
Australia.
3ZQV Operating seized electronic equipment
(1) This section applies to electronic equipment seized under this Part
or moved from warrant premises under section 3K.
(2) The electronic equipment may be operated at any location after it
has been seized or moved, for the purpose of determining whether
data that is evidential material is held on or accessible from the
electronic equipment, and obtaining access to such data.
(3) The data referred to in subsection (2) includes, but is not limited to,
the following:
(a) data held on the electronic equipment, including data held on
the electronic equipment when operated under this section
that was not held on the electronic equipment at the time the
electronic equipment was seized;
(b) data not held on the electronic equipment but accessible by
using it, including data that was not accessible at the time the
electronic equipment was seized.
(4) If the electronic equipment was seized under a warrant or moved
under section 3K, the electronic equipment may be operated before
or after the expiry of the warrant.
(5) This section does not limit the operation of other provisions of this
Part that relate to dealing with items seized under this Part or
moved under section 3K.
Note: For example, this section does not affect the operation of the time limits in section 3K on examination or processing of a thing removed under that section from warrant premises.
3ZQW Compensation for damage to electronic equipment
(1) This section applies if:
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(a) as a result of equipment being operated as mentioned in
section 3ZQV:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or
data access to which was obtained from the operation of
the equipment; or
(iii) programs associated with the use of the equipment, or
with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person
who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating
the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the
user of the data or programs, such reasonable compensation for the
damage or corruption as the Commonwealth and the owner or user
agree on.
(3) However, if the owner or user and the Commonwealth fail to
agree, the owner or user may institute proceedings in a court of
competent jurisdiction for such reasonable amount of
compensation as the court determines.
(4) If the equipment was seized or moved from premises, then, in
determining the amount of compensation payable, regard is to be
had to whether the occupier of the premises, or the occupier’s
employees or agents, if they were available at the time, provided
any appropriate warning or guidance on the operation of the
equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of data or
addition of other data.
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Subdivision B—Returning things seized under Division 2 or 4
3ZQX When things seized under Division 2 or 4 must be returned
(1) If the Commissioner is satisfied that a thing seized under
Division 2 or 4 is not required (or is no longer required) for a
purpose mentioned in section 3ZQU or for other judicial or
administrative review proceedings, the Commissioner must take
reasonable steps to return the thing to the person from whom it was
seized or to the owner if that person is not entitled to possess it.
(2) However, the Commissioner does not have to take those steps if:
(a) the thing may otherwise be retained, destroyed or disposed of
under a law, or an order of a court or tribunal, of the
Commonwealth or of a State or a Territory; or
(b) the thing is forfeited or forfeitable to the Commonwealth or
is the subject of a dispute as to ownership.
Subdivision C—Returning things seized under Division 3
3ZQY When things seized under Division 3 must be returned
(1) If:
(a) the Commissioner is satisfied that a thing seized under
Division 3 is not required (or is no longer required) for a
purpose mentioned in section 3ZQU or for other judicial or
administrative review proceedings; or
(b) the period of 60 days after the thing’s seizure ends;
the Commissioner must take reasonable steps to return the thing to
the person from whom it was seized or to the owner if that person
is not entitled to possess it.
(2) However, the Commissioner does not have to take those steps if:
(a) proceedings in respect of which the thing may afford
evidence were instituted before the end of the 60 days and
have not been completed (including an appeal to a court in
relation to those proceedings); or
(b) the thing may be retained because of an order under
section 3ZQZ; or
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(c) the thing may otherwise be retained, destroyed or disposed of
under a law, or an order of a court or tribunal, of the
Commonwealth or of a State or a Territory; or
(d) the thing is forfeited or forfeitable to the Commonwealth or
is the subject of a dispute as to ownership.
3ZQZ Magistrate may permit a thing seized under Division 3 to be
retained
(1) The Commissioner may apply to a magistrate for an order under
this section that a thing seized under Division 3 may be retained for
a period if the application is made:
(a) before the end of 60 days after the seizure; or
(b) before the end of a period previously specified in an order in
relation to the thing under this section.
(2) If the magistrate is satisfied that the thing is being used, or is
required to be used, for a purpose mentioned in section 3ZQU or
for other judicial or administrative review proceedings, the
magistrate may order that the thing may be retained for the period
specified in the order.
(3) Before making the application, the Commissioner must:
(a) take reasonable steps to discover who has an interest in the
retention of the thing; and
(b) if it is practicable to do so, notify each person who the
Commissioner believes to have such an interest of the
proposed application.
Subdivision D—Returning things seized under Division 3A
3ZQZA Owner may request return of thing
(1) The Commissioner must take reasonable steps to return a thing
seized under Division 3A if the owner requests the return of the
thing.
(2) However, the Commissioner does not have to take those steps if:
(a) the Commissioner suspects on reasonable grounds that if the
thing is returned to the owner, the thing is likely to be used
by the owner or another person in the commission of a
terrorist act, a terrorism offence or a serious offence; or
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(b) the Commissioner is satisfied that the thing is being used, or
is required to be used, for a purpose mentioned in
section 3ZQU or for other judicial or administrative review
proceedings.
(3) If:
(a) the owner of a thing requests the return of the thing:
(i) within 90 days after the date of the seizure notice served
under section 3UF in relation to the thing; or
(ii) if subsection 3UF(2) applied in relation to the thing so
that a seizure notice was not served—within 90 days
after the day on which the thing was seized; and
(b) the thing has not been returned to the owner by the end of the
90th day;
the Commissioner must, before the end of the 95th day:
(c) take reasonable steps to return the thing to the owner; or
(d) apply to a magistrate for an order under section 3ZQZB.
(4) In this section:
terrorist act has the same meaning as in subsection 100.1(1) of the
Criminal Code.
3ZQZB Magistrate may permit a thing seized under Division 3A to
be retained, forfeited etc.
(1) If subsection 3ZQZA(3) applies, the Commissioner may apply to a
magistrate for an order in relation to the thing.
(2) The magistrate must, in determining an application by the
Commissioner under subsection (1), allow the owner of the thing
to appear and be heard.
(3) If the magistrate is satisfied that the thing is being used, or is
required to be used, for a purpose mentioned in section 3ZQU or
for other judicial or administrative review proceedings, the
magistrate may order that the thing may be retained for the period
specified in the order.
(4) If the magistrate is satisfied that there are reasonable grounds to
suspect that, if the thing is returned to the owner, the thing is likely
to be used by the owner or another person in the commission of a
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terrorist act, a terrorism offence or a serious offence, the magistrate
may make any of the following orders:
(a) that the thing may be retained for the period specified in the
order;
(b) that the thing is forfeited to the Commonwealth;
(c) that the thing is to be sold and the proceeds given to the
owner;
(d) that the thing is to be otherwise sold or disposed of.
(5) If the magistrate is not satisfied as mentioned in subsection (3) or
(4), the magistrate must order that the thing be returned to the
owner.
(6) In this section:
terrorist act has the same meaning as in subsection 100.1(1) of the
Criminal Code.
10 Sections 3ZV and 3ZW
Repeal the sections, substitute:
3ZW Delegation by Commissioner
The Commissioner may delegate to a constable any or all of the
Commissioner’s powers, functions or duties under this Part.
11 Application
The amendments made by this Part apply in relation to:
(a) a thing seized before, on or after the commencement of this
Part; and
(b) a document produced before, on or after the commencement
of this Part.
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Part 2—Use of equipment under warrant
Crimes Act 1914
12 Subparagraph 3K(2)(a)(ii)
Repeal the subparagraph, substitute:
(ii) the executing officer or constable assisting suspects on
reasonable grounds that the thing contains or constitutes
evidential material; or
13 After subsection 3K(3)
Insert:
(3AA) The executing officer need not comply with paragraph (3)(a) or (b)
if he or she believes on reasonable grounds that to do so might:
(a) endanger the safety of a person; or
(b) prejudice an investigation or prosecution.
14 Subsections 3K(3A) and (3B)
Omit “72 hours”, substitute “14 days”.
15 After subsection 3K(3C)
Insert:
(3D) A single extension cannot exceed 7 days.
16 Subsection 3L(1)
Repeal the subsection, substitute:
(1) The executing officer or a constable assisting may operate
electronic equipment at the warrant premises to access data
(including data not held at the premises) 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.
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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
(1) If electronic equipment found at the warrant premises is moved to
another place under subsection 3K(2), the executing officer or a
constable assisting may operate the equipment to access data
(including data held at another place).
(2) If the executing officer or constable assisting suspects on
reasonable grounds that any data accessed by operating the
electronic equipment constitutes evidential material, he or she may
copy any or all of the data accessed by operating the electronic
equipment to a disk, tape or other associated device.
(3) If the Commissioner is satisfied that the data is not required (or is
no longer required) for a purpose mentioned in section 3ZQU or
for other judicial or administrative review proceedings, the
Commissioner must arrange for:
(a) the removal of the data from any device in the control of the
Australian Federal Police; and
(b) the destruction of any other reproduction of the data in the
control of the Australian Federal Police.
(4) If the executing officer or a constable assisting, after operating the
equipment, finds that evidential material is accessible by doing so,
he or she may:
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(a) seize the equipment and any disk, tape or other associated
device; or
(b) if the material can be put in documentary form—put the
material in that form and seize the documents so produced.
(5) A constable may seize equipment under paragraph (4)(a) only if:
(a) it is not practicable to copy the data as mentioned in
subsection (2) or to put the material in documentary form as
mentioned in paragraph (4)(b); or
(b) possession by the occupier of the equipment could constitute
an offence.
3LA Person with knowledge of a computer or a computer system to
assist access etc.
(1) A constable may apply to a magistrate for an order requiring a
specified person to provide any information or assistance that is
reasonable and necessary to allow a constable to do one or more of
the following:
(a) access data held in, or accessible from, a computer or data
storage device that:
(i) is on warrant premises; or
(ii) has been removed from warrant premises under
subsection 3K(2) and is at another place for examination
or processing; or
(iii) has been seized under this Division and is no longer on
the warrant premises;
(b) copy data held in, or accessible from, a computer, or data
storage device, described in paragraph (a) to another data
storage device;
(c) convert into documentary form or another form intelligible to
a constable:
(i) data held in, or accessible from, a computer, or data
storage device, described in paragraph (a); or
(ii) data held in a data storage device to which the data was
copied as described in paragraph (b); or
(iii) data held in a data storage device removed from warrant
premises under subsection 3L(1A).
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(2) The magistrate may grant the order if the magistrate is satisfied
that:
(a) there are reasonable grounds for suspecting that evidential
material is held in, or is accessible from, the computer or data
storage device; and
(b) the specified person is:
(i) reasonably suspected of having committed the offence
stated in the relevant warrant; or
(ii) the owner or lessee of the computer or device; or
(iii) an employee of the owner or lessee of the computer or
device; or
(iv) a person engaged under a contract for services by the
owner or lessee of the computer or device; or
(v) a person who uses or has used the computer or device;
or
(vi) a person who is or was a system administrator for the
system including the computer or device; and
(c) the specified person has relevant knowledge of:
(i) the computer or device or a computer network of which
the computer or device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible
from, the computer or device.
(3) If:
(a) the computer or data storage device that is the subject of the
order is seized under this Division; and
(b) the order was granted on the basis of an application made
before the seizure;
the order does not have effect on or after the seizure.
Note: An application for another order under this section relating to the computer or data storage device may be made after the seizure. If the other order is made after the computer or device has been removed from the warrant premises, that other order can specify conditions relating to the provision of information or assistance.
(4) If the computer or data storage device is not on warrant premises,
the order must:
(a) specify the period within which the person must provide the
information or assistance; and
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(b) specify the place at which the person must provide the
information or assistance; and
(c) specify the conditions (if any) determined by the magistrate
as the conditions to which the requirement on the person to
provide the information or assistance is subject.
(5) A person commits an offence if the person fails to comply with the
order.
Penalty for contravention of this subsection:Imprisonment for 2
years.
21 Paragraph 3LB(1)(a)
After “subsection 3L(1)”, insert “or 3LAA(1)”.
22 Paragraph 3LB(1)(d)
After “subsection 3L(1A) or (2)”, insert “or 3LAA(2) or (4)”.
23 Section 3M
Repeal the section, substitute:
3M Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of equipment being operated as mentioned in
section 3K, 3L or 3LAA:
(i) damage is caused to the equipment; or
(ii) damage is caused to data recorded on the equipment or
data access to which was obtained from the operation of
the equipment; or
(iii) programs associated with the use of the equipment, or
with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person
who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating
the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the
user of the data or programs, such reasonable compensation for the
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damage or corruption as the Commonwealth and the owner or user
agree on.
(3) However, if the owner or user and the Commonwealth fail to
agree, the owner or user may institute proceedings in a court of
competent jurisdiction for such reasonable amount of
compensation as the court determines.
(4) In determining the amount of compensation payable, regard is to
be had to whether the occupier of the premises, or the occupier’s
employees or agents, if they were available at the time, provided
any appropriate warning or guidance on the operation of the
equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(6) For the purposes of subsection (1):
damage, in relation to data, includes damage by erasure of data or
addition of other data.
24 Paragraph 3N(2)(a)
After “paragraph 3L(2)(b)”, insert “or 3LAA(4)(b)”.
25 Application
(1) The amendments made by this Part apply in relation to warrants issued
on or after the commencement of this Part.
(2) However, section 3LA of the Crimes Act 1914 as amended by this Part
applies in relation to orders under that section made after the
commencement of the amendments. For this purpose it does not matter
whether one or more of the following events occurred before, on or
after that commencement:
(a) the issue of the warrant concerned;
(b) the removal or seizure of the computer or data storage device
(if such removal or seizure is relevant to applying for or
making the order concerned).
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Schedule 3—Witness protection
Part 1—Amendments
Witness Protection Act 1994
1 Section 3 (paragraph (b) of the definition of complementary witness protection law)
Omit “by the Minister by notice published in the Gazette”, substitute
“under section 3AA”.
2 Section 3
Insert:
current NWPP identity, in relation to a participant at a particular
time, means an identity:
(a) provided to the participant under the NWPP; and
(b) being used by the participant at that time.
3 Section 3
Insert:
former NWPP identity, in relation to a participant at a particular
time, means an identity that:
(a) was provided to the person under the NWPP before that time;
and
(b) is not the participant’s current NWPP identity at that time.
4 Section 3
Insert:
former participant means a person who has ceased to be included
in the NWPP.
5 Section 3
Insert:
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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:
(a) appearance;
(b) voice quality or accent;
(c) mannerisms;
(d) address or location;
(e) particular skills and qualifications;
(f) personal history.
7 Section 3
Insert:
original identity, in relation to a participant, means the identity of
the participant at the time immediately before he or she was first
provided with an identity under the NWPP.
8 Section 3 (definition of participant)
Repeal the definition, substitute:
participant means a person included in the NWPP and, unless the
contrary intention appears, includes a former participant.
9 Section 3
Insert:
State offence that has a federal aspect has the meaning given by
section 3AB.
10 Section 3
Insert:
State participant means a participant:
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(a) in relation to a State offence that has a federal aspect; or
(b) in relation to a State offence that does not have a federal
aspect; or
(c) in relation to a commission or inquiry under a law of a State.
11 Section 3
Insert:
Territory participant means a participant:
(a) in relation to an offence against a law of a Territory; or
(b) in relation to a commission or inquiry under a law of a
Territory.
12 Section 3 (paragraph (e) of the definition of witness)
Omit “such a person”, substitute “a person referred to in paragraph (a),
(b), (c) or (d)”.
13 After section 3
Insert:
3AA Declaration of complementary witness protection law
For the purposes of this Act, the Minister may, by legislative
instrument, declare a law of a State or Territory to be a
complementary witness protection law.
3AB State offence that has a federal aspect
An offence against a law of a State is taken, for the purposes of this
Act, to be a State offence that has a federal aspect:
(a) in a case where the offence is being investigated by the
Australian Federal Police—if it would be taken to be a State
offence that has a federal aspect under section 4AA of the
Australian Federal Police Act 1979; and
(b) in a case where the offence is being investigated by the
Australian Crime Commission—if it would be taken to be a
State offence that has a federal aspect under section 4A of the
Australian Crime Commission Act 2002; and
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(c) in any other case—if it would be taken to be a State offence
that has a federal aspect if either of the sections referred to in
paragraphs (a) and (b) were to apply.
14 At the end of section 8
Add:
(6) In this section:
participant does not include a former participant.
15 At the end of section 9
Add:
(8) In this section:
participant does not include a former participant.
(9) To avoid doubt, subsection (8) does not affect any obligation of a
former participant under a memorandum of understanding if the
obligation continues (whether expressly or impliedly) to have
effect after the former participant ceased to be included in the
NWPP.
16 Paragraph 11(3)(b)
After “name”, insert “for each new identity”.
17 Paragraph 11(3)(e)
Repeal the paragraph, substitute:
(e) in the case of a former participant—the date on which the
person became a former participant.
18 Paragraph 11(5)(d)
Omit “19(2)”, substitute “19(6)”.
19 At the end of section 11
Add:
(6) In this section, participant and former participant do not include a
person who is a former participant only because of the operation of
subsection 13(6).
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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:
(5) The Commissioner may take the actions referred to in
subsections (1) and (2) in respect of a former participant, or any
other person whose relationship with the former participant is such
that the Commissioner is satisfied that it is appropriate to take
those actions, as if the former participant or other person were a
witness included in the NWPP, if:
(a) the Commissioner considers the actions necessary and
reasonable for the protection of the former participant or the
other person; and
(b) the Commissioner has assessed the suitability of taking the
actions in respect of the former participant or the other
person.
(6) If the Commissioner takes action under subsection (5) in respect of
a person other than a former participant, this Act applies to the
person as if the person were a former participant.
(7) When the Commissioner first takes action under subsection (5) in
respect of a former participant who was a participant under
section 10 or 10A, the Commissioner must give the Immigration
Secretary, or an officer nominated by that Secretary, written notice
that he or she has taken that action.
23 Subparagraph 14(b)(ii)
Before “identity”, insert “original”.
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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”.
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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):
(a) must be terminated by the Commissioner if the person
requests in writing that it be terminated; or
(b) may be terminated by a Deputy Commissioner if:
(i) the Deputy Commissioner discovers that the person had
knowingly given information to the Commissioner that
is false or misleading in a material particular; or
(ii) the person’s conduct or threatened conduct is, in the
opinion of the Deputy Commissioner, likely to
compromise the integrity of the NWPP; or
(iii) the circumstances that gave rise to the need for
protection and assistance for the person cease to exist;
or
(iv) the person deliberately breaches an undertaking given to
the Commonwealth, a State or a Territory that is
relevant to the provision of that protection and
assistance; or
(v) there is, in the opinion of the Deputy Commissioner, no
reasonable justification for protection and assistance to
continue to be provided to the person;
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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:
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Notification of Immigration Secretary
(6) If:
(a) a Deputy Commissioner makes a termination decision in
relation to a person; and
(b) the person was at any time a participant under section 10 or
10A;
the Commissioner must give the Immigration Secretary, or an
officer nominated by that Secretary, written notice of that decision.
45 At the end of section 18
Add:
(7) In this section:
participant does not include a former participant.
46 Subsection 19(1)
Repeal the subsection, substitute:
(1) If a participant has been provided with a new identity under the
NWPP, a Deputy Commissioner may, if he or she considers it
appropriate to do so, take such action as is necessary to restore the
original identity or any former NWPP identity of the participant.
47 Subsection 19(2)
Omit “former”.
48 Subsection 19(3)
Omit “former participant’s former identity, the former”, substitute
“original identity or any former NWPP identity of the participant, the”.
49 Subsections 19(5) and (6)
Repeal the subsections, substitute:
(5) If the Commissioner or a Deputy Commissioner takes action under
this section to restore the original identity or any former NWPP
identity of a Commonwealth participant, a State participant or a
Territory participant, the Commissioner or a Deputy Commissioner
may give a notice to the participant under subsection (6).
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(6) The notice:
(a) must be in writing; and
(b) must require the participant to return to the Commissioner,
within 10 days of the giving of the notice, all documents
provided to the participant that relate to:
(i) the participant’s current NWPP identity; and
(ii) any former NWPP identity of the participant that is not
being restored.
(7) A person commits an offence if:
(a) the person is given a notice under subsection (6); and
(b) the person refuses or fails to comply with the notice.
Penalty: 10 penalty units.
50 Paragraph 20(c)
Omit “new identity or new location”, substitute “current NWPP identity
or current location”.
51 Section 21
After “conferred”, insert “, or the performance or purported
performance of a function conferred or a duty imposed,”.
52 Section 22
Repeal the section, substitute:
22 Offences relating to Commonwealth or Territory participants
Disclosure of information about Commonwealth or Territory
participant
(1) A person commits an offence if:
(a) the person discloses information about an individual; and
(b) the individual is a participant; and
(c) the individual is a Commonwealth participant or a Territory
participant; and
(d) either or both of the following apply:
(i) the individual has a current NWPP identity at the time
the information is disclosed and the information is about
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the original identity or a former NWPP identity of the
individual;
(ii) there is a risk that disclosure of the information will
reveal that the individual is a participant.
Penalty: Imprisonment for 2 years.
Disclosure of information about individual undergoing assessment
as Commonwealth or Territory participant
(2) A person commits an offence if:
(a) the person discloses information about an individual; and
(b) the individual is undergoing assessment for inclusion in the
NWPP at the time the information is disclosed; and
(c) if the individual were included in the NWPP following that
assessment, the individual would be a Commonwealth
participant or a Territory participant; and
(d) there is a risk that disclosure of the information will reveal
that the individual is undergoing such assessment.
Penalty: Imprisonment for 2 years.
Disclosure of information that may compromise security of
Commonwealth or Territory participant
(3) A person commits an offence if:
(a) the person discloses information about an individual; and
(b) the individual is a participant; and
(c) the individual is a Commonwealth participant or a Territory
participant; and
(d) either or both of the following apply:
(i) the individual has a current NWPP identity at the time
the information is disclosed and the information is about
the original identity or a former NWPP identity of the
individual;
(ii) there is a risk that disclosure of the information will
reveal that the individual is a participant; and
(e) there is a risk that disclosure of the information will
compromise the security of the individual.
Penalty: Imprisonment for 10 years.
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Disclosure of information that may compromise security of
individual undergoing assessment as Commonwealth or Territory
participant
(4) A person commits an offence if:
(a) the person discloses information about an individual; and
(b) the individual is undergoing assessment for inclusion in the
NWPP at the time the information is disclosed; and
(c) if the individual were included in the NWPP following that
assessment, the individual would be a Commonwealth
participant or a Territory participant; and
(d) there is a risk that disclosure of the information will reveal
that the individual is undergoing such assessment; and
(e) there is a risk that disclosure of the information will
compromise the security of the individual.
Penalty: Imprisonment for 10 years.
(5) Subsections (1), (2), (3) and (4) do not apply to a disclosure by a
person if:
(a) the person has been authorised by the Commissioner to make
the disclosure; or
(b) the disclosure is made for the purpose of making a complaint,
or providing information, to the Ombudsman under the
Ombudsman Act 1976; or
(c) the disclosure is made 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; or
(d) the disclosure is made for the purpose of:
(i) giving information that raises an AFP conduct or
practices issue (within the meaning of the Australian
Federal Police Act 1979); or
(ii) investigating or resolving an AFP conduct or practices
issue under Part V of that Act.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5) (see subsection 13.3(3) of the Criminal Code).
(6) Absolute liability applies to paragraphs (1)(c), (2)(c), (3)(c) and
(4)(c).
Note: For absolute liability, see section 6.2 of the Criminal Code.
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(7) To avoid doubt, a person may be convicted of an offence against
subsection (1), (2), (3) or (4) because of a risk that a disclosure will
have a particular effect even if the disclosure does not actually
have that effect.
22A Offences relating to State participants
Disclosure of information about State participant
(1) A person commits an offence if:
(a) the person is:
(i) a Commonwealth officer; or
(ii) a Commonwealth participant; or
(iii) a State participant; or
(iv) a Territory participant; or
(v) any other person; and
(b) the person discloses information about an individual; and
(c) the individual is a participant; and
(d) the individual is a State participant; and
(e) either or both of the following apply:
(i) the individual has a current NWPP identity at the time
the information is disclosed and the information is about
the original identity or a former NWPP identity of the
individual;
(ii) there is a risk that disclosure of the information will
reveal that the individual is a participant; and
(f) if the person disclosing the information is a person other than
a person referred to in subparagraph (a)(i), (ii) or (iv)—there
is a risk that disclosure of the information will adversely
affect the integrity of the NWPP.
Penalty: Imprisonment for 2 years.
Disclosure of information about individual undergoing assessment
as State participant
(2) A person commits an offence if:
(a) the person is:
(i) a Commonwealth officer; or
(ii) a Commonwealth participant; or
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(iii) a State participant; or
(iv) a Territory participant; or
(v) any other person; and
(b) the person discloses information about an individual; and
(c) the individual is undergoing assessment for inclusion in the
NWPP at the time the information is disclosed; and
(d) if the individual were included in the NWPP following that
assessment, the individual would be a State participant; and
(e) there is a risk that disclosure of the information will reveal
that the individual is undergoing such assessment; and
(f) if the person disclosing the information is a person other than
a person referred to in subparagraph (a)(i), (ii) or (iv)—there
is a risk that disclosure of the information will adversely
affect the integrity of the NWPP.
Penalty: Imprisonment for 2 years.
Disclosure of information that may compromise security of State
participant
(3) A person commits an offence if:
(a) the person is:
(i) a Commonwealth officer; or
(ii) a Commonwealth participant; or
(iii) a State participant; or
(iv) a Territory participant; or
(v) any other person; and
(b) the person discloses information about an individual; and
(c) the individual is a participant; and
(d) the individual is a State participant; and
(e) either or both of the following apply:
(i) the individual has a current NWPP identity at the time
the information is disclosed and the information is about
the original identity or a former NWPP identity of the
individual;
(ii) there is a risk that disclosure of the information will
reveal that the individual is a participant; and
(f) there is a risk that disclosure of the information will
compromise the security of the individual; and
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(g) if the person disclosing the information is a person other than
a person referred to in subparagraph (a)(i), (ii) or (iv)—there
is a risk that the disclosure of the information will adversely
affect the integrity of the NWPP.
Penalty: Imprisonment for 10 years.
Disclosure of information that may compromise security of
individual undergoing assessment as State participant
(4) A person commits an offence if:
(a) the person is:
(i) a Commonwealth officer; or
(ii) a Commonwealth participant; or
(iii) a State participant; or
(iv) a Territory participant; or
(v) any other person; and
(b) the person discloses information about an individual; and
(c) the individual is undergoing assessment for inclusion in the
NWPP at the time the information is disclosed; and
(d) if the individual were included in the NWPP following that
assessment, the individual would be a State participant; and
(e) there is a risk that disclosure of the information will reveal
that the individual is undergoing such assessment; and
(f) there is a risk that disclosure of the information will
compromise the security of the individual; and
(g) if the person disclosing the information is a person other than
a person referred to in subparagraph (a)(i), (ii) or (iv)—there
is a risk that disclosure of the information will adversely
affect the integrity of the NWPP.
Penalty: Imprisonment for 10 years.
(5) Subsections (1), (2), (3) and (4) do not apply to a disclosure by a
person if:
(a) the person has been authorised by the Commissioner to make
the disclosure; or
(b) the disclosure is made for the purpose of making a complaint,
or providing information, to the Ombudsman under the
Ombudsman Act 1976; or
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(c) the disclosure is made 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; or
(d) the disclosure is made for the purpose of:
(i) giving information that raises an AFP conduct or
practices issue (within the meaning of the Australian
Federal Police Act 1979); or
(ii) investigating or resolving an AFP conduct or practices
issue under Part V of that Act.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5) (see subsection 13.3(3) of the Criminal Code).
(6) Absolute liability applies to paragraphs (1)(d), (2)(d), (3)(d) and
(4)(d).
Note: For absolute liability, see section 6.2 of the Criminal Code.
(7) To avoid doubt, a person may be convicted of an offence against
subsection (1), (2), (3) or (4) because of a risk that a disclosure will
have a particular effect even if the disclosure does not actually
have that effect.
22B Offences relating to disclosure of information about the NWPP
Disclosures by participants and persons undergoing assessment
(1) A person commits an offence if:
(a) the person is, or is undergoing or has undergone assessment
for inclusion in the NWPP as, one of the following:
(i) a Commonwealth participant;
(ii) a Territory participant;
(iii) a State participant; and
(b) the person discloses any of the following:
(i) the fact that he or she is such a participant, or is
undergoing or has undergone such assessment;
(ii) information about the way in which the NWPP operates;
(iii) information about the Commissioner, a Deputy
Commissioner, any AFP employee or any special
member of the Australian Federal Police who is or has
been involved in the NWPP;
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(iv) the fact that he or she has signed a memorandum of
understanding;
(v) any details of a memorandum of understanding that he
or she has signed.
Penalty: Imprisonment for 5 years.
Disclosures by other persons
(2) A person (other than a person referred to in paragraph (1)(a))
commits an offence if:
(a) the person discloses information; and
(b) the information is either or both of the following:
(i) information about the way in which the NWPP operates;
(ii) information about the Commissioner, a Deputy
Commissioner, any AFP employee or any special
member of the Australian Federal Police who is or has
been involved in the NWPP; and
(c) there is a risk that disclosure of the information will do either
or both of the following:
(i) adversely affect the integrity of the NWPP;
(ii) compromise the security of the Commissioner, a Deputy
Commissioner, or an AFP employee or special member
of the Australian Federal Police who is or has been
involved in the NWPP.
Penalty: Imprisonment for 5 years.
(3) Subsections (1) and (2) do not apply to a disclosure by a person if:
(a) the person has been authorised by the Commissioner to make
the disclosure; or
(b) the disclosure is made for the purpose of making a complaint,
or providing information, to the Ombudsman under the
Ombudsman Act 1976; or
(c) the disclosure is made 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; or
(d) the disclosure is made for the purpose of:
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(i) giving information that raises an AFP conduct or
practices issue (within the meaning of the Australian
Federal Police Act 1979); or
(ii) investigating or resolving an AFP conduct or practices
issue under Part V of that Act.
Note: A defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) To avoid doubt, a person may be convicted of an offence against
subsection (2) because of a risk that a disclosure will have a
particular effect even if the disclosure does not actually have that
effect.
22C Disclosures to courts, etc.
(1) To avoid doubt, sections 22, 22A and 22B apply to a disclosure of
information to:
(a) a court or tribunal; or
(b) a Royal Commission of the Commonwealth, a State or a
Territory or any other commission of inquiry.
(2) The application of subsection (1) to the disclosure of information
as mentioned in that subsection does not affect the operation of
subsection 26(3).
53 Subsection 25(1)
Omit “subsection (3)”, substitute “subsections (3) and (4)”.
54 Subsection 25(3)
Omit “and 27”, substitute “, 27 and 27A”.
55 At the end of section 25
Add:
(4) The Commissioner’s powers and functions under subsections 13(5)
and (7) may only be delegated to a Deputy Commissioner, an
Assistant Commissioner, or a person occupying an equivalent or
higher rank in the Australian Federal Police.
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56 Paragraph 26(1)(a)
Omit “a Royal Commission or an approved authority”, substitute “a
Royal Commission of the Commonwealth, a State or a Territory or any
other commission of inquiry”.
57 Paragraphs 26(1)(a) and (b)
After “duties”, insert “, or the exercise of powers,”.
58 After paragraph 26(1)(b)
Insert:
; or (c) to divulge or communicate to or before such a body
information, if:
(i) the information is about the identity of, or disclosure of
the information is such as to reveal the identity of, an
AFP employee or special member of the Australian
Federal Police who is involved in the operation of the
NWPP; and
(ii) the person has the information as a result of the
performance of functions or duties, or the exercise of
powers, under this Act;
59 Paragraph 26(2)(a)
Omit “a Royal Commission or an approved authority”, substitute “a
Royal Commission of the Commonwealth, a State or a Territory or any
other commission of inquiry”.
60 After paragraph 26(2)(b)
Insert:
; or (c) to divulge or communicate to or before such a body
information, if:
(i) the information is about the identity of, or disclosure of
the information is such as to reveal the identity of, an
AFP employee or special member of the Australian
Federal Police who is involved in the operation of the
NWPP; and
(ii) the person has the information as a result of the
performance of functions or duties, or the exercise of
powers, in relation to this Act;
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61 Subsection 26(3)
After “Commonwealth”, insert “, a State or a Territory”.
62 Subsection 26(5)
Omit “or a former participant”.
63 Subsection 26(5)
Omit “or former participant”.
64 Subsection 27(1)
Repeal the subsection, substitute:
(1) If:
(a) a participant is to be a witness, under the participant’s current
NWPP identity, in a criminal proceeding; and
(b) the participant has a criminal record under his or her original
identity or any former NWPP identity;
the participant must notify the Commissioner that the participant is
to be a witness in the proceeding.
65 Subsection 27(2)
Omit “or former participant”.
66 After section 27
Insert:
27A Requirement where participant involved in civil proceedings
(1) If a participant is to be involved, under the participant’s current
NWPP identity, in a civil proceeding in which his or her identity is
in issue, the participant must notify the Commissioner that the
participant is involved in the proceeding.
(2) After being notified under subsection (1), the Commissioner may
take any action he or she considers appropriate in the
circumstances.
(3) In this section:
civil proceeding means any proceeding in a court, a tribunal or a
Royal Commission of the Commonwealth, a State or a Territory or
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any other commission of inquiry, other than a criminal proceeding,
and, to avoid doubt, each of the following is part of a civil
proceeding:
(a) any proceeding on an ex parte application (including an
application made before pleadings are filed in a court);
(b) the discovery, exchange, production, inspection or disclosure
of intended evidence, documents and reports of persons
intended to be called by a party to give evidence;
(c) an appeal proceeding;
(d) any interlocutory or other proceeding prescribed by
regulations for the purposes of this paragraph.
67 Section 28
Repeal the section, substitute:
28 Identity of participant not to be disclosed in court proceedings
etc.
(1) This section applies if one of more of the following matters is in
issue, or may be disclosed, in any proceedings before a court, a
tribunal, or a Royal Commission of the Commonwealth, a State or
a Territory or any other commission of inquiry:
(a) the original identity or a former NWPP identity of:
(i) a Commonwealth participant; or
(ii) a State participant; or
(iii) a Territory participant;
(b) the fact that a person is such a participant;
(c) the fact that a person has undergone or is undergoing
assessment for inclusion in the NWPP as such a participant.
(2) The court, tribunal or commission:
(a) must, unless it considers that it is not in the interests of
justice to do so, hold in private that part of the proceedings
that relates to the matter referred to in paragraph (1)(a), (b) or
(c); and
(b) must make such orders relating to the suppression of
publication of evidence given before it as, in its opinion, will
ensure that the matter referred to in paragraph (1)(a), (b) or
(c) is not made public; and
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(c) must, unless it considers that it is not in the interests of
justice to do so, make such other orders as it considers
appropriate to ensure that neither of the following is made
public:
(i) the matter referred to in paragraph (1)(a), (b) or (c);
(ii) information that may compromise the security of a
person referred to in any of those paragraphs.
(3) To avoid doubt, paragraph (2)(b) does not prevent the taking of a
transcript of court proceedings, but the court may make an order
for how the transcript is to be dealt with, including an order
suppressing its publication.
28A Offence of contravening an order under section 28
(1) A person commits an offence if:
(a) an order is in force under section 28; and
(b) the person engages in conduct; and
(c) the conduct contravenes the order.
Penalty: Imprisonment for 2 years.
(2) To avoid doubt, this section does not limit any other powers of the
body that made the order under section 28.
68 Subsection 30(1)
Omit “section 27”, substitute “sections 27 and 27A”.
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Application and saving provisions Part 2
Part 2—Application and saving provisions
69 Saving provision—declarations of complementary witness protection laws
(1) A declaration made under paragraph (b) of the definition of
complementary witness protection law in section 3 of the Witness
Protection Act 1994 before the commencement of this item is not, and
is taken never to have been, a legislative instrument.
(2) If the declaration was in force just before the commencement of this
item, the declaration has effect from that commencement, subject to
subitem (1), as if it had been made under section 3AA of that Act as
inserted by this Schedule.
70 Application—action in respect of former participants etc.
The Commissioner may take action under subsection 13(5) of the
Witness Protection Act 1994, as inserted by this Schedule, on or after
the commencement of this item, whether the former participant
concerned became a former participant before, on or after that
commencement.
71 Application—non-disclosure of former identity
(1) Section 16 of the Witness Protection Act 1994, as amended by this Act,
applies on and after the commencement of this item in relation to a
pre-commencement permission given to a participant for a particular
purpose as if it were a post-commencement permission given for the
participant not to disclose his or her original identity for that purpose.
(2) In this item:
post-commencement permission means a permission given under
paragraph 16(1)(b) of the Witness Protection Act 1994, as in force at the
commencement of this item.
pre-commencement permission means a permission given under
paragraph 16(1)(b) of the Witness Protection Act 1994 before the
commencement of this item.
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Schedule 4—Criminal organisation and association offences
Criminal Code Act 1995
1 At the end of Chapter 9 of the Criminal Code
Add:
Part 9.9—Criminal associations and organisations
Division 390—Criminal associations and organisations
Subdivision A—Definitions
390.1 Definitions
(1) In this Division:
ancillary offence, in relation to a State offence (the primary
offence), means:
(a) a State offence of conspiring to commit the primary offence;
or
(b) a State offence of aiding, abetting, counselling or procuring,
or being in any way knowingly concerned in, the commission
of the primary offence; or
(c) a State offence of attempting to commit the primary offence.
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:
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(a) the person’s spouse or de facto partner; or
(b) a parent, step-parent or grandparent of the person; or
(c) a child, stepchild or grandchild of the person; or
(d) a brother, sister, stepbrother or stepsister of the person; or
(e) a guardian or carer of the person.
Commonwealth place has the same meaning as in the
Commonwealth Places (Application of Laws) Act 1970.
constitutionally covered offence punishable by imprisonment for
at least 12 months means:
(a) any of the following offences that is punishable on
conviction by imprisonment for at least 12 months or for life:
(i) an offence against a law of the Commonwealth;
(ii) a State offence that has a federal aspect;
(iii) an offence against a law of a Territory; or
(b) a foreign offence that is constituted by conduct that, if
engaged in in Australia, would constitute an Australian
offence punishable on conviction by imprisonment for at
least 12 months or for life.
constitutionally covered offence punishable by imprisonment for
at least 3 years means:
(a) any of the following offences that is punishable on
conviction by imprisonment for at least 3 years or for life:
(i) an offence against a law of the Commonwealth;
(ii) a State offence that has a federal aspect;
(iii) an offence against a law of a Territory; or
(b) a foreign offence that is constituted by conduct that, if
engaged in in Australia, would constitute an Australian
offence punishable on conviction by imprisonment for at
least 3 years or for life.
de facto partner has the meaning given by the Acts Interpretation
Act 1901.
electronic communication means a communication of information:
(a) whether in the form of text; or
(b) whether in the form of data; or
(c) whether in the form of speech, music or other sounds; or
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(d) whether in the form of visual images (animated or
otherwise); or
(e) whether in any other form; or
(f) whether in any combination of forms;
by means of guided and/or unguided electromagnetic energy.
federal aspect has the meaning given by section 390.2.
foreign offence means an offence against a law of a foreign
country or part of a foreign country.
for the benefit of: an offence against any law is, or would if
committed be, for the benefit of an organisation if the offence
results or is likely to result in:
(a) the organisation receiving directly or indirectly a significant
benefit of any kind; or
(b) at least one member of the organisation receiving (in his or
her capacity as such a member) directly or indirectly a
significant benefit of any kind.
offence against any law means an Australian offence or a foreign
offence.
offence against any law punishable by imprisonment for at least
3 years means:
(a) an Australian offence punishable on conviction by
imprisonment for at least 3 years or for life; or
(b) a foreign offence punishable on conviction (however
described) by imprisonment for at least 3 years or for life or
by death.
parent: without limiting who is a parent of a person for the
purposes of this Division, someone is the parent of a person if the
person is his or her child because of the definition of child in this
subsection.
State offence means an offence against a law of a State.
stepchild: without limiting who is a stepchild of a person for the
purposes of this Division, someone is the stepchild of a person if
he or she would be the person’s stepchild except that the person is
not legally married to the person’s de facto partner.
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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.
(2) For the purposes of the definition of close family member in
subsection (1), if one person is the child of another person because
of the definition of child in that subsection, relationships traced to
or through the person are to be determined on the basis that the
person is the child of the other person.
(3) To avoid doubt:
(a) a reference in this Division to an organisation is a reference
to an organisation however it is organised; and
(b) a reference in this Division to a person includes a reference to
a person outside Australia.
390.2 State offences that have a federal aspect
Object
(1) The object of this section is to identify State offences that have a
federal aspect because:
(a) they potentially fall within Commonwealth legislative power
because of the elements of the State offence; or
(b) they potentially fall within Commonwealth legislative power
because of the circumstances in which the State offence is
committed (whether or not those circumstances are expressed
to be acts or omissions involved in committing the offence).
State offences that have a federal aspect
(2) For the purposes of this Act, a State offence has a federal aspect if,
and only if:
(a) both:
(i) the State offence is not an ancillary offence; and
(ii) assuming that the provision creating the State offence
had been enacted by the Parliament of the
Commonwealth instead of by the Parliament of the
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State—the provision would have been a valid law of the
Commonwealth; or
(b) both:
(i) the State offence is an ancillary offence that relates to a
particular primary offence; and
(ii) assuming that the provision creating the primary offence
had been enacted by the Parliament of the
Commonwealth instead of by the Parliament of the
State—the provision would have been a valid law of the
Commonwealth; or
(c) assuming that the Parliament of the Commonwealth had
enacted a provision that created an offence penalising the
specific acts or omissions involved in committing the State
offence—that provision would have been a valid law of the
Commonwealth.
Specificity of acts or omissions
(3) For the purposes of paragraph (2)(c), the specificity of the acts or
omissions involved in committing a State offence is to be
determined having regard to the circumstances in which the
offence is committed (whether or not those circumstances are
expressed to be elements of the offence).
State offences covered by paragraph (2)(c)
(4) A State offence is taken to be covered by paragraph (2)(c) if the
conduct constituting the State offence:
(a) affects the interests of:
(i) the Commonwealth; or
(ii) an authority of the Commonwealth; or
(iii) a constitutional corporation; or
(b) was engaged in by a constitutional corporation; or
(c) was engaged in in a Commonwealth place; or
(d) involved the use of a postal service or other like service; or
(e) involved an electronic communication; or
(f) involved trade or commerce:
(i) between Australia and places outside Australia; or
(ii) among the States; or
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(iii) within a Territory, between a State and a Territory or
between 2 Territories; or
(g) involved:
(i) banking (other than State banking not extending beyond
the limits of the State concerned); or
(ii) insurance (other than State insurance not extending
beyond the limits of the State concerned); or
(h) relates to a matter outside Australia; or
(i) relates to a matter in respect of which an international
agreement to which Australia is a party imposes obligations
to which effect could be given by the creation of an offence
against the domestic laws of the parties to the agreement; or
(j) relates to a matter that affects the relations between Australia
and another country or countries or is otherwise a subject of
international concern.
(5) Subsection (4) does not limit paragraph (2)(c).
Subdivision B—Offences
390.3 Associating in support of serious organised criminal activity
(1) A person (the first person) commits an offence if:
(a) the first person associates on 2 or more occasions with
another person (the second person); and
(b) the second person engages, or proposes to engage, in conduct
(the second person’s conduct) that constitutes, or is part of
conduct constituting, an offence against any law; and
(c) the associations facilitate the engagement or proposed
engagement by the second person in the second person’s
conduct; and
(d) the offence against any law mentioned in paragraph (b)
involves 2 or more persons; and
(e) the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment
for at least 3 years.
Penalty: Imprisonment for 3 years.
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Repeat offence
(2) A person (the first person) commits an offence if:
(a) the first person has previously been convicted of an offence
against subsection (1); and
(b) the first person associates with another person (the second
person); and
(c) the second person engages, or proposes to engage, in conduct
(the second person’s conduct) that constitutes, or is part of
conduct constituting, an offence against any law; and
(d) the association facilitates the engagement or proposed
engagement by the second person in the second person’s
conduct; and
(e) the offence against any law mentioned in paragraph (c)
involves 2 or more persons; and
(f) the offence against any law mentioned in paragraph (c) is a
constitutionally covered offence punishable by imprisonment
for at least 3 years.
Penalty: Imprisonment for 3 years.
Knowledge fault element for paragraphs (1)(b) and (2)(c)
(3) The fault element for paragraphs (1)(b) and (2)(c) is knowledge (by
the first person).
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
(5) In a prosecution for an offence against subsection (1) or (2), it is
not necessary to prove the identity of any of the persons mentioned
in paragraph (1)(d) or (2)(e).
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Defence for certain kinds of associations
(6) This section does not apply to an association if:
(a) the association is with a close family member and relates
only to a matter that could reasonably be regarded (taking
into account the person’s cultural background) as a matter of
family or domestic concern; or
(b) the association is in a place being used for public religious
worship and takes place in the course of practising a religion;
or
(c) the association is only for the purpose of providing aid of a
humanitarian nature; or
(d) the association is only for the purpose of providing legal
advice or legal representation in connection with judicial or
administrative proceedings under a law of the
Commonwealth, a State, a Territory or a foreign country; or
(e) the association is reasonable in the circumstances.
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
(7) A person who is convicted of an offence against subsection (1) or
(2) in relation to the person’s conduct on 2 or more occasions is not
liable to be punished for an offence against subsection (1) or (2) for
other conduct of the person that takes place:
(a) at the same time as that conduct; or
(b) within 7 days before or after any of those occasions.
(8) This section does not apply to the extent (if any) that it would
infringe any constitutional doctrine of implied freedom of political
communication.
390.4 Supporting a criminal organisation
(1) A person commits an offence if:
(a) the person provides material support or resources to an
organisation or a member of an organisation; and
(b) either:
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(i) the provision of the support or resources aids; or
(ii) there is a risk that the provision of the support or
resources will aid;
the organisation to engage in conduct constituting an offence
against any law; and
(c) the organisation consists of 2 or more persons; and
(d) the organisation’s aims or activities include facilitating the
engagement in conduct, or engaging in conduct, constituting
an offence against any law that is, or would if committed be,
for the benefit of the organisation; and
(e) the offence against any law mentioned in paragraph (d) is an
offence against any law punishable by imprisonment for at
least 3 years; and
(f) the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment
for at least 12 months.
Penalty: Imprisonment for 5 years.
(2) Absolute liability applies to paragraphs (1)(e) and (f).
Note: For absolute liability, see section 6.2.
(3) To avoid doubt, a person may be convicted of an offence against
subsection (1) because of a risk that the provision of the support or
resources will aid the organisation as described in paragraph (1)(b)
even if the provision of the support or resources does not actually
aid the organisation in that way.
390.5 Committing an offence for the benefit of, or at the direction of,
a criminal organisation
Offence committed for the benefit of an organisation
(1) A person commits an offence if:
(a) the person commits an offence against any law (the
underlying offence); and
(b) the underlying offence is for the benefit of an organisation;
and
(c) the organisation consists of 2 or more persons; and
(d) the organisation’s aims or activities include facilitating the
engagement in conduct, or engaging in conduct, constituting
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an offence against any law that is, or would if committed be,
for the benefit of the organisation; and
(e) the offence against any law mentioned in paragraph (d) is an
offence against any law punishable by imprisonment for at
least 3 years; and
(f) the underlying offence is a constitutionally covered offence
punishable by imprisonment for at least 12 months.
Penalty: Imprisonment for 7 years.
Offence committed at the direction of an organisation
(2) A person commits an offence if:
(a) the person commits an offence against any law (the
underlying offence); and
(b) the person engaged in the conduct constituting the underlying
offence at the direction of an organisation or of a member of
an organisation; and
(c) the organisation consists of 2 or more persons; and
(d) the organisation’s aims or activities include facilitating the
engagement in conduct, or engaging in conduct, constituting
an offence against any law that is, or would if committed be,
for the benefit of the organisation; and
(e) the offence against any law mentioned in paragraph (d) is an
offence against any law punishable by imprisonment for at
least 3 years; and
(f) the underlying offence is a constitutionally covered offence
punishable by imprisonment for at least 12 months.
Penalty: Imprisonment for 7 years.
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.
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Avoiding multiplicity of proceedings and punishments
(5) To avoid doubt, the person may be convicted of an offence against
subsection (1) or (2) even if the person has not:
(a) been convicted of the underlying offence; or
(b) been the subject of an order under section 19B (Discharge of
offenders without proceeding to conviction) of the Crimes
Act 1914, or a corresponding law of a State, Territory or
foreign country, relating to the underlying offence.
(6) If a person has been convicted or acquitted of a foreign offence in
respect of conduct, the person cannot be convicted of an offence
against this section in respect of that conduct.
Note: If the underlying offence is an Australian offence, section 4C of the Crimes Act 1914 prevents the person from being punished twice under Australian law (once under this section and once under the Commonwealth, State or Territory law creating the underlying offence) for the act or omission constituting the underlying offence.
Likely benefits
(7) To avoid doubt, the person may be convicted of an offence against
subsection (1) because the underlying offence is likely to result in
the organisation or at least one member receiving benefits as
described in the definition of for the benefit of in subsection
390.1(1), even if the organisation or member does not actually
receive such a benefit.
390.6 Directing activities of a criminal organisation
(1) A person commits an offence if:
(a) the person directs one or more activities of an organisation;
and
(b) either:
(i) the activity or activities directed aid; or
(ii) there is a risk that the activity or activities directed will
aid;
the organisation to engage in conduct constituting an offence
against any law; and
(c) the organisation consists of 2 or more persons; and
(d) the organisation’s aims or activities include facilitating the
engagement in conduct, or engaging in conduct, constituting
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an offence against any law that is, or would if committed be,
for the benefit of the organisation; and
(e) the offence against any law mentioned in paragraph (d) is an
offence against any law punishable by imprisonment for at
least 3 years; and
(f) the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment
for at least 12 months.
Penalty: Imprisonment for 10 years.
(2) A person commits an offence if:
(a) the person directs one or more activities of an organisation;
and
(b) the activity or activities directed constitute an offence against
any law; and
(c) the organisation consists of 2 or more persons; and
(d) the organisation’s aims or activities include facilitating the
engagement in conduct, or engaging in conduct, constituting
an offence against any law that is, or would if committed be,
for the benefit of the organisation; and
(e) the offence against any law mentioned in paragraph (d) is an
offence against any law punishable by imprisonment for at
least 3 years; and
(f) the offence against any law mentioned in paragraph (b) is a
constitutionally covered offence punishable by imprisonment
for at least 12 months.
Penalty: Imprisonment for 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.
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390.7 Extended geographical jurisdiction—category C
Section 15.3 (extended geographical jurisdiction—category C)
applies to an offence against this Division.
2 Dictionary in the Criminal Code
Insert:
federal aspect is defined in section 390.2.
3 Application of sections 390.3, 390.4, 390.5 and 390.6 of the Criminal Code
Sections 390.3, 390.4, 390.5 and 390.6 of the Criminal Code apply if all
the relevant conduct was engaged in after the commencement of those
sections.
Telecommunications (Interception and Access) Act 1979
4 After subsection 5D(8)
Insert:
Offences relating to criminal associations and organisations
(8A) An offence is also a serious offence if it is an offence against
Division 390 of the Criminal Code.
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Criminal Code Act 1995 Part 1
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:
(a) receives, possesses, conceals or disposes of money or other
property;
(b) imports money or other property into Australia;
(c) exports money or other property from Australia;
(d) engages in a banking transaction relating to money or other
property.
400.2A Application of offences relating to possible instruments of
crime
(1) This section affects the application of sections 400.3, 400.4, 400.5,
400.6, 400.7 and 400.8 so far as they relate to a person dealing
with money or other property that:
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(a) is intended by the person to become an instrument of crime;
or
(b) is at risk of becoming an instrument of crime.
(2) Those sections apply if at least one of the circumstances described
in subsections (3) and (4) exists.
(3) One circumstance is that money or other property is intended to
become, or at risk of becoming, an instrument of crime in relation
to an offence that is:
(a) a Commonwealth indictable offence; or
(b) a foreign indictable offence; or
(c) a State indictable offence that has a federal aspect; or
(d) an Australian Capital Territory indictable offence; or
(e) a Northern Territory indictable offence.
Note: The prosecution need not prove the existence of any fault element for the nature of the offence: see section 400.11.
(4) Another circumstance is that the dealing with the money or other
property occurs:
(a) in the course of or for the purposes of importation of goods
into, or exportation of goods from, Australia; or
(b) by means of a communication using a postal, telegraphic,
telephonic or other like service within the meaning of
paragraph 51(v) of the Constitution; or
(c) in the course of banking (other than State banking that does
not extend beyond the limits of the State concerned); or
(d) outside Australia.
(5) Absolute liability applies to subsections (3) and (4).
Note: For absolute liability, see section 6.2.
5 Subsection 400.3(4) of the Criminal Code (note)
Omit “Note”, substitute “Note 1”.
6 At the end of subsection 400.3(4) of the Criminal Code
Add:
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
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(b) is at risk of becoming an instrument of crime.
7 Subsection 400.4(4) of the Criminal Code (note)
Omit “Note”, substitute “Note 1”.
8 At the end of subsection 400.4(4) of the Criminal Code
Add:
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
9 Subsection 400.5(4) of the Criminal Code (note)
Omit “Note”, substitute “Note 1”.
10 At the end of subsection 400.5(4) of the Criminal Code
Add:
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
11 Subsection 400.6(4) of the Criminal Code (note)
Omit “Note”, substitute “Note 1”.
12 At the end of subsection 400.6(4) of the Criminal Code
Add:
Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
13 Subsection 400.7(4) of the Criminal Code (note)
Omit “Note”, substitute “Note 1”.
14 At the end of subsection 400.7(4) of the Criminal Code
Add:
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Note 2: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
15 At the end of section 400.8 of the Criminal Code
Add:
Note: Section 400.2A affects the application of this section so far as it relates to a person dealing with money or other property that:
(a) is intended by the person to become an instrument of crime; or
(b) is at risk of becoming an instrument of crime.
16 Subsection 400.9(1) of the Criminal Code
Repeal the subsection, substitute:
(1) A person commits an offence if:
(a) the person deals with money or other property; and
(b) it is reasonable to suspect that the money or property is
proceeds of crime; and
(c) at the time of the dealing, the value of the money and other
property is $100,000 or more.
Penalty: Imprisonment for 3 years, or 180 penalty units, or both.
(1A) A person commits an offence if:
(a) the person deals with money or other property; and
(b) it is reasonable to suspect that the money or property is
proceeds of crime; and
(c) at the time of the dealing, the value of the money and other
property is less than $100,000.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
Note: The heading to section 400.9 is altered by omitting “Possession etc. of” and substituting “Dealing with”.
17 Subsection 400.9(2) of the Criminal Code
After “(1)(b)”, insert “or (1A)(b)”.
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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:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an
Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly
outside Australia (but not on board an Australian aircraft or
an Australian ship) and the money or other property:
(i) is proceeds of crime; or
(ii) is intended to become an instrument of crime; or
(iii) is at risk of becoming an instrument of crime;
in relation to a Commonwealth indictable offence, a State
indictable offence, an Australian Capital Territory indictable
offence or a Northern Territory indictable offence; or
(c) the conduct constituting the alleged offence occurs wholly
outside Australia and:
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(i) at the time of the alleged offence, the person is an
Australian citizen; or
(ii) at the time of the alleged offence, the person is a
resident of Australia; or
(iii) at the time of the alleged offence, the person is a body
corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; or
(d) all of the following conditions are satisfied:
(i) the alleged offence is an ancillary offence;
(ii) the conduct constituting the alleged offence occurs
wholly outside Australia;
(iii) the conduct constituting the primary offence to which
the ancillary offence relates occurs, or is intended by the
person to occur, wholly or partly in Australia or wholly
or partly on board an Australian aircraft or an Australian
ship.
Note: The expression offence is given an extended meaning by subsection 11.2(1), section 11.3 and subsection 11.6(1).
Defence—primary offence
(2) A person is not guilty of an offence against this Division if:
(a) the alleged offence is a primary offence; and
(b) the conduct constituting the alleged offence occurs wholly in
a foreign country, but not on board an Australian aircraft or
an Australian ship; and
(c) paragraph (1)(b) of this section does not apply; and
(d) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; and
(e) there is not in force in:
(i) the foreign country where the conduct constituting the
alleged offence occurs; or
(ii) the part of the foreign country where the conduct
constituting the alleged offence occurs;
a law of that foreign country, or a law of that part of that
foreign country, that creates an offence that corresponds to
the offence against this Division.
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Note: A defendant bears an evidential burden in relation to the matters in subsection (2). See subsection 13.3(3).
(3) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (2) of this section is taken to be an exception
provided by the law creating the offence.
Defence—ancillary offence
(4) A person is not guilty of an offence against this Division if:
(a) the alleged offence is an ancillary offence; and
(b) the conduct constituting the alleged offence occurs wholly in
a foreign country, but not on board an Australian aircraft or
an Australian ship; and
(c) the conduct constituting the primary offence to which the
ancillary offence relates occurs, or is intended by the person
to occur, wholly in a foreign country, but not on board an
Australian aircraft or an Australian ship; and
(d) paragraph (1)(b) of this section does not apply (and would
not apply if the conduct described in paragraph (c) of this
subsection occurred as intended); and
(e) the person is neither:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the
Commonwealth or of a State or Territory; and
(f) there is not in force in:
(i) the foreign country where the conduct constituting the
primary offence to which the ancillary offence relates
occurs, or is intended by the person to occur; or
(ii) the part of the foreign country where the conduct
constituting the primary offence to which the ancillary
offence relates or is intended by the person to occur;
a law of that foreign country, or a law of that part of that
foreign country, that creates an offence that corresponds to
the primary offence.
Note: A defendant bears an evidential burden in relation to the matters in subsection (4). See subsection 13.3(3).
(5) For the purposes of the application of subsection 13.3(3) to an
offence, subsection (4) of this section is taken to be an exception
provided by the law creating the offence.
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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.
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25 Section 5
Insert:
non-financier means a person who is not:
(a) an ADI; or
(b) a bank; or
(c) a building society; or
(d) a credit union; or
(e) a person specified in the AML/CTF Rules.
26 Section 5 (definition of stored value card)
Repeal the definition, substitute:
stored value card does not include a debit card or credit card but
includes a portable device (other than a debit card or credit card)
that:
(a) is capable of:
(i) storing monetary value in a form other than physical
currency; or
(ii) being used to gain access to monetary value stored in
such a form; and
(b) is of a kind prescribed by the regulations.
27 Subsection 6(2) (table items 21, 22, 23 and 24)
Omit “stored on” (wherever occurring), substitute “stored in connection
with”.
28 Subsection 6(2) (table items 31 and 32)
Repeal the items, substitute:
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in the capacity of a non-financier
carrying on a business of giving
effect to remittance arrangements,
accepting an instruction from a
transferor entity for the transfer of
money or property under a
designated remittance arrangement
the transferor entity
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:
(i) a person who accepts an instruction from the transferor
entity for the transfer of money or property under the
remittance arrangement;
(ii) a person who makes money or property available, or
arranges for it to be made available, to an ultimate
transferee entity as a result of a transfer under the
remittance arrangement; and
31 Transitional provisions for AML/CTF Rules
(1) This item applies if, immediately before the commencement of this
Part, a provision of the AML/CTF Rules specified a person for the
purposes of subparagraph 10(1)(a)(v) or (b)(v) of the Anti-Money
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Laundering and Counter-Terrorism Financing Act 2006 (as in force
immediately before that commencement).
(2) The provision has effect as if it specified the person for the purposes of
paragraph (e) of the definition of non-financier in section 5 of that Act
as amended by this Part.
(3) This item does not prevent the amendment or repeal of those rules so as
to affect the provision.
32 Paragraph 10(3)(a)
Omit “money or property is accepted so as to enable its transfer under
the arrangement”, substitute “an instruction is accepted for the transfer
of money or property under the arrangement”.
33 Section 46 (table items 3 and 4)
Omit “person in Australia”, substitute “non-financier in Australia”.
34 Subsection 59(1)
Omit “as soon as possible”, substitute “immediately”.
35 Subsection 123(3)
Repeal the subsection, substitute:
(3) If a reporting entity is required under subsection 49(1) to give
information, or produce a document, to a person, the reporting
entity must not disclose to anyone else:
(a) that the reporting entity is or has been required to do so; or
(b) that the information has been given or the document has been
produced; or
(c) any other information from which the person to whom the
information is disclosed could reasonably be expected to
infer that:
(i) the reporting entity had been required to give the
first-mentioned information or produce the document;
or
(ii) the first-mentioned information had been given; or
(iii) the document had been produced.
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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.
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Unfitness to plead Schedule 6
Schedule 6—Unfitness to plead
Crimes Act 1914
1 At the end of Division 6 of Part IB
Add:
20BI Appeals against some Victorian jury findings of unfitness to be
tried
(1) This section applies if:
(a) in proceedings for a federal offence in the Trial Division of
the Supreme Court of Victoria or in the County Court of
Victoria, a question arises whether the accused is fit to stand
trial; and
(b) a jury finds that the accused is unfit.
Right to appeal
(2) The accused may appeal to the Court of Appeal of Victoria against
the finding:
(a) on a ground involving only one or more questions of law
alone; or
(b) on a ground involving one or more questions of fact alone, or
one or more questions of mixed law and fact, if the judge
before whom the accused came for trial certifies the ground
is fit for appeal; or
(c) on any ground if the Court of Appeal gives leave.
Decision on appeal
(3) The Court of Appeal must allow the appeal if the court thinks that:
(a) the finding should be set aside because it is unreasonable or
cannot be supported having regard to the evidence; or
(b) the order of the Supreme Court or County Court giving effect
to the finding should be set aside because of a wrong
decision on a question of law; or
(c) there was a miscarriage of justice.
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(4) Otherwise, the Court of Appeal must dismiss the appeal.
(5) Despite subsection (3), the Court of Appeal may dismiss the appeal
if the Court of Appeal thinks that no substantial miscarriage of
justice has occurred.
Consequences if appeal allowed
(6) If the Court of Appeal allows the appeal:
(a) the accused may be tried for the federal offence; and
(b) the Court of Appeal may make orders for the custody or bail
of the accused.
Rules of court
(7) Rules of court for the Court of Appeal of Victoria may make
provision relating to appeals under subsection (2) and proceedings
relating to orders under paragraph (6)(b).
Relationship with the rest of this Division
(8) This Division has effect subject to this section.
2 Application of section 20BI of the Crimes Act 1914
Section 20BI of the Crimes Act 1914 (as amended by this Schedule)
applies to findings made before, on or after the commencement of that
section.
3 Transitional provision
(1) If appeal proceedings were started under section 570C of the Crimes
Act 1958 of Victoria before the repeal of that section but those
proceedings (including any proceedings for orders under subsection
570C(2) of that Act following the allowing of the appeal) were not
completed before that repeal:
(a) section 20BI of the Crimes Act 1914 does not apply in
relation to the finding that was the subject of the appeal
proceedings, despite item 2; and
(b) the following provisions of the Crimes Act 1958 of Victoria,
as in force immediately before their repeal by the Criminal
Procedure Act 2009 of Victoria, continue to apply (as laws of
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the Commonwealth) in relation to the finding despite that
repeal:
(i) section 570C;
(ii) section 570A as applied by section 570C;
(iii) other provisions so far as they relate to section 570C or
section 570A as applied by section 570C.
Note 1: Before their repeal those provisions applied because of section 68 of the Judiciary Act 1903.
Note 2: Section 570C of the Crimes Act 1958 of Victoria provided for appeals to the Court of Appeal of Victoria from a finding by a jury in proceedings in the Trial Division of the Supreme Court of Victoria or in the County Court of Victoria that the accused was not fit to stand trial.
Note 3: Section 570C of the Crimes Act 1958 of Victoria provided for appeals by applying section 570A of that Act with modifications. Other provisions of that Act (such as section 570D and Division 3 of Part VI) related to appeals to the Court of Appeal (including appeals under section 570C of that Act).
(2) An instrument in force for the purposes of any of those provisions
immediately before the repeal described in paragraph (1)(b) of the
provision continues in force (despite that repeal) for the purposes of that
provision as it continues to apply because of that paragraph.
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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.
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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:
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(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:
(i) refuses or fails to take an oath or affirmation when
required to do so under section 28; or
(ii) refuses or fails to answer a question that he or she is
required to answer by the examiner; or
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(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
(b) is a legal practitioner who is required to answer a question or
produce a document at an examination before an examiner,
and both of the following apply:
(i) the answer to the question would disclose, or the
document contains, a privileged communication made
by or to the legal practitioner in his or her capacity as a
legal practitioner;
(ii) he or she refuses to comply with the requirement and
does not, when required by the examiner, give the
examiner the name and address of the person to whom
or by whom the communication was made; or
(c) gives evidence at an examination before an examiner that he
or she knows is false or misleading in a material particular;
or
(d) obstructs or hinders an examiner in the performance of his or
her functions as an examiner; or
(e) disrupts an examination before an examiner; or
(f) threatens a person present at an examination before an
examiner.
34B Federal Court or Supreme Court to deal with contempt
(1) If an examiner is of the opinion that, during an examination before
the examiner, a person is in contempt of the ACC, the examiner
may apply to either of the following courts for the person to be
dealt with in relation to the contempt:
(a) the Federal Court;
(b) the Supreme Court of the State or Territory in which the
examination to which the contempt relates is being
conducted.
(2) Before making the application, the examiner must inform the
person that the examiner proposes to make the application.
(3) The application must be accompanied by a certificate that states:
(a) the grounds for making the application; and
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(b) evidence in support of the application.
(4) A copy of the certificate must be given to the person before, or at
the same time as, the application is made.
(5) If, after:
(a) considering the matters specified in the certificate; and
(b) hearing or receiving any evidence or statements by or in
support of the ACC; and
(c) hearing or receiving any evidence or statements by or in
support of the person;
the Court to which the application was made finds that the person
was in contempt of the ACC, the Court may deal with the person as
if the acts or omissions involved constituted a contempt of that
Court.
(6) For the purposes of determining whether a person is in contempt of
the ACC under subsection (1), Chapter 2 of the Criminal Code
applies as if:
(a) contempt of the ACC were an offence; and
(b) references to a person being criminally responsible for an
offence were references to a person being responsible for
contempt of the ACC.
34C Conduct of contempt proceedings
(1) This section applies if an application for a person to be dealt with
in relation to a contempt of the ACC is made to the Federal Court
or to the Supreme Court of a State or Territory under section 34B.
(2) Proceedings in relation to the application are, subject to this Act, to
be instituted, carried on, heard and determined in accordance with
the laws (including any Rules of Court) that apply in relation to the
punishment of a contempt of the Court to which the application
was made.
(3) In proceedings in relation to the application, a certificate under
subsection 34B(3) is prima facie evidence of the matters specified
in the certificate.
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34D Person in contempt may be detained
(1) If an examiner proposes to make an application under subsection
34B(1) in respect of a person, he or she may, during the hearing
concerned, direct a constable to detain the person for the purpose
of bringing the person before the Court to which the application
was made for the hearing of the application.
(2) If the person is detained under subsection (1):
(a) the examiner must apply to the Court as soon as practicable
under subsection 34B(1) in respect of the person; and
(b) the person must, subject to subsection (3) of this section, be
brought before the Court as soon as practicable.
(3) The Court may:
(a) direct that the person be released from detention on condition
that he or she will appear before the Court in relation to the
application; or
(b) order that the person continue to be detained until the
application is determined.
(4) The Court may also impose any other condition on the release, for
example:
(a) that the person surrenders his or her passport; or
(b) that the person gives an undertaking as to his or her living
arrangements; or
(c) that the person reports as required to a law enforcement
agency.
(5) The Court may at any time vary or revoke a condition imposed
under subsection (4).
34E Examiner may withdraw contempt application
(1) An examiner may at any time withdraw an application in relation
to a person under subsection 34B(1).
(2) If:
(a) the examiner does so; and
(b) the person is in detention under section 34D;
the person must be released from detention immediately.
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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:
(a) an application is made to the Federal Court or a Supreme
Court under subsection 34B(1) in respect of an act or
omission by a person; and
(b) the person is dealt with by the Court under that section in
respect of the act or omission;
the person is not liable to be prosecuted for an offence in respect of
that act or omission.
(3) If a person is prosecuted for an offence in respect of an act or
omission referred to in subsection 34B(1), an application must not
be made under subsection 34B(1) in respect of that act or omission.
22 Section 61A
Repeal the section, substitute:
61A Review of operation of Act
(1) The Minister must cause an independent review to be undertaken
of:
(a) the operation of this Act during the 5 year period beginning
at the commencement of Schedule 7 to the Crimes
Legislation Amendment (Serious and Organised Crime) Act
(No. 2) 2010; and
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(b) the operation of this Act during each subsequent 5 year
period.
(2) A review under subsection (1) must be undertaken as soon as
practicable after the end of the 5 year period to which the review is
to relate.
(3) If, before the Minister undertakes a review of the operation of this
Act in relation to a particular 5 year period referred to in
subsection (1), a committee of one or both Houses of the
Parliament starts such a review, the Minister need not undertake
such a review.
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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
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Application provisions Part 3
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.
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Schedule 8 Penalties for bribery
Schedule 8—Penalties for bribery
Criminal Code Act 1995
1 Subsection 70.2(1) of the Criminal Code (penalty)
Repeal the penalty.
2 Subsection 70.2(1) of the Criminal Code (notes 1 and 2)
Repeal the notes, substitute:
Note: For defences see sections 70.3 and 70.4.
3 At the end of section 70.2 of the Criminal Code
Add:
Penalty for individual
(4) An offence against subsection (1) committed by an individual is
punishable on conviction by imprisonment for not more than 10
years, a fine not more than 10,000 penalty units, or both.
Penalty for body corporate
(5) An offence against subsection (1) committed by a body corporate
is punishable on conviction by a fine not more than the greatest of
the following:
(a) 100,000 penalty units;
(b) if the court can determine the value of the benefit that the
body corporate, and any body corporate related to the body
corporate, have obtained directly or indirectly and that is
reasonably attributable to the conduct constituting the
offence—3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10%
of the annual turnover of the body corporate during the
period (the turnover period) of 12 months ending at the end
of the month in which the conduct constituting the offence
occurred.
(6) For the purposes of this section, the annual turnover of a body
corporate, during the turnover period, is the sum of the values of all
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Penalties for bribery Schedule 8
the supplies that the body corporate, and any body corporate
related to the body corporate, have made, or are likely to make,
during that period, other than the following supplies:
(a) supplies made from any of those bodies corporate to any
other of those bodies corporate;
(b) supplies that are input taxed;
(c) supplies that are not for consideration (and are not taxable
supplies under section 72-5 of the A New Tax System (Goods
and Services Tax) Act 1999);
(d) supplies that are not made in connection with an enterprise
that the body corporate carries on.
(7) Expressions used in subsection (6) that are also used in the A New
Tax System (Goods and Services Tax) Act 1999 have the same
meaning in that subsection as they have in that Act.
(8) The question whether 2 bodies corporate are related to each other
is to be determined for the purposes of this section in the same way
as for the purposes of the Corporations Act 2001.
4 Subsection 141.1(1) of the Criminal Code (penalty)
Repeal the penalty.
5 Subsection 141.1(3) of the Criminal Code (penalty)
Repeal the penalty.
6 At the end of section 141.1
Add:
Penalty for individual
(5) An offence against subsection (1) or (3) committed by an
individual is punishable on conviction by imprisonment for not
more than 10 years, a fine not more than 10,000 penalty units, or
both.
Penalty for body corporate
(6) An offence against subsection (1) or (3) committed by a body
corporate is punishable on conviction by a fine not more than the
greatest of the following:
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(a) 100,000 penalty units;
(b) if the court can determine the value of the benefit that the
body corporate, and any body corporate related to the body
corporate, have obtained directly or indirectly and that is
reasonably attributable to the conduct constituting the
offence—3 times the value of that benefit;
(c) if the court cannot determine the value of that benefit—10%
of the annual turnover of the body corporate during the
period (the turnover period) of 12 months ending at the end
of the month in which the conduct constituting the offence
occurred.
(7) For the purposes of this section, the annual turnover of a body
corporate, during the turnover period, is the sum of the values of all
the supplies that the body corporate, and any body corporate
related to the body corporate, have made, or are likely to make,
during that period, other than the following supplies:
(a) supplies made from any of those bodies corporate to any
other of those bodies corporate;
(b) supplies that are input taxed;
(c) supplies that are not for consideration (and are not taxable
supplies under section 72-5 of the A New Tax System (Goods
and Services Tax) Act 1999);
(d) supplies that are not made in connection with an enterprise
that the body corporate carries on.
(8) Expressions used in subsection (7) that are also used in the A New
Tax System (Goods and Services Tax) Act 1999 have the same
meaning in that subsection as they have in that Act.
(9) The question whether 2 bodies corporate are related to each other
is to be determined for the purposes of this section in the same way
as for the purposes of the Corporations Act 2001.
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Drug importation Schedule 9
Schedule 9—Drug importation
Criminal Code Act 1995
1 Section 300.2 of the Criminal Code (definition of import)
Repeal the definition, substitute:
import, in relation to a substance, means import the substance into
Australia and includes:
(a) bring the substance into Australia; and
(b) deal with the substance in connection with its importation.
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Schedule 10 Amendments consequential on enactment of joint commission offence
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,”.
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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”.
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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:
(a) the person is taken to have been convicted of an ancillary
offence; and
(b) the offence that was committed because of that section is
taken to be the primary offence to which the ancillary offence
relates.
Historic Shipwrecks Act 1976
21 Subsection 3(1) (paragraph (b) of the definition of offence against this Act)
After “11.2”, insert “or 11.2A”.
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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”.
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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”.
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Schedule 11—References to repealed provisions of the Crimes Act 1914
Aircraft Noise Levy Collection Act 1995
1 Subsection 16(7) (paragraphs (a) and (b) of the definition of offence against this Act)
Repeal the paragraphs, substitute:
(a) section 6 of the Crimes Act 1914; or
(b) section 11.1, 11.4 or 11.5 of the Criminal Code;
Airports Act 1996
2 Subsection 225(6)
Omit “created by section 6, 7 or 7A or subsection 86(1) of the Crimes
Act 1914”, substitute “against section 6 of the Crimes Act 1914, or
against section 11.1, 11.4 or 11.5 of the Criminal Code,”.
Antarctic Marine Living Resources Conservation Act 1981
3 Subsection 3(3)
Omit “created by section 6, 7 or 7A of the Crimes Act 1914”, substitute
“against section 6 of the Crimes Act 1914, or against section 11.1 or
11.4 of the Criminal Code,”.
Antarctic Treaty (Environment Protection) Act 1980
4 Subsection 3(3)
Omit “created by section 6, 7, 7A or 86 of the Crimes Act 1914”,
substitute “against section 6 of the Crimes Act 1914, or against
section 11.1, 11.4 or 11.5 of the Criminal Code,”.
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Schedule 11 References to repealed provisions of the Crimes Act 1914
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:
(a) an offence against section 6 that relates to an offence against
a provision of this Part; and
(b) an offence against a provision of this Part that is taken to
have been committed because of section 11.2 or 11.2A of the
Criminal Code; and
(c) an offence against section 11.1, 11.4 or 11.5 of the Criminal
Code that relates to an offence against a provision of this
Part.
Defence Act 1903
7 Paragraph 108(b)
Omit “section 6, 7 or 7A or subsection 86(1) of the Crimes Act 1914”,
substitute “section 6 of the Crimes Act 1914, or against section 11.1,
11.4 or 11.5 of the Criminal Code,”.
Environment Protection (Sea Dumping) Act 1981
8 Subsection 4(2)
Omit “created by section 6, 7 or 7A of the Crimes Act 1914”, substitute
“against section 6 of the Crimes Act 1914, or against section 11.1 or
11.4 of the Criminal Code,”.
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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:
(i) against section 6 of the Crimes Act 1914; or
(ii) that is taken to have been committed because of
section 11.2 or 11.2A of the Criminal Code; or
(iii) against section 11.1, 11.4 or 11.5 of the Criminal Code;
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:
(i) against section 6 of the Crimes Act 1914; or
(ii) that is taken to have been committed because of
section 11.2 or 11.2A of the Criminal Code; or
(iii) against section 11.1, 11.4 or 11.5 of the Criminal Code;
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:
(a) against section 6 of the Crimes Act 1914; or
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(b) that is taken to have been committed because of section 11.2
or 11.2A of the Criminal Code; or
(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:
(i) section 6 of the Crimes Act 1914; or
(ii) section 11.1, 11.4 or 11.5 of the Criminal Code;
Offshore Minerals Act 1994
13 Paragraphs 378(7)(a) and (b)
Repeal the paragraphs, substitute:
(a) an offence:
(i) against section 6 of the Crimes Act 1914; or
(ii) that is taken to have been committed because of
section 11.2 or 11.2A of the Criminal Code; or
(iii) against section 11.1, 11.4 or 11.5 of the Criminal Code;
that relates to a provision of this Act is taken to be an offence
against a provision of this Act; and
(b) an offence:
(i) against section 6 of the Crimes Act 1914; or
(ii) that is taken to have been committed because of
section 11.2 or 11.2A of the Criminal Code; or
(iii) against section 11.1, 11.4 or 11.5 of the Criminal Code;
that relates to a provision of the regulations is taken to be an
offence against a provision of the regulations; and
Ozone Protection and Synthetic Greenhouse Gas
Management Act 1989
14 Paragraph 65(9)(b)
Repeal the paragraph, substitute:
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(b) an offence:
(i) against section 6 of the Crimes Act 1914; or
(ii) that is taken to have been committed because of
section 11.2 or 11.2A of the Criminal Code; or
(iii) against section 11.1, 11.4 or 11.5 of the Criminal Code;
being an offence that relates to the regulations.
Plant Breeder’s Rights Act 1994
15 Subsection 76(9)
Repeal the subsection, substitute:
(9) A reference in this section to an offence against section 74 or 75
includes a reference to an offence:
(a) against section 6 of the Crimes Act 1914; or
(b) that is taken to have been committed because of section 11.2
or 11.2A of the Criminal Code; or
(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:
(a) an offence against section 6 of the Crimes Act 1914 in
relation to an offence against this Act; and
(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal
Code, being an offence in relation to an offence against this
Act.
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Schedule 11 References to repealed provisions of the Crimes Act 1914
18 Paragraphs 32(2)(a) and (b)
Repeal the paragraphs, substitute:
(a) an offence against section 6 of the Crimes Act 1914 in
relation to an offence against a provision of this Act; and
(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal
Code, being an offence in relation to an offence against a
provision of this Act.
19 Paragraphs 33(5)(a) and (b)
Repeal the paragraphs, substitute:
(a) an offence against section 6 of the Crimes Act 1914 in
relation to an offence against a provision of that Part; and
(b) an offence against section 11.1, 11.4 or 11.5 of the Criminal
Code, being an offence in relation to an offence against a
provision of that Part.
Taxation Administration Act 1953
20 Subsection 8J(6)
Repeal the subsection, substitute:
(6) A reference in subsection (4) of this section or subsection 8M(2) to
an offence against subsection 8K(1) or (1B) or 8L(1) or (1A)
includes a reference to an offence against section 11.1 of the
Criminal Code that relates to an offence against subsection 8K(1)
or (1B) or 8L(1) or (1A), as the case may be.
21 Subsection 8J(8)
Omit “section 7 of the Crimes Act 1914”, substitute “section 11.1 of the
Criminal Code”.
Tobacco Advertising Prohibition Act 1992
22 Subsection 32(8)
Repeal the subsection, substitute:
(8) A reference in this section to an offence against this Act includes a
reference to an offence:
(a) against section 6 of the Crimes Act 1914; or
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(b) that is taken to have been committed because of section 11.2
or 11.2A of the Criminal Code; or
(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:
(a) section 6 of the Crimes Act 1914; or
(b) section 11.1, 11.4 or 11.5 of the Criminal Code;
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Notes to the Crimes Legislation Amendment (Serious and Organised Crime)
Act (No. 2) 2010
Table of Acts
Notes to the Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010
Note 1
The Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2)
2010 as shown in this compilation comprises Act No. 4, 2010 amended as
indicated in the Tables below.
Table of Acts
Act Number Date Date of Application, and year of Assent commencement saving or
transitional provisions
Crimes Legislation 4, 2010 19 Feb 2010 See s. 2(1) Amendment (Serious and Organised Crime) Act (No. 2) 2010
Statute Law Revision Act 5, 2011 22 Mar 2011 Schedule 2 — 2011 (item 2): (a)
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Notes to the Crimes Legislation Amendment (Serious and Organised Crime)
Act (No. 2) 2010
Act Notes
(a) Subsection 2(1) (item 4) of the Statute Law Revision Act 2011 provides as follows:
(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
4. Schedule 2,
item 2
Immediately after the time specified in the Crimes
Legislation Amendment (Serious and Organised
Crime) Act (No. 2) 2010 for the commencement of
item 182 of Schedule 1 to that Act.
20 February 2010
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Notes to the Crimes Legislation Amendment (Serious and Organised Crime)
Act (No. 2) 2010
Table of Amendments
Table of Amendments
ad. = added or inserted am. = amended rep. = repealed rs. = repealed and substituted
Provision affected How affected
Schedule 1
Item 182................................... am. No. 5, 2011
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