CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009

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

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Schedule 1--Unexplained wealth

Part 1--Main amendments

Proceeds of Crime Act 2002

Part 2--Related amendments

Bankruptcy Act 1966

Crimes Act 1914

Schedule 2--Other ame ndments relating to proceeds of crime

Part 1--Freezing orders

Div ision 1--Main amend ments

Proceeds of Crime Act 2002

Div ision 2--Related amendments

Crimes Act 1914

Family Law Act 1975

Part 2--Removal of 6-year time limit

Proceeds of Crime Act 2002

Part 3--Confiscation scheme and instruments of serious

offences

Proceeds of Crime Act 2002

Part 4--Disclosure of information

Proceeds of Crime Act 2002

Part 5--Legal aid costs

Proceeds of Crime Act 2002

Part 6--Technical amendments

Proceeds of Crime Act 2002

Schedule 3--Amendme nts relating to controlled operations,

assumed identities and witness identity protection

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

Part 1--Main amendments

Crimes Act 1914

Part 2--Provisions relating to pre-commencement

authorisations under State controlled operations law

150

Part 3--General application and transitional provisions

154

Part 4--Consequential amendment

156

Customs Act 1901

156

Schedule 4--Other ame ndments

157

Part 1--Joint commission

157

Criminal Code Act 1995

157

Part 2--Amendment of the Telecommunications (Interception

and Access) Act 1979

161

Telecommunications (Interception and Access) Act 1979

161

Part 3--Regulations

164

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009 1

A Bill for an Act to amend various Acts relating to

the enforcement of the criminal law, and for other

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Crimes Legislation Amendment

(Serious and Organised Crime) Act 2009.

2 Commence ment

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

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

2009

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1

The day on which this Act receives the

Royal Assent.

3. Schedule 2,

Parts 1 to 4

The day after this Act receives the Royal

Assent.

4. Schedule 2,

Part 5

On the day after the end of the period of 3

months beginning on the day on which this

Act receives the Royal Assent.

5. Schedule 2,

Part 6

The day after this Act receives the Royal

Assent.

6. Schedule 3

The day on which this Act receives the

Royal Assent.

7. Schedule 4,

Part 1

The day after this Act receives the Royal

Assent.

8. Schedule 4,

Parts 2 and 3

The day on which this Act receives the

Royal Assent.

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.

Unexplained wealth Schedule 1

Main amendments Part 1

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

Schedule 1

Unexplained wealth

Part 1

Main amendments

Proceeds of Crime Act 2002

1 After paragraph 5(b)

Insert:

(ba) to deprive persons of

unexplained wealth amounts that the

person cannot satisfy a court were not derived from certain

offences; and

2 Paragraph 5(d)

Omit "and literary proceeds", substitute ", literary proceeds and

unexplained wealth amounts".

3 Paragraph 5(e)

Omit "and literary proceeds", substitute ", literary proceeds and

unexplained wealth amounts".

4 At the end of section 7

Add:

; and (f) unexplained wealth orders requiring payment of unexplained

wealth amounts (see Part 2-6).

5 After section 20

Insert:

20A Restraining orders--unexplained wealth

When a restraining order must be made

(1) A court with

proceeds jurisdiction must order that:

(a) property must not be disposed of or otherwise dealt with by

any person; or

(b) property must not be disposed of or otherwise dealt with by

any person except in the manner and circumstances specified

in the order;

if:

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DPP applies for the order; and

(d) there are reasonable grounds to suspect that a person's

total

wealth exceeds the value of the person's

wealth that was

lawfully acquired; and

(e) any affidavit requirements in subsection (3) for the

application have been met; and

(f) the court is satisfied that the

authorised officer who made

the affidavit holds the suspicion or suspicions stated in the

affidavit on reasonable grounds; and

(g) there are reasonable grounds to suspect either or both of the

following:

(i) that the person has committed an offence against a law

of the Commonwealth, a

foreign indictable offence or a

State offence that has a federal aspect;

(ii) that the whole or any part of the person's wealth was

derived from an offence against a law of the

Commonwealth, a foreign indictable offence or a State

offence that has a federal aspect.

Property that a restraining order may cover

(2) The order must specify, as property that must not be disposed of or

otherwise dealt with, the property specified in the application for

the order, to the extent that the court is satisfied that there are

reasonable grounds to suspect that that property is any one or more

of the following:

(a) all or specified property of the

suspect;

(b) all or specified

bankruptcy property of the suspect;

(d) all bankruptcy property of the suspect other than specified

bankruptcy property;

(e) specified property of another person (whether or not that

other person's identity is known) that is subject to the

effective control of the suspect.

Affidavit requirements

(3) The application for the order must be supported by an affidavit of

authorised officer stating:

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(a) that the authorised officer suspects that the

total wealth of

the

suspect exceeds the value of the suspect's

wealth that

was

lawfully acquired; and

(b) if the application is to restrain property of a person other than

the suspect but not to restrain

bankruptcy property of the

suspect--that the authorised officer suspects that the

property is subject to the

effective control of the suspect;

and

following:

(i) that the suspect has committed an offence against a law

of the Commonwealth, a

foreign indictable offence or a

State offence that has a federal aspect;

(ii) that the whole or any part of the suspect's wealth was

derived from an offence against a law of the

Commonwealth, a foreign indictable offence or a State

offence that has a federal aspect.

The affidavit must include the grounds on which the authorised

officer holds those suspicions.

Refusal to make a restraining order

(4) Despite subsection (1), the court may refuse to make a

restraining

order if the court is satisfied that it is not in the public interest to

make the order.

Note:

A court can also refuse to make a restraining order if the

Commonwealth refuses to give an undertaking: see section 21.

Risk of property being disposed of etc.

(5) The court must make a

restraining order even if there is no risk of

the property being disposed of or otherwise dealt with.

Later acquisitions of property

(6) The court may specify that a

restraining order covers property that

is acquired by the

suspect after the court makes the order.

Otherwise, no property that is acquired after a court makes a

restraining order is covered by the order.

6 Subsection 29(1) (note)

Omit "31A", substitute "32".

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Note:

The heading to section 29 is altered by omitting "a restraining order" and substituting

"certain restraining orders".

7 After section 29

Insert:

29A Court may exclude prope rty from a restraining order made

under section 20A

The court to which an application for a

restraining order under

section 20A was made may, when the order is made or at a later

time, exclude specified property from the order if:

(a) an application is made under section 30 or 31; and

(b) the court is satisfied that:

(i) the property is property of a person other than the

suspect; and

(ii) the property is not subject to the

effective control of the

suspect.

Note:

Section 32 may prevent the court from hearing the application until

the DPP has had a reasonable opportunity to conduct an examination

of the applicant.

8 Paragraph 35(1)(a)

After "29", insert "or 29A".

9 Subsection 39(1) (note)

After "Note", insert "1".

10 At the end of subsection 39(1) (after the note)

Add:

Note 2:

If there is an unexplained wealth order that relates to a restraining

order under section 20A, the court may also order the Official Trustee

to pay an amount equal to the unexplained wealth amount out of

property covered by the restraining order: see section 282A.

11 At the end of section 45

Add:

(7) To avoid doubt, this section does not apply to a

restraining order

made under section 20A.

Note:

The heading to section 45 is altered by inserting "certain" before "restraining".

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12 At the end of Division 6 of Part 2-1

Add:

45A Cessation of restraining orde rs relating to unexplained wealth

(1) A

restraining order made under section 20A ceases to be in force

if, within 28 days after the order was made, no application for an

unexplained wealth order has been made in relation to the

suspect

to whom the restraining order relates.

(2) A

restraining order made under section 20A ceases to be in force

if:

(a) an application for an

unexplained wealth order is made in

relation to the

suspect to whom the restraining order relates;

and

(b) the application is made within 28 days after the making of the

restraining order; and

(d) one of the following applies:

(i) the time for an appeal against the refusal has expired

without an appeal being lodged;

(ii) an appeal against the refusal has lapsed;

(iii) an appeal against the refusal has been dismissed and

finally disposed of.

(3) A

restraining order made under section 20A ceases to be in force

if:

(a) an application for an

unexplained wealth order is made in

relation to the

suspect to whom the restraining order relates;

and

(b) the application is made within 28 days after the making of the

restraining order; and

(d) either:

(i) the unexplained wealth order is complied with; or

(ii) an appeal against the unexplained wealth order has been

upheld and finally disposed of.

13 At the end of Chapter 2

Add:

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Part 2-6--Unexplained wealth orders

179A Simplified outline of this Part

This Part provides for the making of certain orders relating to

unexplained wealth.

A preliminary unexplained wealth order requires a person to attend

court for the purpose of enabling the court to decide whether to

make an unexplained wealth order against the person.

An unexplained wealth order is an order requiring the person to

pay an amount equal to so much of the person's total wealth as the

person cannot satisfy the court is not derived from certain offences.

Division 1--Making unexplained wealth orders

179B Making an order requiring a person to appear

(1) A court with

proceeds jurisdiction must make an order (a

preliminary unexplained wealth order) requiring a person to

appear before the court for the purpose of enabling the court to

decide whether or not to make an

unexplained wealth order in

relation to the person if:

(a) the

DPP applies for an unexplained wealth order in relation

to the person; and

(b) the court is satisfied that an

authorised officer has

reasonable grounds to suspect that the person's

total wealth

exceeds the value of the person's

wealth that was

lawfully

acquired; and

application have been met.

Affidavit requirements

(2) An application for an

unexplained wealth order in relation to a

person must be supported by an affidavit of an

authorised officer

stating:

(a) the identity of the person; and

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(b) that the authorised officer suspects that the person's

total

wealth exceeds the value of the person's

wealth that was

lawfully acquired; and

(i) the property the authorised officer knows or reasonably

suspects was lawfully acquired by the person;

(ii) the property the authorised officer knows or reasonably

suspects is owned by the person or is under the

effective control of the person.

The affidavit must include the grounds on which the authorised

officer holds the suspicions referred to in paragraph (c).

179C Application to revoke a preliminary unexplained wealth order

(1) If a court makes a

preliminary unexplained wealth order requiring

a person to appear before the court, the person may apply to the

court to revoke the order.

(2) The application must be made:

(a) within 28 days after the person is notified of the

preliminary

unexplained wealth order; or

(b) if the person applies to the court, within that period of 28

days, for an extension of the time for applying for

revocation--within such longer period, not exceeding 3

months, as the court allows.

(3) The applicant must give written notice to the

DPP of the

application and the grounds on which the revocation is sought.

(4) However, the

preliminary unexplained wealth order remains in

force until the court revokes the order.

(5) The

DPP may adduce additional material to the court relating to

the application to revoke the

preliminary unexplained wealth

order.

(6) The court may revoke the

preliminary unexplained wealth order if

satisfied that there were no grounds on which to make the order at

the time the order was made.

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179D Notice of revocation of a preliminary unexplained wealth

order

If a

preliminary unexplained wealth order is revoked under

section 179C, the

DPP must give written notice of the revocation

to the applicant for the revocation.

179E Making an unexplained wealth order

(1) A court with

proceeds jurisdiction must make an order (an

unexplained wealth order) requiring a person to pay an amount to

the Commonwealth if:

(a) the court has made a

preliminary unexplained wealth order

in relation to the person; and

(b) the court is not satisfied that the

total wealth of the person

was not derived from one or more of the following:

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

(ii) a

foreign indictable offence;

(iii) a

State offence that has a federal aspect.

(2) The court must specify in the order that the person is liable to pay

to the Commonwealth an amount (the person's unexplained

wealth amount) equal to the amount that, in the opinion of the

court, is the difference between:

(a) the person's

total wealth; and

(b) the sum of the values of the property that the court is satisfied

was not derived from one or more of the following:

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

(ii) a

foreign indictable offence;

(iii) a

State offence that has a federal aspect.

(3) In proceedings under this section, the burden of proving that a

person's

wealth is not derived from one or more of the offences

referred to in paragraph (1)(b) lies on the person.

(4) To avoid doubt, when considering whether to make an order under

subsection (1), the court may have regard to information not

included in the application, including information that could not

reasonably have been ascertained before the application was made.

(5) To avoid doubt, subsection (3) has effect despite section 317.

Unexplained wealth Schedule 1

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179F Ancillary orders

(1) A court that makes an

unexplained wealth order, or any other

court that could have made the unexplained wealth order, may

make orders ancillary to the order, either when the order is made or

at a later time.

(2) A court that makes a

preliminary unexplained wealth order, or any

other court that could have made the order, may make orders

ancillary to the order, either when the order is made or at a later

time.

Division 2--Unexplained wealth amounts

179G Determining unexplained wealth amounts

Meaning of wealth

(1) The property of a person that, taken together, constitutes the wealth

of a person for the purposes of this Part is:

(a) property owned by the person at any time;

(b) property that has been under the

effective control of the

person at any time;

or otherwise) or consumed at any time;

including property owned, effectively controlled, disposed of or

consumed before the commencement of this Part.

Meaning of total wealth

(2) The total wealth of a person is the sum of all of the values of the

property that constitutes the person's wealth.

Value of property

(3) The value of any property that has been disposed of or consumed,

or that is for any other reason no longer available, is the greater of:

(a) the value of the property at the time it was acquired; and

(b) the value of the property immediately before it was disposed

of, consumed or stopped being available.

(4) The value of any other property is the greater of:

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(a) the value of the property at the time it was acquired; and

(b) the value of the property on the day that the application for

the

unexplained wealth order was made.

179H Effect of property vesting in an insolvency trustee

In assessing the value of property of a person, property is taken to

continue to be the

person's property if it vests in any of the

following:

(a) in relation to a bankruptcy--the trustee of the estate of the

bankrupt;

(b) in relation to a composition or scheme of arrangement under

Division 6 of Part IV of the Bankruptcy Act 1966--the

trustee of the composition or scheme of arrangement;

of the Bankruptcy Act 1966--the trustee of the agreement;

(d) in relation to the estate of a deceased person in respect of

which an order has been made under Part XI of the

Bankruptcy Act 1966--the trustee of the estate.

179J Reducing unexplained wealth amounts to take account of

forfeiture, pecuniary penalties etc.

In determining the

unexplained wealth amount specified in an

unexplained wealth order in relation to a person, the court must

deduct an amount equal to the following:

(a) the value, at the time of making the order, of any property of

the person forfeited under:

(i) a

forfeiture order; or

(ii) an

interstate forfeiture order; or

(iii) a

foreign forfeiture order;

(b) the sum of any amounts payable by the person under:

(i) a

pecuniary penalty order; or

(ii) a

literary proceeds order; or

(iii) an order under section 243B of the Customs Act 1901;

(iv) an

interstate pecuniary penalty order; or

(v) a

foreign pecuniary penalty order.

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179K Varying unexplained wealth orde rs to increase amounts

(1) The court may, on the application of the

DPP, vary an

unexplained wealth order against a person by increasing the

unexplained wealth amount if subsection (2) or (3) applies. The

amount of the increase is as specified in subsection (2) or (3).

(2) The

unexplained wealth amount may be increased if:

(a) the value of property of the person forfeited under a

forfeiture order, an

interstate forfeiture order or a

foreign

forfeiture order was deducted from the unexplained wealth

amount under paragraph 179J(a); and

(b) an appeal against the forfeiture, or against the order, is

allowed.

The amount of the increase is equal to the value of the property.

(3) The

unexplained wealth amount may be increased if:

(a) an amount payable under a

pecuniary penalty order, a

literary proceeds order, an order under section 243B of the

Customs Act 1901, an

interstate pecuniary penalty order or a

foreign pecuniary penalty order was deducted from the

unexplained wealth amount under paragraph 179J(b); and

(b) an appeal against the amount payable, or against the order, is

allowed.

The amount of the increase is equal to the amount that was

payable.

(4) The

DPP's application may deal with more than one increase to

the same

unexplained wealth amount.

179L Relieving certain dependants from hardship

(1) The court making an

unexplained wealth order specifying an

unexplained wealth amount must make another order directing the

Commonwealth to pay a specified amount to a

dependant of the

person if the court is satisfied that:

(a) the unexplained wealth order would cause hardship to the

dependant; and

(b) the specified amount would relieve that hardship; and

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no knowledge of the person's conduct that is the subject of

the unexplained wealth order.

(2) The specified amount must not exceed the

unexplained wealth

amount.

(3) An order under this section may relate to more than one of the

person's

dependants.

Division 3--How unexplained wealth orders are obtained

179M DPP may apply for an unexplained wealth order

The

DPP may apply for an

unexplained wealth order.

179N Notice of application

(1) This section sets out the notice requirements if the

DPP has made

an application for an

unexplained wealth order.

(2) If a court with

proceeds jurisdiction makes a

preliminary

unexplained wealth order in relation to the person, the

DPP must,

within 7 days of the making of the order:

(a) give written notice of the order to the person who would be

subject to the

unexplained wealth order if it were made; and

(b) provide to the person a copy of the application for the

unexplained wealth order, and any affidavit supporting the

application.

(3) For the purposes of subsection (2), the

DPP must provide a copy

of an affidavit supporting an application, whether the affidavit was:

(a) provided with the application; or

(b) prepared after the application was made.

(4) However, the

DPP may delay giving a copy of an affidavit to the

person if the court to which the application was made so orders.

(5) The court must not make an order under subsection (4) unless it is

satisfied that:

(a) providing a copy of the affidavit would prejudice the

investigation of, or the prosecution of a person for, an

offence; or

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(b) it is for any other reason appropriate to make the order.

179P Additional application for an unexplained wealth order

(1) The

DPP cannot, unless the court gives leave, apply for an

unexplained wealth order against a person if:

(a) an application has previously been made for an unexplained

wealth order in relation to the person; and

(b) the application has been finally determined on the merits.

(2) The court must not give leave unless it is satisfied that:

(a) the

wealth to which the new application relates was

identified only after the first application was determined; or

(b) necessary evidence became available only after the first

application was determined; or

179Q Procedure on application

The person who would be subject to an

unexplained wealth order

if it were made may appear and adduce evidence at:

(a) the hearing of an application under section 179C to revoke a

preliminary unexplained wealth order relating to the

application; and

(b) the hearing in relation to whether the unexplained wealth

order is to be made under section 179E.

Division 4--Enforcement of unexplained wealth orders

179R Enforcement of an unexplained wealth order

(1) An amount payable by a person to the Commonwealth under an

unexplained wealth order is a civil debt due by the person to the

Commonwealth.

(2) An

unexplained wealth order against a person may be enforced as

if it were an order made in civil proceedings instituted by the

Commonwealth against the person to recover a debt due by the

person to the Commonwealth.

(3) The debt arising from the order is taken to be a judgment debt.

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(4) If an

unexplained wealth order is made against a person after the

person's death, this section has effect as if the person had died on

the day after the order was made.

179S Property subject to a pe rson's effective control

(1) If:

(a) a person is subject to an

unexplained wealth order; and

(b) the

DPP applies to the court for an order under this section;

and

effective control of the person;

the court may make an order declaring that the whole, or a

specified part, of that property is available to satisfy the

unexplained wealth order.

(2) The order under subsection (1) may be enforced against the

property as if the property were the

person's property.

(3) A

restraining order may be made in respect of the property as if:

(a) the property were the

person's property; and

(b) there were reasonable grounds to suspect that:

(i) the person had committed an offence against a law of

the Commonwealth, a

foreign indictable offence or a

State offence that has a federal aspect;

(ii) the whole or any part of the person's wealth was derived

from an offence against a law of the Commonwealth, a

foreign indictable offence or a State offence that has a

federal aspect.

(4) If the

DPP applies for an order under subsection (1) relating to

particular property, the DPP must give written notice of the

application to:

(a) the person who is subject to the

unexplained wealth order;

and

(b) any person whom the DPP has reason to believe may have an

interest in the property.

(5) The person who is subject to the

unexplained wealth order, and

any person who claims an

interest in the property, may appear and

adduce evidence at the hearing of the application.

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179T Amounts exceeding the court's jurisdiction

(1) If:

(a) a court makes an

unexplained wealth order of a particular

amount; and

(b) the court does not have jurisdiction with respect to the

recovery of debts of an amount equal to that amount;

the registrar of the court must issue a certificate containing the

particulars specified in the regulations.

(2) The certificate may be registered, in accordance with the

regulations, in a court having jurisdiction with respect to the

recovery of debts of an amount equal to the amount of the relevant

order.

(3) Upon registration in a court, the certificate is enforceable in all

respects as a final judgment of the court in favour of the

Commonwealth.

14 After paragraph 202(5)(e)

Insert:

(ea) a document relevant to identifying, locating or quantifying

the property of a person, if it is reasonable to suspect that the

total value of the person's

wealth exceeds the value of the

person's wealth that was

lawfully acquired;

(eb) a document relevant to identifying or locating any document

necessary for the transfer of property of such a person;

15 Paragraph 202(5)(f)

Omit "or (e)", substitute "(e), (ea) or (eb)".

16 After section 282

Insert:

282A Direction by a court to the Official Trustee in relation to

unexplained wealth orders

(1) A court may, if subsection (2), (3) or (4) applies, direct the

Official Trustee to pay the Commonwealth, out of property that is

subject to a

restraining order under section 20A, an amount equal

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to the

unexplained wealth amount made under an

unexplained

wealth order in relation to a person.

(2) The court that makes the

unexplained wealth order may include

such a direction in the order if the

restraining order:

(a) has already been made against the person; and

(b) relates to property that constitutes part of the person's

total

wealth.

(3) The court that makes the

restraining order may include such a

direction in the order if:

(a) the

unexplained wealth order has been made against the

person; and

(b) the restraining order is subsequently made:

(i) against the person under section 20A; or

(ii) against property of another person in relation to which

an order is in force under section 179S in relation to the

unexplained wealth order.

(4) The court that made the

unexplained wealth order or the

restraining order may, on application by the

DPP, make the

direction if:

(a) the unexplained wealth order has been made against the

person; and

(b) the restraining order has been made:

(i) against the person under section 20A; or

(ii) against property of another person in relation to which

an order is in force under section 179S in relation to the

unexplained wealth order.

Note:

The heading to section 282 is altered by adding at the end "in relation to certain

restraining orders".

17 Subsections 283(1) and 284(1)

After "282", insert "or 282A".

18 Subsection 284(2)

Omit "or

literary proceeds amount", substitute ",

literary proceeds

amount or

unexplained wealth amount".

19 Paragraph 284(2)(a)

Unexplained wealth Schedule 1

Main amendments Part 1

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

Omit "or literary proceeds amount", substitute ", literary proceeds

amount or unexplained wealth amount".

20 Subsection 285(1)

After "282", insert "or 282A".

21 Subsection 285(2)(a)

Omit "or

literary proceeds order", substitute ",

literary proceeds order

unexplained wealth order".

22 Subsection 285(2)(b)

Omit "or literary proceeds order", substitute ", literary proceeds order or

unexplained wealth order".

23 At the end of section 286

Add:

(3) If the

Official Trustee credits, under this Division, money to the

Confiscated Assets Account as required by section 296 in

satisfaction of a person's liability under an

unexplained wealth

order, the person's liability under the unexplained wealth order is,

to the extent of the credit, discharged.

24 After paragraph 296(3)(f)

Insert:

(fa) the amount referred to in subsection 179R(1);

25 Paragraph 322(1)(c)

Omit all the words from and including "or 168" to and including

"proceeds", substitute ", 168 or 179S to satisfy a

pecuniary penalty

order, a

literary proceeds order or an

unexplained wealth".

26 Subsection 322(1)

Omit "or 168" (second occurring), substitute ", 168 or 179S".

27 After subsection 322(4)

Insert:

(4A) Despite subsections (2) and (3), in the case of an

unexplained

wealth order, or an order under section 179S that relates to an

Schedule 1 Unexp lained wealth

Part 1 Main amendments

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

2009

unexplained wealth order, the person may appeal against the

targeted order in the same manner as if:

(a) the person had been convicted of one of the following:

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

(ii) a

foreign indictable offence;

(iii) a

State offence that has a federal aspect; and

(b) the targeted order were, or were part of, the sentence imposed

on the person in respect of the offence.

28 Subsection 335(1)

After "order" (first occurring), insert ", other than a

preliminary

unexplained wealth order or an

unexplained wealth order,".

29 At the end of section 335

Add:

Preliminary unexplained wealth orders and unexplained wealth

orders

(7) The courts that have proceeds jurisdiction for a

preliminary

unexplained wealth order or an

unexplained wealth order are those

of any State or Territory with jurisdiction to deal with criminal

matters on indictment.

30 Section 336

Omit "or

literary proceeds", substitute ",

literary proceeds or

wealth".

31 Section 336

Omit "or literary proceeds", substitute ", literary proceeds or wealth".

32 After section 336

Insert:

336A Meaning of prope rty or wealth being lawfully acquired

For the purposes of this Act, property or

wealth is lawfully

acquired only if:

(a) the property or wealth was lawfully acquired; and

(b) any consideration given for the property or wealth was

lawfully acquired.

Unexplained wealth Schedule 1

Main amendments Part 1

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

33 Section 338 (definition of confiscation order)

Omit "or a

literary proceeds order", substitute ", a

literary proceeds

order or an

unexplained wealth order".

34 Section 338

Insert:

lawfully acquired has a meaning affected by section 336A.

35 Section 338

Insert:

preliminary unexplained wealth order, in relation to a person,

means an order under section 179B requiring the person to appear

before a court.

36 Section 338 (definition of restraining order)

Omit "or 20", substitute "20 or 20A".

37 Section 338

Insert:

State offence that has a federal aspect has the same meaning as in

the Crimes Act 1914.

Note:

Section 3AA of the Crimes Act 1914 sets out when a State offence has

a federal aspect.

38 Section 338 (definition of suspect)

Insert:

suspect means:

(a) in relation to a

restraining order (other than a restraining

order made under section 20A) or a

confiscation order (other

than an

unexplained wealth order)--the person who:

(i) has been convicted of; or

(ii) has been

charged with, or is proposed to be charged

with; or

(iii) if the order is a restraining order--is suspected of

having committed; or

(iv) if the order is a confiscation order--committed;

Schedule 1 Unexp lained wealth

Part 1 Main amendments

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

2009

the offence or offences to which the order relates; or

(b) in relation to a restraining order made under section 20A or

an unexplained wealth order--the person whose

total wealth

is suspected of exceeding the value of

wealth that was

lawfully acquired.

39 Section 338

Insert:

total wealth, of a person, has the meaning given by subsection

179G(2).

40 Section 338

Insert:

unexplained wealth amount, of a person, has the meaning given

by subsection 179E(2).

41 Section 338

Insert:

unexplained wealth order means an order made under subsection

179E(1) that is in force.

42 Section 338

Insert:

wealth, of a person, has the meaning given by subsection 179G(1).

Unexplained wealth Schedule 1

Related amend ments Part 2

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

Part 2

Related amendments

Bankruptcy Act 1966

43 Subsection 5(1) (at the end of the definition of pecuniary

penalty order)

Add:

; or (c) an unexplained wealth order within the meaning of the

Proceeds of Crime Act 2002.

Crimes Act 1914

44 Subparagraph 3(2)(a)(ii)

Omit "or a literary proceeds order", substitute ", a literary proceeds

order or an unexplained wealth order".

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

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

2009

Schedule 2

Other amendments relating to

proceeds of crime

Part 1

Freezing orders

Division 1

Main amendments

Proceeds of Crime Act 2002

1 Section 7

Omit "5", substitute "a number of".

2 Before paragraph 7(a)

Insert:

(aa) freezing orders limiting withdrawals from accounts with

financial institutions before courts decide applications for

restraining orders to cover the accounts (see Part 2-1A); and

3 Before Part 2-1

Insert:

Part 2-1A--Freezing orders

15A Simplified outline of this Part

A freezing order can be made against an account with a financial

institution if:

(a) there are grounds to suspect the account balance

reflects proceeds or an instrument of certain

offences; and

(b) a magistrate is satisfied that, unless the order is

made, there is a risk that the balance of the account

will be reduced so that a person will not be

deprived of all or some of the proceeds or

instrument.

Other amend ments relating to proceeds of crime Schedule 2

Freezing orders Part 1

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

Division 1--Making freezing orders

15B Making freezing orders

(1) A magistrate must order that a

financial institution not allow a

withdrawal from an

account with the institution, except in the

manner and circumstances specified in the order, if:

(a) an

authorised officer described in paragraph (a), (aa), (b) or

applies for the order in accordance with Division 2; and

(b) there are reasonable grounds to suspect that the balance of

the account:

(i) is

proceeds of an

indictable offence, a

foreign

indictable offence or an

indictable offence of

Commonwealth concern (whether or not the identity of

the person who committed the offence is known); or

(ii) is wholly or partly an

instrument of a

serious offence;

and

this section, there is a risk that the balance of the account will

be reduced so that a person will not be deprived of all or

some of such proceeds or such an instrument.

Note 1:

Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer

in section 338 cover certain AFP members, certain members of the

Australian Commission for Law Enforcement Integrity, certain

members of the Australian Crime Commission and certain officers of

Customs.

Note 2:

The balance of the account may be proceeds of an offence even

though the balance is only partly derived from the offence: see

section 329.

(2) An order made under subsection (1) covers the balance of the

account from time to time.

Order need not be based on commission of particular offence

(3) The reasonable grounds referred to in paragraph (1)(b), and the

satisfaction referred to in paragraph (1)(c), need not be based on a

finding as to the commission of a particular offence.

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

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

2009

Division 2--How freezing orders are obtained

15C Affidavit supporting application made in person

If an

authorised officer applies in person to a magistrate for a

freezing order relating to an

account with a

financial institution,

the application must be supported by an affidavit of an authorised

officer described in paragraph (a), (aa), (b) or (c) of the definition

of authorised officer in section 338:

(a) setting out sufficient information to identify the account (for

example, the account number); and

(b) identifying the financial institution; and

account:

(i) is

proceeds of an

indictable offence, a

foreign

indictable offence or an

indictable offence of

Commonwealth concern; or

(ii) is wholly or partly an

instrument of a

serious offence;

and

(d) setting out the grounds on which a person could be satisfied

that, unless the order is made, there is a risk that the balance

of the account will be reduced so that a person will not be

deprived of all or some of such proceeds or of such an

instrument.

Note:

Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer

in section 338 cover certain AFP members, certain members of the

Australian Commission for Law Enforcement Integrity, certain

members of the Australian Crime Commission and certain officers of

Customs.

15D Applying for freezing orde rs by telephone or other electronic

means

(1) An

authorised officer described in paragraph (a), (aa), (b) or (c) of

the definition of authorised officer in section 338 may apply to a

magistrate for a

freezing order by telephone, fax or other

electronic means:

(a) in an urgent case; or

(b) if the delay that would occur if an application were made in

person would frustrate the effectiveness of the order.

Other amend ments relating to proceeds of crime Schedule 2

Freezing orders Part 1

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

Note:

Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer

in section 338 cover certain AFP members, certain members of the

Australian Commission for Law Enforcement Integrity, certain

members of the Australian Crime Commission and certain officers of

Customs.

(2) An application under subsection (1):

(a) must include all information that would be required in an

ordinary application for a

freezing order and supporting

affidavit; and

(b) if necessary, may be made before the affidavit is sworn.

(3) The magistrate may require:

(a) communication by voice to the extent that it is practicable in

the circumstances; and

(b) any further information.

15E Making order by telephone etc.

(1) The magistrate may complete and sign the same form of

freezing

order that would be made under section 15B if satisfied that:

(a) a freezing order should be issued urgently; or

(b) the delay that would occur if an application were made in

person would frustrate the effectiveness of the order.

(2) If the magistrate makes the

freezing order, he or she must inform

the applicant, by telephone, fax or other electronic means, of the

terms of the order and the day on which and the time at which it

was signed.

(3) The applicant must then:

(a) complete a form of

freezing order in terms substantially

corresponding to those given by the magistrate; and

(b) state on the form:

(i) the name of the magistrate; and

(ii) the day on which the order was signed; and

(iii) the time at which the order was signed.

(4) The applicant must give the magistrate the form of

freezing order

completed by the applicant by the end of:

(a) the second

working day after the magistrate makes the

order; or

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

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

2009

(b) the first working day after the magistrate makes the order, if

it is served on the

financial institution concerned before the

first working day after the magistrate makes the order.

(5) If, before the magistrate made the

freezing order, the applicant did

not give the magistrate an affidavit supporting the application and

meeting the description in section 15C, the applicant must do so by

the time by which the applicant must give the magistrate the form

of freezing order completed by the applicant.

(6) If the applicant does not comply with subsection (5), the

freezing

order is taken never to have had effect.

(7) The magistrate must attach the form of

freezing order completed

by the magistrate to the documents provided under subsection (4)

and (if relevant) subsection (5).

15F Unsigned freezing orders in court proceedings

If:

(a) it is material, in any proceedings, for a court to be satisfied

that a

freezing order applied for under section 15D was duly

made; and

(b) the form of freezing order signed by the magistrate is not

produced in evidence;

the court must assume that the order was not duly made unless the

contrary is proved.

15G Offence for making false statements in applications

A person commits an offence if:

(a) the person makes a statement (whether orally, in a document

or in any other way); and

(b) the statement:

(i) is false or misleading; or

(ii) omits any matter or thing without which the statement is

misleading; and

application for a

freezing order.

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

Other amend ments relating to proceeds of crime Schedule 2

Freezing orders Part 1

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

15H Offences relating to orders made under section 15E

Offence for stating incorrect names in telephone orders

(1) A person commits an offence if:

(a) the person states a name of a magistrate in a document; and

(b) the document purports to be a form of

freezing order under

section 15E; and

order.

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

Offence for unauthorised form of order

(2) A person commits an offence if:

(a) the person states a matter in a form of

freezing order under

section 15E; and

(b) the matter departs in a material particular from the order

made by the magistrate.

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

Offence for service of unauthorised form of order

(3) A person commits an offence if:

(a) the person presents a document to a person; and

(b) the document purports to be a form of

freezing order under

section 15E; and

(i) has not been approved by a magistrate under that

section; or

(ii) departs in a material particular from the terms given by

the magistrate under that section.

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

Offence for giving form of order different from that served

(4) A person commits an offence if:

(a) the person gives a magistrate a form of

freezing order under

section 15E relating to a

financial institution; and

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

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

2009

(b) the person does so after presenting to the financial institution

a document purporting to be a form of the freezing order; and

the document presented to the financial institution.

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

Division 3--Giving effect to freezing orders

15J Service of freezing order on financial institution and

account-holder

If a magistrate makes a

freezing order relating to an

account with

financial institution, the applicant for the order must cause a

copy of the order (or of a form of the order under section 15E) to

be given to:

(a) the financial institution; and

(b) each person in whose name the account is held.

Note:

If the copy of the order is given to the financial institution after the

end of the first working day after the order is made, the order does not

come into force: see subsection 15N(1).

15K Freezing order does not prevent withdrawal to enable financial

institution to meet its liabilities

freezing order relating to an

account with a

financial

institution does not prevent the institution from allowing a

withdrawal from the account to enable the institution to meet a

liability imposed on the institution by or under a written law of the

Commonwealth, a State or a Territory.

15L Offence for contravening freezing orde rs

financial institution commits an offence if:

(a) the institution allows a withdrawal from an

account with the

institution; and

(b) there is a

freezing order relating to the account; and

Penalty: Imprisonment for 5 years or 300 penalty units or both.

Other amend ments relating to proceeds of crime Schedule 2

Freezing orders Part 1

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

15M Protection from suits etc. for those complying with orders

No action, suit or proceeding lies against:

(a) a

financial institution; or

(b) an

officer or

agent of the institution acting in the course of

that person's employment or agency;

in relation to any action taken by the institution or person in

complying with a

freezing order or in the mistaken belief that

action was required under a freezing order.

Note:

This section does not affect any action that may lie against anyone

else for the making or operation of a freezing order.

Division 4--Duration of freezing orders

15N When a freezing order is in force

(1) A

freezing order relating to an

account with a

financial

institution comes into force when a copy of the order (or of a form

of the order under section 15E) is given to the institution.

However, the order does not come into force if the copy is given to

the institution after the end of the first

working day after the order

is made.

(2) The

freezing order remains in force until:

(a) the end of the period specified in the order (as affected by

section 15P if relevant) from when the copy of the order was

given to the institution; or

(b) if, before the end of that period, a court makes a decision on

an application for a

restraining order to cover the

account--

the time the court makes that decision.

(3) The

freezing order, as originally made, must not specify a period

of more than 3

working days.

15P Order extending a freezing orde r

(1) A magistrate may make an order extending the period specified in

freezing order made in relation to an

account with a

financial

institution if:

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

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

2009

(a) an

authorised officer described in paragraph (a), (aa), (b) or

applies for the extension; and

(b) the magistrate is satisfied that an application has been made

to a court (but not decided by the court) for a

restraining

order to cover the account (whether or not the restraining

order is also to cover other property).

(2) The extension may be for:

(a) a specified number of

working days; or

(b) the period ending when the court decides the application for

the

restraining order.

(3) The extension does not have effect unless a copy of the order for

the extension is given to the

financial institution before the time

the

freezing order would cease to be in force apart from the

extension.

(4) The following provisions apply in relation to an order extending a

freezing order in a way corresponding to the way in which they

apply in relation to a freezing order:

(a) Division 2 (except paragraphs 15C(c) and (d));

(b) section 15J (except the note to that section).

(5) Division 2 applies because of subsection (4) as if:

(a) section 15C also required that an affidavit supporting an

application:

(i) identify the

freezing order; and

(ii) state that an application has been made for a

restraining

order to cover the

account; and

(b) the reference in subsection 15E(1) to section 15B were a

reference to subsection (1) of this section.

Division 5--Varying scope of freezing orders

15Q Magistrate may vary freezing order to allow withdrawal to

meet reasonable expenses

(1) A magistrate may vary a

freezing order relating to an

account

with a

financial institution so that the institution may allow a

Other amend ments relating to proceeds of crime Schedule 2

Freezing orders Part 1

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

withdrawal from the account to meet one or more of the following

relating to a person in whose name the account is held:

(a) the reasonable living expenses of the person;

(b) the reasonable living expenses of any of the

dependants of

the person;

(d) a specified debt incurred in good faith by the person.

(2) The magistrate may vary the

freezing order only if:

(a) a person in whose name the

account is held has applied for

the variation; and

(b) the person has notified the

DPP in writing of the application

and the grounds for the application; and

or will not, relate to legal costs that the person has incurred,

or will incur, in connection with:

(i) proceedings under this Act; or

(ii) proceedings for an offence against a law of the

Commonwealth, a State or a Territory; and

(d) the magistrate is satisfied that the person cannot meet the

expense or debt out of property that is not covered by:

(i) a freezing order; or

(ii) a

restraining order; or

(iii) an

interstate restraining order; or

(iv) a

foreign restraining order that is registered under the

Mutual Assistance Act.

(3) The variation does not take effect until written notice of it is given

to the

financial institution.

4 Paragraph 337A(1)(a)

After "for a", insert "

freezing order,".

5 Paragraph 337A(2)(a)

After "for a", insert "

freezing order or".

6 Section 338

Insert:

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

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

2009

freezing order means an order under section 15B, with any

variations under section 15Q.

7 Section 338

Insert:

working day means a day that is not a Saturday, Sunday, public

holiday or bank holiday in the place concerned.

8 Application

Part 2-1A of the Proceeds of Crime Act 2002 applies in relation to an

account if there are reasonable grounds to suspect that the balance of the

account:

(a) is proceeds of an indictable offence, a foreign indictable

offence or an indictable offence of Commonwealth concern;

(b) is wholly or partly an instrument of a serious offence;

whether the conduct constituting the offence occurs before, on or after

the commencement of that Part.

Division 2

Related amendments

Crimes Act 1914

9 Subsection 21E(4) (paragraph (a) of the definition of

confiscation proceedings)

After "for", insert "freezing orders,".

Family Law Act 1975

10 Subsection 4(1) (before paragraph (a) of the definition of

proceeds of crime order)

Insert:

(aa) a freezing order under the Proceeds of Crime Act 2002; or

Other amend ments relating to proceeds of crime Schedule 2

Removal o f 6-year time limit Part 2

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

Part 2

Removal of 6-year time limit

Proceeds of Crime Act 2002

11 Paragraph 18(1)(d)

Repeal the paragraph, substitute:

(d) there are reasonable grounds to suspect that a person has

committed a

serious offence; and

12 Paragraph 18(3)(a)

Repeal the paragraph, substitute:

(a) that the authorised officer suspects that the

suspect

committed the offence; and

13 At the end of subparagraph 19(1)(d)(ii)

Add "and".

14 Paragraph 19(1)(d)

Omit "and, if the offence is not a terrorism offence, that the offence was

committed within the 6 years preceding the application, or since the

application was made; and".

15 Application of amendments of sections 18 and 19

The amendments of sections 18 and 19 of the Proceeds of Crime Act

2002 made by this Part apply in relation to applications made on or after

the commencement of the amendments for a restraining order, whether

the conduct constituting the offence concerned occurred or occurs

before, on or after that commencement.

16 Paragraph 47(1)(c)

Repeal the paragraph, substitute:

suspected conduct formed the basis of the restraining order

engaged in conduct constituting one or more

serious

offences.

17 Paragraph 49(1)(d)

Repeal the paragraph.

Schedule 2 Other amendments relating to proceeds of crime

Part 2 Removal of 6-year time limit

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

2009

18 Application of amendments of sections 47 and 49

The amendments of sections 47 and 49 of the Proceeds of Crime Act

2002 made by this Part apply in relation to applications made on or after

the commencement of the amendments for a forfeiture order, whether

the conduct constituting the offence concerned occurred or occurs

before, on or after that commencement.

19 Subsection 84(1)

Omit "(1)".

20 Subsection 84(2)

Repeal the subsection.

21 Subsection 85(1)

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

22 Subsection 85(2)

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

23 Subsection 110(1)

Omit "(1)".

24 Subsection 110(2)

Repeal the subsection.

25 Subsection 111(1)

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

26 Subsection 111(2)

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

27 Subparagraph 116(1)(b)(ii)

Omit "subject to subsection (2),".

28 Subsection 116(2)

Repeal the subsection.

29 Application of amendments of section 116

Other amend ments relating to proceeds of crime Schedule 2

Removal o f 6-year time limit Part 2

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

The amendments of section 116 of the Proceeds of Crime Act 2002

made by this Part apply in relation to applications made on or after the

commencement of the amendments for a pecuniary penalty order,

whether the conduct constituting the offence concerned occurred or

occurs before, on or after that commencement.

30 Section 149

Repeal the section, substitute:

149 Court may confirm pecuniary penalty order

The court may confirm the

pecuniary penalty order if the court is

satisfied that, when the

DPP applied for the order, the court could

have made the order without relying on the person's conviction

that was

quashed.

31 Application of new section 149

Section 149 of the Proceeds of Crime Act 2002 as amended by this Part

applies in relation to pecuniary penalty orders applied for after the

commencement of that section, whether the conduct constituting the

offence concerned occurred or occurs before, on or after that

commencement.

32 Subparagraphs 202(5)(a)(ii) and (iii)

Repeal the subparagraphs, substitute:

(ii) whom there are reasonable grounds to suspect of having

engaged in conduct constituting a

serious offence;

33 Subparagraphs 202(5)(c)(ii) and (iii)

Repeal the subparagraphs, substitute:

(ii) proceeds of a serious offence, or an instrument of a

serious offence, that a person is reasonably suspected of

having committed;

34 Subsection 202(6)

Omit "or (iii)".

35 Application of amendments of section 202

Schedule 2 Other amendments relating to proceeds of crime

Part 2 Removal of 6-year time limit

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

2009

The amendments of section 202 of the Proceeds of Crime Act 2002

made by this Part apply in relation to production orders applied for on

or after the commencement of the amendments, whether the conduct

constituting the offence concerned occurred or occurs before, on or after

that commencement.

36 Section 338 (paragraph (g) of the definition of serious

offence)

After "Criminal Code", insert "or former section 5, 7, 7A or 86 of the

Crimes Act 1914".

Other amend ments relating to proceeds of crime Schedule 2

Confiscation scheme and instruments of serious offences Part 3

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

Part 3

Confiscation scheme and instruments of

serious offences

Proceeds of Crime Act 2002

37 Subparagraph 18(2)(d)(ii)

Omit "

terrorism", substitute "

serious".

38 Subparagraph 18(3)(b)(iii)

Omit "terrorism", substitute "

serious".

39 Subparagraph 19(1)(d)(ii)

Omit "terrorism", substitute "

serious".

40 Subparagraph 19(1)(e)(ii)

Omit "terrorism", substitute "serious".

41 Paragraph 19(2)(b)

Omit "

terrorism", substitute "

serious".

42 Application of amendments of sections 18 and 19

The amendments of sections 18 and 19 of the Proceeds of Crime Act

2002 made by this Part apply in relation to applications made on or after

the commencement of the amendments for a restraining order, whether

the conduct constituting the offence concerned occurred or occurs

before, on or after that commencement.

43 Subparagraph 29(2)(c)(ii)

Omit "a

terrorism", substitute "a serious".

44 Subparagraph 29(2)(c)(ii)

Omit "any terrorism", substitute "any serious".

45 Subparagraph 29(2)(d)(ii)

Omit "a

terrorism", substitute "a serious".

46 Subparagraph 29(2)(d)(ii)

Omit "any terrorism", substitute "any serious".

Schedule 2 Other amendments relating to proceeds of crime

Part 3 Confiscation scheme and instruments of serious offences

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

2009

47 Paragraph 45(6)(ca)

Omit "

terrorism", substitute "

serious".

48 Application of amendments of sections 29 and 45

The amendments of sections 29 and 45 of the Proceeds of Crime Act

2002 made by this Part apply in relation to restraining orders made as a

result of an application made on or after the commencement of the

amendments, whether the conduct constituting the offence concerned

occurred or occurs before, on or after that commencement.

49 At the end of section 47

Add:

Refusal to make a forfeiture order

(4) Despite subsection (1), the court may refuse to make an order

under that subsection relating to property that the court is satisfied:

(a) is an

instrument of a

serious offence other than a

terrorism

offence; and

(b) is not

proceeds of an offence;

if the court is satisfied that it is not in the public interest to make

the order.

50 Application of new subsection 47(4)

Subsection 47(4) of the Proceeds of Crime Act 2002 applies in relation

to the making of an order on or after the commencement of that

subsection, whether the conduct constituting the offence concerned

occurred or occurs before, on or after that commencement.

51 Subparagraph 49(1)(c)(iv)

Omit "

terrorism", substitute "

serious".

52 Application of amendment of subparagraph 49(1)(c)(iv)

The amendment of subparagraph 49(1)(c)(iv) of the Proceeds of Crime

Act 2002 made by this Part applies in relation to applications made on

or after the commencement of the amendment for a forfeiture order,

whether the conduct constituting the offence concerned occurred or

occurs before, on or after that commencement.

53 At the end of section 49

Other amend ments relating to proceeds of crime Schedule 2

Confiscation scheme and instruments of serious offences Part 3

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

Add:

Refusal to make a forfeiture order

(4) Despite subsection (1), the court may refuse to make an order

under that subsection relating to property that the court is satisfied:

(a) is an

instrument of a

serious offence other than a

terrorism

offence; and

(b) is not

proceeds of an offence;

if the court is satisfied that it is not in the public interest to make

the order.

54 Application of new subsection 49(4)

Subsection 49(4) of the Proceeds of Crime Act 2002 applies in relation

to the making of an order on or after the commencement of that

subsection, whether the conduct constituting the offence concerned

occurred or occurs before, on or after that commencement.

55 Subparagraph 73(1)(c)(ii)

Omit "a

terrorism", substitute "a

serious".

56 Subparagraph 73(1)(c)(ii)

Omit "any terrorism", substitute "any serious".

57 Subparagraph 73(1)(d)(iii)

Omit "terrorism" (wherever occurring), substitute "serious".

58 Subparagraph 85(2)(a)(ii)

Omit "

terrorism", substitute "

serious".

59 Subparagraph 85(2)(b)(ii)

Omit "terrorism", substitute "serious".

60 Application of amendments of sections 73 and 85

The amendments of sections 73 and 85 of the Proceeds of Crime Act

2002 made by this Part apply in relation to forfeiture orders applied for

on or after the commencement of the amendments, whether the conduct

constituting the offence concerned occurred or occurs before, on or after

that commencement.

Schedule 2 Other amendments relating to proceeds of crime

Part 3 Confiscation scheme and instruments of serious offences

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

2009

61 Subparagraph 111(2)(a)(ii)

Omit "

terrorism", substitute "

serious".

62 Subparagraph 111(2)(b)(ii)

Omit "terrorism", substitute "serious".

63 Application of amendments of section 111

The amendments of section 111 of the Proceeds of Crime Act 2002

made by this Part apply in relation to the quashing, on or after the

commencement of the amendments, of a conviction of an offence,

whether the conviction occurred before, on or after that commencement.

Other amend ments relating to proceeds of crime Schedule 2

Disclosure of information Part 4

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

Part 4

Disclosure of information

Proceeds of Crime Act 2002

64 Section 8

Before "Chapter 3", insert "(1)".

65 At the end of section 8

Add:

(2) Chapter 3 also authorises the disclosure, to certain authorities for

certain purposes, of information obtained under that Chapter or

certain other provisions (see Part 3-6).

66 At the end of subsection 223(4)

Add:

; (e) a person who is or forms part of an authority with one or

more functions under this Act for the purpose of facilitating

the authority's performance of its functions under this Act;

(f) a person who is or forms part of an authority of the

Commonwealth, or of a State, Territory or foreign country,

that has a function of investigating or prosecuting crimes

against a law of the Commonwealth, State, Territory or

country for the purpose of assisting in the prevention,

investigation or prosecution of a crime against that law;

(g) a person in the Australian Taxation Office for the purpose of

protecting public revenue.

67 At the end of Chapter 3

Add:

Part 3-6--Disclosure of information

266A Disclosure

(1) This section applies if a person obtains information:

(a) as a direct result of:

Schedule 2 Other amendments relating to proceeds of crime

Part 4 Disclosure of in formation

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

2009

(i) the person being given a sworn statement under an order

made under paragraph 39(1)(d); or

(ii) the exercise of a power (by the person or someone else),

or performance (by the person) of a function, under

Part 3-1, 3-2, 3-3, 3-4 or 3-5 or Division 2 of Part 4-1;

(b) as a result of a disclosure, or a series of disclosures, under

this section.

(2) The person may disclose the information to an authority described

in an item of the following table for a purpose described in that

item if the person believes on reasonable grounds that the

disclosure will serve that purpose:

Recipients and purposes of disclosure

Item

Authority to which disclosure may

be made

Purpose for which disclosure may

be made

Authority with one or more

functions under this Act

Facilitating the authority's

performance of its functions under

this Act

Authority of the Co mmon wealth, or

of a State, Territory or fo reign

country, that has a function of

investigating or prosecuting crimes

against a law of the Co mmonwealth,

State, Territory or country

Assisting in the prevention,

investigation or prosecution of a

crime against that law

Australian Taxation Office

Protecting public revenue

Limits on use of information disclosed

(3) A disclosure under this section of an answer given or document

produced in an

examination, or of information from such an

answer or document, is not admissible in evidence in civil or

criminal proceedings against the person who gave the answer or

produced the document except:

(a) in criminal proceedings for giving false or misleading

information; or

(b) in proceedings on an application under this Act; or

(d) in proceedings for enforcement of a

confiscation order; or

Other amend ments relating to proceeds of crime Schedule 2

Disclosure of information Part 4

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

(e) in the case of a document--in civil proceedings for or in

respect of a right or liability it confers or imposes.

Note:

This reflects section 198.

(4) A disclosure under this section of a document produced or made

available under a

production order by a natural person, or of

information from such a document, is not admissible in evidence in

criminal proceeding against the person, except in proceedings

under, or arising out of, section 137.1 or 137.2 of the Criminal

Code (false or misleading information or documents) in relation to

producing the document or making it available.

Note:

This reflects subsection 206(2).

(5) A disclosure under this section of:

(a) information given by a natural person under Part 4-1; or

(b) the giving of a document by a natural person under Part 4-1;

under Part 4-1;

is not admissible in evidence in

criminal proceedings against the

person, except proceedings under, or arising out of, section 137.1

or 137.2 of the Criminal Code (false or misleading information or

documents) in relation to giving the information or document.

Note:

This reflects subsection 271(2) (except paragraph 271(2)(c)).

Schedule 2 Other amendments relating to proceeds of crime

Part 5 Legal aid costs

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

2009

Part 5

Legal aid costs

Proceeds of Crime Act 2002

68 Section 292

Repeal the section.

69 Subsections 293(1), (2) and (3)

Repeal the subsections, substitute:

(1) This section applies if:

(a) a

legal aid commission incurred (before, on or after the

commencement of this subsection) legal costs for:

(i) representing a person whose property was, at the time of

the representation, covered by a

restraining order in

proceedings under this Act; or

(ii) representing a person, who was a

suspect at the time of

the representation and whose property was at that time

covered by a restraining order, in proceedings for

defending any criminal charge against the person; and

(b) the commission has given (before, on or after the

commencement of this subsection) the

Official Trustee a bill

for the costs; and

correct.

(2) The

Official Trustee must pay the legal costs (according to the

bill) to the

legal aid commission out of the

Confiscated Assets

Account, subject to subsection (2A).

(2A) If the

Official Trustee is satisfied that:

(a) the balance of the

Confiscated Assets Account is insufficient

to pay the legal costs; and

(b) property of the person is covered by the

restraining order;

the Official Trustee must pay the legal costs (according to the bill)

to the

legal aid commission out of that property covered by the

order, to the extent possible.

(3) If the

Official Trustee pays an amount to the

legal aid

commission under this section and property of the person is

Other amend ments relating to proceeds of crime Schedule 2

Legal aid costs Part 5

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

covered by a

restraining order, the person must pay the

Commonwealth an amount equal to the lesser of the following (or

either of them if they are the same):

(a) the amount paid to the legal aid commission;

(b) the value of the person's property covered by the restraining

order.

Note:

The heading to section 293 is replaced by the heading "Payments to legal aid

commissions for representing suspects and other persons".

70 Division 1 of Part 4-4

Repeal the Division.

71 Application of amendments of Chapter 4

The amendments of Chapter 4 of the Proceeds of Crime Act 2002 made

by this Part apply in relation to costs that:

(a) were incurred by legal aid commissions before, on or after

the commencement of the amendments; and

(b) if they were incurred before that commencement, had not

been paid to the commissions before that commencement.

Schedule 2 Other amendments relating to proceeds of crime

Part 6 Technical amend ments

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

2009

Part 6

Technical amendments

Proceeds of Crime Act 2002

72 Subsection 37(1) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

73 Subsection 37(2) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

74 Section 40 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

75 Section 71 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

76 Section 195 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

77 Subsection 196(1) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

78 Section 199 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

79 Section 200 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

80 Subsection 201(1) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

81 Section 209 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

82 Subsection 210(1) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

83 Subsection 210(2) (penalty)

Other amend ments relating to proceeds of crime Schedule 2

Technical amend ments Part 6

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

Omit "Maximum penalty:", substitute "Penalty:".

84 Subsection 211(1) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

85 Section 212 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

86 Section 216 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

87 Section 217 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

88 Section 218 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

89 Section 222 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

90 Subsection 223(1) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

91 Subsection 223(2) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

92 Subsection 223(3) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

93 Section 224 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

94 Section 232 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

95 Section 233 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

96 Section 234 (penalty)

Schedule 2 Other amendments relating to proceeds of crime

Part 6 Technical amend ments

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

2009

Omit "Maximum penalty:", substitute "Penalty:".

97 Section 235 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

98 Subsection 246(3) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

99 Section 266 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

100 Subsection 272(1) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

101 Subsection 272(2) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

102 Section 273 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

103 Subsection 274(1)

Omit "(1) A person", substitute "A person".

104 Subsection 274(1) (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

105 Section 275 (penalty)

Omit "Maximum penalty:", substitute "Penalty:".

Amend ments relating to controlled operations, assumed identities and witness identity

protection Schedule 3

Main amendments Part 1

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

Schedule 3

Amendments relating to

controlled operations, assumed

identities and witness identity

protection

Part 1

Main amendments

Crimes Act 1914

1 Subsection 3(1) (definition of ACC authorising officer)

Repeal the definition.

2 Subsection 3(1) (definition of ACLEI authorising officer)

Repeal the definition.

3 Subsection 3(1) (definition of AFP authorising officer)

Repeal the definition.

4 Subsection 3(1) (definition of appropriate authorising

officer)

Repeal the definition.

5 Subsection 3(1) (definition of authorising officer)

Repeal the definition.

6 Subsection 3(1) (definition of controlled operation)

Repeal the definition.

7 Subsection 3(1) (definition of major controlled operation)

Repeal the definition.

8 Subsection 3(1) (definition of nominated Tribunal member)

Repeal the definition.

9 Subsection 3(1) (definition of person targeted)

Repeal the definition.

Schedule 3 A mendments relating to controlled operations, assumed identities and

witness identity protection

Part 1 Main amendments

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

2009

10 Parts IAB and IAC

Repeal the Parts, substitute:

Part IAB--Controlled operations

Division 1--Preliminary

15G Objects of Part

The main objects of this Part are:

(a) to provide for the authorisation, conduct and monitoring of

controlled operations; and

(b) to exempt from criminal liability, and to indemnify from civil

liability:

(i) law enforcement officers who, in the course of a

controlled operation authorised under this Part, take an

active part in, or are otherwise involved in, the

commission of a Commonwealth offence or an offence

against a law of a State or Territory or conduct that may

result in a civil liability; and

(ii) certain other persons who, in accordance with the

instructions of a law enforcement officer and in the

course of a controlled operation authorised under this

Part, take an active part in, or are otherwise involved in,

the commission of a Commonwealth offence or an

offence against a law of a State or Territory or conduct

that may result in a civil liability.

15GA Relationship to other laws and matters

(1) Subject to subsection (2) and section 15HZ, this Part is not

intended to limit a discretion that a court has:

(a) to admit or exclude evidence in any proceedings; or

(b) to stay criminal proceedings in the interests of justice.

(2) In determining whether evidence should be admitted or excluded in

any proceedings, the fact that the evidence was obtained as a result

of a person engaging in criminal activity is to be disregarded if:

(a) both:

Amend ments relating to controlled operations, assumed identities and witness identity

protection Schedule 3

Main amendments Part 1

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

(i) the person was a participant in a controlled operation

authorised under this Part acting in the course of the

controlled operation; and

(ii) the criminal activity was controlled conduct; or

(b) both:

(i) the person was a participant in an operation authorised

under a corresponding State controlled operations law

acting in the course of that operation; and

(ii) the criminal activity was conduct constituting an

offence for which a person would, but for

section 15HH, be criminally responsible.

15GB Concurrent operation of State and Te rritory laws

It is the intention of the Parliament that this Part is not to apply to

the exclusion of a law of a State or Territory to the extent that the

law is capable of operating concurrently with this Part.

15GC Definitions

In this Part:

ACC authorising officer has the meaning given by subsection

15GF(4).

ACLEI authorising officer has the meaning given by subsection

15GF(5).

AFP authorising officer has the meaning given by subsection

15GF(3).

appropriate authorising officer, for a controlled operation

authorised under this Part, means the following:

(a) if the authority to conduct the controlled operation was

granted by an AFP authorising officer--any AFP authorising

officer;

(b) if the authority to conduct the controlled operation was

granted by an ACC authorising officer--any ACC

authorising officer;

granted by an ACLEI authorising officer--any ACLEI

authorising officer.

Schedule 3 A mendments relating to controlled operations, assumed identities and

witness identity protection

Part 1 Main amendments

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

2009

authorising agency, for a controlled operation authorised under

this Part, means the following:

(a) if the authority to conduct the controlled operation was

granted by an AFP authorising officer--the Australian

Federal Police;

(b) if the authority to conduct the controlled operation was

granted by an ACC authorising officer--the ACC;

granted by an ACLEI authorising officer--the Australian

Commission for Law Enforcement Integrity.

authorising officer has the meaning given by subsection 15GF(1).

authority means an authority (whether formal or urgent) to conduct

a controlled operation granted under section 15GI, and includes

any such authority as varied.

chief officer means the following:

(a) in relation to the Australian Federal Police--the

Commissioner;

(b) in relation to the police force of a State or Territory--the

Commissioner of Police in that police force or the person

holding equivalent rank;

Customs;

(d) in relation to the ACC--the Chief Executive Officer of the

ACC;

(e) in relation to the Australian Commission for Law

Enforcement Integrity--the Integrity Commissioner.

civilian participant in a controlled operation means a participant in

the controlled operation who is not a law enforcement officer.

conduct has the same meaning as in the Criminal Code.

controlled conduct means conduct constituting an offence for

which a person would, but for section 15HA, be criminally

responsible.

controlled operation has the meaning given by subsection

15GD(1).

corresponding State controlled operations law means:

Amend ments relating to controlled operations, assumed identities and witness identity

protection Schedule 3

Main amendments Part 1

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

(a) a law of a State or Territory; or

(b) a provision or provisions of a law of a State or Territory;

prescribed by the regulations for the purposes of this definition.

exercise a function includes perform a duty.

formal application has the meaning given by paragraph

15GH(2)(a).

formal authority has the meaning given by paragraph 15GJ(1)(a).

formal variation application:

(a) in relation to an application under subsection 15GP(1)--has

the meaning given by paragraph 15GP(3)(a); and

(b) in relation to an application under subsection 15GU(1)--has

the meaning given by paragraph 15GU(3)(a).

formal variation of authority:

(a) in relation to a variation made by an appropriate authorising

officer--has the meaning given by paragraph 15GR(1)(a);

and

(b) in relation to a variation made by a nominated Tribunal

member--has the meaning given by paragraph 15GW(1)(a).

function includes a power, authority or duty.

law enforcement agency means any of the following:

(a) the Australian Federal Police;

(b) the police force of a State or Territory;

(d) the ACC;

(e) the Australian Commission for Law Enforcement Integrity.

law enforcement participant in a controlled operation means a

participant in the controlled operation who is a law enforcement

officer.

major controlled operation has the meaning given by subsection

15GD(2).

nominated Tribunal member means a person in respect of whom a

nomination under subsection 15GG(1) is in force.

Schedule 3 A mendments relating to controlled operations, assumed identities and

witness identity protection

Part 1 Main amendments

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

2009

participant in a controlled operation means a person who is

authorised under this Part to engage in controlled conduct for the

purposes of the controlled operation.

person targeted, in relation to a controlled operation, means the

person about whom, as a result of the controlled operation:

(a) it is intended to obtain evidence; or

(b) evidence is being, or has been, obtained.

principal law enforcement officer, for a controlled operation

authorised under this Part, means the Australian law enforcement

officer specified in the authority to conduct the controlled

operation as the officer who is responsible for the conduct of the

controlled operation.

serious Commonwealth offence has the meaning given by

subsections 15GE(1) and (3).

serious State offence that has a federal aspect has the meaning

given by subsection 15GE(4).

urgent application has the meaning given by paragraph

15GH(2)(b).

urgent authority has the meaning given by paragraph 15GJ(1)(b).

urgent variation application:

(a) in relation to an application under subsection 15GP(1)--has

the meaning given by paragraph 15GP(3)(b); and

(b) in relation to an application under subsection 15GU(1)--has

the meaning given by paragraph 15GU(3)(b).

urgent variation of authority:

(a) in relation to a variation made by an appropriate authorising

officer--has the meaning given by paragraph 15GR(1)(b);

and

(b) in relation to a variation made by a nominated Tribunal

member--has the meaning given by paragraph 15GW(1)(b).

15GD Meaning of controlled operation and major controlled

operation

(1) A controlled operation is an operation that:

Amend ments relating to controlled operations, assumed identities and witness identity

protection Schedule 3

Main amendments Part 1

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

(a) involves the participation of law enforcement officers; and

(b) is carried out for the purpose of obtaining evidence that may

lead to the prosecution of a person for a serious

Commonwealth offence or a serious State offence that has a

federal aspect; and

conduct that would, apart from section 15HA, constitute a

Commonwealth offence or an offence against a law of a State

or Territory.

Note:

Section 15GN specifies when a controlled operation begins and ends.

(2) A major controlled operation is a controlled operation that is

likely to:

(a) involve the infiltration of an organised criminal group by one

or more undercover law enforcement officers for a period of

more than 7 days; or

(b) continue for more than 3 months; or

threat to human life.

Note:

Section 15GN specifies when a controlled operation begins and ends.

15GE Meaning of serious Commonwealth offence and serious State

offence that has a federal aspect

Meaning of serious Commonwealth offence

(1) For the purposes of this Part, serious Commonwealth offence

means a Commonwealth offence that:

(a) involves a matter mentioned in subsection (2); and

(b) is punishable on conviction by imprisonment for a period of

3 years or more.

(2) The matters are as follows:

(a) theft;

(b) fraud;

(d) currency violations;

(e) controlled substances;

(f) illegal gambling;

(g) obtaining financial benefit by vice engaged in by others;

Schedule 3 A mendments relating to controlled operations, assumed identities and

witness identity protection

Part 1 Main amendments

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

2009

(h) extortion;

(i) money laundering;

(j) perverting the course of justice;

(k) bribery or corruption of, or by, an officer of the

Commonwealth, of a State or of a Territory;

(l) bankruptcy and company violations;

(m) harbouring of criminals;

(n) forgery (including forging of passports);

(o) armament dealings;

(p) illegal importation or exportation of fauna into or out of

Australia;

(q) espionage, sabotage or threats to national security;

(r) misuse of a computer or electronic communications;

(s) people smuggling;

(t) slavery;

(u) piracy;

(v) the organisation, financing or perpetration of sexual servitude

or child sex tourism;

(w) dealings in child pornography or material depicting child

abuse;

(x) importation of prohibited imports;

(y) exportation of prohibited exports;

(z) violence;

(za) firearms;

(zb) a matter that is of the same general nature as a matter

mentioned in one of the preceding paragraphs;

(zc) a matter that is prescribed by the regulations for the purposes

of this paragraph.

(3) Without limiting subsections (1) and (2), an offence against

section 474.19, 474.20, 474.22, 474.23, 474.26 or 474.27, or

Part 5.3, of the Criminal Code is a serious Commonwealth offence

for the purposes of this Part.

Meaning of serious State offence that has a federal aspect

(4) For the purposes of this Part, serious State offence that has a

federal aspect means a State offence that has a federal aspect and

Amend ments relating to controlled operations, assumed identities and witness identity

protection Schedule 3

Main amendments Part 1

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

that would be a serious Commonwealth offence if it were a

Commonwealth offence.

Note:

For when a State offence has a federal aspect, see section 3AA.

15GF Meaning of authorising officer etc.

(1) Any of the following is an authorising officer for a controlled

operation:

(a) if the operation is a major controlled operation and the

investigation of the offence to which the controlled operation

relates is within the functions of the Australian Federal

Police--the Commissioner or a Deputy Commissioner;

(b) if the operation is not a major controlled operation, but the

investigation of the offence to which the controlled operation

relates is within the functions of the Australian Federal

Police--any AFP authorising officer;

operation relates is within the functions of the ACC--any

ACC authorising officer;

(d) if the controlled operation relates to the investigation of a

corruption issue (within the meaning of the Law Enforcement

Integrity Commissioner Act 2006)--any ACLEI authorising

officer.

(2) The following are AFP authorising officers:

(a) the Commissioner;

(b) a Deputy Commissioner;

Australian Federal Police and who is authorised in writing by

the Commissioner for the purposes of this paragraph.

(3) The following are ACC authorising officers:

(a) the Chief Executive Officer of the ACC;

(b) a member of the staff of the ACC who is an SES employee

and who is authorised in writing by the Chief Executive

Officer of the ACC for the purposes of this paragraph.

(4) The following are ACLEI authorising officers:

(a) the Integrity Commissioner;

(b) the Assistant Integrity Commissioner;

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and is authorised in writing by the Integrity Commissioner

for the purposes of this paragraph.

15GG Minister may nominate AAT me mbe rs

(1) The Minister may, by writing, nominate a person who holds one of

the following appointments to the Administrative Appeals Tribunal

to deal with applications under subsection 15GU(1) (which deals

with extending authorities for controlled operations beyond 3

months):

(a) Deputy President;

(b) full-time senior member;

(d) member.

(2) Despite subsection (1), the Minister must not nominate a person

who holds an appointment as a part-time senior member or a

member of the Tribunal unless the person:

(a) is enrolled as a legal practitioner of the High Court, of

another federal court or of the Supreme Court of a State or of

the Australian Capital Territory; and

(b) has been so enrolled for not less than 5 years.

(3) A nomination ceases to have effect if:

(a) the nominated Tribunal member ceases to hold an

appointment described in subsection (1); or

(b) the Minister, by writing, withdraws the nomination.

(4) A nominated Tribunal member has, in relation to the performance

or exercise of a function or power conferred on a nominated

Tribunal member by this Act, the same protection and immunity as

a Justice of the High Court has in relation to proceedings in the

High Court.

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Division 2--Authorisation of controlled operations

Subdivision A--Authorities to conduct controlled operations

15GH Applications for authorities to conduct controlled ope rations

(1) An Australian law enforcement officer of a law enforcement

agency may apply to an authorising officer for an authority to

conduct a controlled operation on behalf of the law enforcement

agency.

(2) An application for an authority may be made:

(a) by means of a written document signed by the applicant

(such an application is a formal application); or

(b) if the applicant has reason to believe that the delay caused by

making a formal application may affect the success of the

controlled operation--orally in person, or by telephone or

any other means of communication (such an application is an

urgent application).

(3) Nothing in this Part prevents an application for an authority being

made in respect of a controlled operation that has been the subject

of a previous application, but in that case the subsequent

application must be a formal application.

Note:

An urgent authority can be varied, but not so as to extend its

duration--see sections 15GO and 15GS.

(4) An application (whether formal or urgent) must:

(a) provide sufficient information to enable the authorising

officer to decide whether or not to grant the application; and

(b) state whether or not the proposed controlled operation, or any

other controlled operation with respect to the same criminal

activity, has been the subject of an earlier application

(whether formal or urgent) for an authority or variation of an

authority and, if so, whether or not the authority was given or

the variation granted; and

must not exceed:

(i) in the case of a formal application--3 months; and

(ii) in the case of an urgent application--7 days.

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(5) An authorising officer may require an applicant to provide such

additional information concerning the proposed controlled

operation as is necessary for the proper consideration of the

application.

(6) As soon as practicable after making an urgent application that was

not made in writing, the applicant must make a written record of

the application and give a copy of it to the authorising officer to

whom the application was made.

15GI Determination of applications

(1) An authorising officer may, after considering an application for an

authority to conduct a controlled operation, and any additional

information provided under subsection 15GH(5):

(a) authorise the controlled operation by granting the authority,

either unconditionally or subject to conditions; or

(b) refuse the application.

(2) An authorising officer must not grant an authority to conduct a

controlled operation unless the authorising officer is satisfied on

reasonable grounds:

(a) that a serious Commonwealth offence or a serious State

offence that has a federal aspect has been, is being or is likely

to be, committed; and

(b) that the nature and extent of the suspected criminal activity

are such as to justify the conduct of a controlled operation;

and

controlled operation will be limited to the maximum extent

consistent with conducting an effective controlled operation;

and

(d) that the operation will be conducted in a way that ensures

that, to the maximum extent possible, any illicit goods

involved in the controlled operation will be under the control

of an Australian law enforcement officer at the end of the

controlled operation; and

(e) that the proposed controlled conduct will be capable of being

accounted for in a way that will enable the reporting

requirements of Division 4 to be complied with; and

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(f) that the controlled operation will not be conducted in such a

way that a person is likely to be induced to commit a

Commonwealth offence or an offence against a law of a State

or Territory that the person would not otherwise have

intended to commit; and

(g) that any conduct involved in the controlled operation will

not:

(i) seriously endanger the health or safety of any person; or

(ii) cause the death of, or serious injury to, any person; or

(iii) involve the commission of a sexual offence against any

person; or

(iv) result in significant loss of, or serious damage to,

property (other than illicit goods); and

(h) that any role assigned to a civilian participant in the operation

is not one that could be adequately performed by a law

enforcement officer.

(3) To avoid doubt, an authorising officer may authorise a particular

controlled operation only if he or she is an authorising officer for

the controlled operation within the meaning of section 15GF.

(4) An authority granted under this section is not a legislative

instrument.

15GJ Manne r of granting authority

(1) An authority to conduct a controlled operation may be granted:

(a) in the case of a formal application (other than a formal

application referred to in subparagraph (b)(ii))--by means of

a written document, signed by the authorising officer (such

an authority is a formal authority); or

(b) in the case of:

(i) an urgent application; or

(ii) a formal application, if the authorising officer is

satisfied that the delay caused by granting a formal

authority may affect the success of the controlled

operation;

orally in person, or by telephone or any other means of

communication (such an authority is an urgent authority).

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(2) Nothing in this Part prevents an authority being granted in respect

of a controlled operation that has been the subject of a previous

authority, but in that case the subsequent authority must be a

formal authority.

Note:

An urgent authority can be varied, but not so as to extend its

duration--see sections 15GO and 15GS.

15GK Form of authority

(1) A formal authority must:

(a) state the name and rank or position of the person granting the

authority; and

(b) identify the principal law enforcement officer for the

controlled operation and, if the principal law enforcement

officer is not the applicant for the authority, the name of the

applicant; and

(d) identify the nature of the criminal activity (including the

suspected serious Commonwealth offences and serious State

offences that have a federal aspect) in respect of which the

controlled conduct is to be engaged in; and

(e) state the identity of the persons authorised to engage in

controlled conduct for the purposes of the controlled

operation; and

(f) specify:

(i) with respect to the law enforcement participants, the

nature of the controlled conduct that those participants

may engage in; and

(ii) with respect to the civilian participants, the particular

controlled conduct (if any) that each such participant

may engage in; and

(g) identify (to the extent known) the person or persons targeted;

and

(h) specify the period of effect of the authority, being a period

not exceeding 3 months; and

(i) specify any conditions to which the conduct of the controlled

operation is subject; and

(j) state the date and time when the authority is granted; and

(k) identify the following details (to the extent to which they are

known and are relevant):

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(i) the nature and quantity of any illicit goods that will be

involved in the controlled operation;

(ii) the foreign countries through which those goods are

likely to pass in the course of the controlled operation;

(iii) the place or places at which those goods are likely to be

dealt with by Customs;

(iv) if subparagraph (iii) does not apply--the place or places

where those goods are likely to enter into Australia;

(v) the time or times when, and the day or days on which,

those goods are likely to be dealt with by Customs.

(2) An urgent authority must:

(a) state the name and rank or position of the person who granted

the authority; and

(b) identify the principal law enforcement officer for the

controlled operation and, if the principal law enforcement

officer is not the applicant for the authority, the name of the

applicant; and

urgent application; and

(d) identify the nature of the crimina l activity (including the

suspected serious Commonwealth offences and serious State

offences that have a federal aspect) in respect of which the

controlled conduct is to be engaged in; and

(e) state the identity of the persons authorised to engage in

controlled conduct for the purposes of the controlled

operation; and

(f) specify:

(i) with respect to the law enforcement participants, the

nature of the controlled conduct that those participants

may engage in; and

(ii) with respect to the civilian participants, the particular

controlled conduct (if any) that each such participant

may engage in; and

(g) identify (to the extent known) the person or persons targeted;

and

(h) specify the period of effect of the authority, being a period

not exceeding 7 days beginning on the day on which the

authority was granted; and

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(i) specify any conditions to which the conduct of the operation

is subject; and

(j) state the date and time when the authority was granted.

(3) A person is sufficiently identified for the purposes of

paragraph (1)(e) or (2)(e) if the person is identified:

(a) by an assumed name under which the person is operating; or

(b) by a code name or code number;

as long as the chief officer of the authorising agency for the

controlled operation can match the assumed name, code name or

code number to the person's identity.

(4) An authority must not identify persons for the purposes of

paragraph (1)(e) or (2)(e) by identifying a class of persons.

15GL Written record of urgent authority must be issued

If an authorising officer grants an urgent authority, the authorising

officer must, within 7 days, issue a written record of the urgent

authority that complies with subsection 15GK(2) to the principal

law enforcement officer for the controlled operation.

15GM Change of principal law enforce ment officer

If an authorising officer in relation to a controlled operation

becomes satisfied that the principal law enforcement officer for the

controlled operation ceases for any reason to have responsibility

for the controlled operation:

(a) the authorising officer may, by instrument in writing,

nominate another person as the principal law enforcement

officer for the controlled operation; and

(b) with effect from the execution of the instrument or such later

time as is specified in the instrument, that other person

becomes the principal law enforcement officer for the

controlled operation.

15GN Commence ment and duration of authorities

(1) An authority to conduct a controlled operation comes into force,

and the controlled operation is taken to commence, at the time the

authority is granted under section 15GI.

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(2) To avoid doubt, an urgent authority is granted when the authorising

officer tells the applicant that the urgent authority is granted.

Note:

An authority is granted under subsection 15GI(1). Paragraph

15GJ(1)(b) enables an authority to be granted orally in specified

circumstances.

(3) An authority (whether formal or urgent) has effect for the period of

effect specified in it under paragraph 15GK(1)(h) or (2)(h) unless:

(a) it is cancelled before the end of the period of effect; or

(b) in the case of a formal authority--the period of effect is

extended under Subdivision B or C.

Subdivision B--Variation of authorities by appropriate

authorising officers

15GO Variation of authority by appropriate authorising office r

(1) An appropriate authorising officer may vary an authority:

(a) at any time on the authorising officer's own initiative; or

(b) on application under subsection 15GP(1).

(2) A variation may:

(a) extend the period of effect of the authority (subject to

subsections (3) and (4)); or

(b) authorise additional persons to engage in controlled conduct

for the purposes of the controlled operation and specify:

(i) with respect to additional law enforcement

participants--the nature of the controlled conduct that

those participants may engage in; and

(ii) with respect to additional civilian participants--the

particular controlled conduct (if any) that each such

participant may engage in; or

engage in controlled conduct for the purposes of the

controlled operation; or

(d) authorise participants in the controlled operation to engage in

additional or alternative controlled conduct.

(3) A variation cannot be made that has the effect of extending the

period of effect of an urgent authority.

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(4) No single variation may extend the period of effect of a formal

authority in such a way that the period of effect of the authority

will, after the variation is made, exceed 3 months (including any

previous extensions).

(5) An authority must not be varied unless the authorising officer is

satisfied on reasonable grounds that the variation will not authorise

a significant alteration of the nature of the controlled operation

concerned.

(6) A variation is not a legislative instrument.

15GP Application to appropriate authorising officer

(1) The principal law enforcement officer for a controlled operation, or

any other Australian law enforcement officer acting on behalf of

the principal law enforcement officer, may apply under this section

to an appropriate authorising officer for a variation of an authority

in respect of a matter mentioned in subsection 15GO(2).

(2) An application cannot be made under subsection (1) for a variation

that would extend the period of effect of a formal authority in such

a way that the period of effect of the authority will, after the

variation is made, exceed 3 months (including any previous

extensions).

(3) An application for the variation may be made:

(a) by means of a written document that is signed by the

applicant (such an application is a formal variation

application); or

(b) if the applicant has reason to believe that the delay caused by

making a formal variation application may affect the success

of the controlled operation to which the authority relates--

orally in person, or by telephone or any other means of

communication (such an application is an urgent variation

application).

(4) More than one application for a variation under this section may be

made in respect of the same authority. However, if an urgent

variation of authority was granted as a result of an application

under this section, the next application must be a formal variation

application.

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(5) The application (whether a formal variation application or an

urgent variation application) must state whether or not the

controlled operation has been the subject of an earlier urgent

variation application under this section and, if so:

(a) whether the urgent variation application was the last

application under this section for a variation; and

(b) whether or not the variation was granted.

(6) If the variation would extend the period of effect of a formal

authority, the application (whether a formal variation application or

an urgent variation application) must state the proposed period of

the extension, which must not exceed:

(a) in the case of a formal variation application--the period that

would result in the period of effect of the authority exceeding

3 months (including any previous extensions); and

(b) in the case of an urgent variation application--the lesser of:

(i) 7 days; and

(ii) a period that would result in the period of effect of the

authority exceeding 3 months (including any previous

extensions).

(7) The authorising officer to whom the application is made may

require the applicant to provide such information concerning the

proposed variation as is necessary for the authorising officer's

proper consideration of the application.

(8) As soon as practicable after making an urgent variation application

that was not made in writing, the applicant must make a written

record of the application and give a copy of it to the authorising

officer to whom the application was made.

15GQ Determination of application to vary authority

(1) After considering an application for a variation of an authority, and

any additional information provided under subsection 15GP(7), the

authorising officer concerned:

(a) may vary the authority in accordance with the application,

either unconditionally or subject to conditions; or

(b) may refuse the application.

(2) The authorising officer must not grant the variation unless the

authorising officer is satisfied on reasonable grounds:

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(a) that a serious Commonwealth offence or a serious State

offence that has a federal aspect has been, is being or is likely

to be, committed; and

(b) that the nature and extent of the suspected criminal activity

are such as to justify the variation; and

controlled operation will be limited to the maximum extent

consistent with conducting an effective controlled operation;

and

(d) that the operation will be conducted in a way that ensures

that, to the maximum extent possible, any illicit goods

involved in the controlled operation will be under the control

of an Australian law enforcement officer at the end of the

controlled operation; and

(e) that the proposed controlled conduct will be capable of being

accounted for in a way that will enable the reporting

requirements of Division 4 to be complied with; and

(f) that the controlled operation will not be conducted in such a

way that a person is likely to be induced to commit a

Commonwealth offence or an offence against a law of a State

or Territory that the person would not otherwise have

intended to commit; and

(g) that any conduct involved in the controlled operation will

not:

(i) seriously endanger the health or safety of any person; or

(ii) cause the death of, or serious injury to, any person; or

(iii) involve the commission of a sexual offence against any

person; or

(iv) result in significant loss of, or serious damage to,

property (other than illicit goods); and

(h) that any role assigned to a civilian participant in the operation

is not one that could be adequately performed by a law

enforcement officer.

15GR Manner of varying authority

(1) An authority may be varied by an appropriate authorising officer

(whether on application or otherwise) only:

(a) in the case of a variation on the authorising officer's own

initiative or on a formal variation application (other than a

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variation referred to in subparagraph (b)(ii))--by means of a

written document, signed by the authorising officer (such a

variation is a formal variation of authority); or

(b) in the case of a variation on:

(i) an urgent variation application; or

(ii) the authorising officer's own initiative or a formal

variation application, if the authorising officer is

satisfied that the delay caused by granting a formal

variation of authority may affect the success of the

controlled operation;

orally in person, or by telephone or any other means of

communication (such a variation is an urgent variation of

authority).

(2) The authorising officer must, as soon as practicable, prepare and

give a written document that complies with section 15GS to the

applicant or, if the variation was on the initiative of the authorising

officer, to the principal law enforcement officer for the controlled

operation.

15GS Form of variation of authority

(1) A variation of an authority by an appropriate authorising officer

(whether formal or urgent) must:

(a) identify the controlled operation to which the authority

relates; and

(b) state the name and rank or position of the person varying the

authority; and

section 15GP, state:

(i) the name of the applicant; and

(ii) whether the application was a formal variation

application or an urgent variation application; and

(d) state the date and time when the variation of authority is or

was granted; and

(e) describe the variation having regard to the matters referred to

in subsection 15GO(2); and

(f) if the variation extends the period of effect of a formal

authority--state the period of the extension.

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(2) For the purposes of paragraph (1)(f), the period of the extension

must not exceed:

(a) in the case of a formal variation of authority--the period that

would result in the period of effect of the authority exceeding

3 months (including any previous extensions); and

(b) in the case of an urgent variation of authority--the lesser of:

(i) 7 days; and

(ii) a period that would result in the period of effect of the

authority exceeding 3 months (including any previous

extensions).

Subdivision C--Variations of authorities by nominated

Tribunal member: extensions beyond 3 months

15GT Variation of formal authority to extend period of effect

beyond 3 months

(1) A nominated Tribunal member may vary a formal authority on

application under subsection 15GU(1).

(2) Subject to subsection (3), a variation may extend the period of

effect of the authority.

(3) No single variation may extend the period of effect of a formal

authority:

(a) for more than 3 months at a time; or

(b) in such a way that the period of effect of the authority will,

after the variation is made, exceed 24 months (including any

previous extensions under this Subdivision or Subdivision

B).

(4) A nominated Tribunal member may only vary a formal authority

during the period of 2 weeks before the end of the period of effect

of the authority.

15GU Application to nominated Tribunal me mbe r

(1) The principal law enforcement officer for a controlled operation

for which there is a formal authority, or any other Australian law

enforcement officer acting on behalf of the principal law

enforcement officer, may apply to a nominated Tribunal member

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for a variation of the authority that would extend its period of

effect:

(a) if the period of effect of the authority is 3 months or more

(including any previous extensions); or

(b) in such a way that the period of effect of the authority will,

after the variation is made, be 3 months or more (including

any previous extensions).

(2) An application cannot be made under subsection (1) for a variation

that would extend the period of effect of a formal authority in such

a way that the period of effect of the authority will, after the

variation is made, exceed 24 months (including any previous

extensions under this Subdivision or Subdivision B).

(3) An application for the variation may be made:

(a) by means of a written document that is signed by the

applicant (such an application is a formal variation

application); or

(b) if the applicant has reason to believe that the delay caused by

making a formal application for the variation may affect the

success of the controlled operation to which the authority

relates--orally in person, or by telephone or any other means

of communication (such an application is an urgent variation

application).

(4) More than one application for a variation under this section may be

made in respect of the same authority. However, if an urgent

variation of authority was granted as a result of an application

under this section, the next application must be a formal variation

application.

(5) An application for a variation (whether a formal variation

application or an urgent variation application) must state:

(a) whether or not the controlled operation has been the subject

of an earlier urgent variation application under this section

and, if so:

(i) whether the urgent variation application was the last

application under this section for a variation; and

(ii) whether or not the variation was granted; and

(b) the proposed period of the extension, which must be such as

to comply with subsection (2) and must not exceed:

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(i) in the case of a formal variation application--3 months;

and

(ii) in the case of an urgent variation application--7 days.

(6) The nominated Tribunal member may require the applicant to

provide such information concerning the proposed variation as is

necessary for the nominated Tribunal member's proper

consideration of the application.

(7) As soon as practicable after making an urgent variation application

that was not made in writing, the applicant must make a written

record of the application and give a copy of it to the nominated

Tribunal member to whom the application was made.

15GV Determination of application

(1) After considering an application for a variation of a formal

authority, and any additional information provided under

subsection 15GU(6), the nominated Tribunal member concerned:

(a) may vary the authority in accordance with the application,

either unconditionally or subject to conditions; or

(b) may refuse the application.

(2) The nominated Tribunal member must not grant the variation

unless the nominated Tribunal member is satisfied on reasonable

grounds:

(a) that a serious Commonwealth offence or a serious State

offence that has a federal aspect has been, is being or is likely

to be, committed; and

(b) that the nature and extent of the suspected criminal activity

are such as to justify the variation; and

controlled operation will be limited to the maximum extent

consistent with conducting an effective controlled operation;

and

(d) that the operation will be conducted in a way that ensures

that, to the maximum extent possible, any illicit goods

involved in the controlled operation will be under the control

of an Australian law enforcement officer at the end of the

controlled operation; and

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(e) that the proposed controlled conduct will be capable of being

accounted for in a way that will enable the reporting

requirements of Division 4 to be complied with; and

(f) that the controlled operation will not be conducted in such a

way that a person is likely to be induced to commit a

Commonwealth offence or an offence against a law of a State

or Territory that the person would not otherwise have

intended to commit; and

(g) that any conduct involved in the controlled operation will

not:

(i) seriously endanger the health or safety of any person; or

(ii) cause the death of, or serious injury to, any person; or

(iii) involve the commission of a sexual offence against any

person; or

(iv) result in significant loss of, or serious damage to,

property (other than illicit goods); and

(h) that any role assigned to a civilian participant in the operation

is not one that could be adequately performed by a law

enforcement officer.

(3) A variation is not a legislative instrument.

15GW Manne r of varying formal authority

(1) A formal authority may be varied by a nominated Tribunal member

only:

(a) in the case of a formal variation application (other than a

formal variation application referred to in

subparagraph (b)(ii))--by means of a written document,

signed by the nominated Tribunal member (such a variation

is a formal variation of authority); or

(b) in the case of:

(i) an urgent variation application; or

(ii) a formal variation application, if the nominated Tribunal

member is satisfied that the delay caused by granting a

formal variation of authority may affect the success of

the controlled operation;

orally in person, or by telephone or any other means of

communication (such a variation is an urgent variation of

authority).

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(2) The nominated Tribunal member must, as soon as practicable,

prepare and give a written document that complies with

section 15GX to the applicant.

15GX Form of variation of formal authority

(1) A variation of a formal authority by a nominated Tribunal member

(whether formal or urgent) must:

(a) identify the controlled operation to which the authority

relates; and

(b) state the name and position of the person varying the

authority; and

(d) state whether the application for the variation was a formal

variation application or an urgent variation application; and

(e) state the date and time when the variation of authority is or

was granted; and

(f) state the period of the extension.

(2) The period of the extension:

(a) must not exceed the period that would result in the period of

effect of the authority exceeding 24 months (including any

previous extensions under this Subdivision or Subdivision

B); and

(b) must not exceed:

(i) in the case of a formal variation of authority--3 months;

and

(ii) in the case of an urgent variation of authority--7 days.

Subdivision D--Other matters

15GY Cancellation of authorities

(1) An appropriate authorising officer may, by order in writing given

to the principal law enforcement officer for a controlled operation,

cancel the authority to conduct the controlled operation at any time

and for any reason.

(2) Without limiting subsection (1), an appropriate authorising officer

may cancel an authority at any time at the request of the principal

law enforcement officer for the controlled operation concerned.

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(3) Cancellation of an authority takes effect at the time the order is

made or at the later time specified in the order.

15GZ Effect of authorities

(1) Subject to subsection (2), an authority:

(a) authorises each law enforcement participant in the controlled

operation to which the authority relates who is identified in

the authority to engage in the controlled conduct specified in

the authority in respect of that participant; and

(b) authorises each civilian participant (if any) in the controlled

operation to which the authority relates who is identified in

the authority to engage in the particular controlled conduct (if

any) specified in the authority in respect of that participant.

(2) A person identified in an authority as being authorised to engage in

controlled conduct for the purposes of the controlled operation is

authorised to do so for the period of effect of the authority, unless:

(a) the authority specifies a shorter period during which the

person is so authorised; or

(b) the authority is varied to provide that the person is no longer

so authorised; or

(3) The authority to engage in controlled conduct given to a participant

cannot be delegated to any other person.

15H Defect in authority

An application for an authority or variation of an authority, and any

authority or variation of an authority granted on the basis of such

an application, is not invalidated by any defect, other than a defect

that affects the application, authority or variation in a material

particular.

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Division 3--Protection from criminal responsibility and

related provisions

Subdivision A--Controlled operations under this Part

15HA Protection from criminal responsibility for controlled conduct

during controlled operations

(1) This section applies if:

(a) a participant in a controlled operation engages in conduct in

the course of, and for the purposes of, the controlled

operation; and

(b) engaging in that conduct is a Commonwealth offence or an

offence against a law of a State or Territory.

(2) Despite any other law of the Commonwealth, a State or a Territory,

the participant is not criminally responsible for the offence, if:

(a) the participant engages in the conduct in accordance with the

authority to conduct the controlled operation; and

(b) the participant is identified in the authority as a person

authorised to engage in controlled conduct for the purposes

of the controlled operation; and

inducing a person to commit a Commonwealth offence or an

offence under a law of a State or Territory that the person

would not otherwise have intended to commit; and

(d) the conduct does not involve the participant engaging in any

conduct that is likely to:

(i) cause the death of, or serious injury to, any person; or

(ii) involve the commission of a sexual offence against any

person; and

(e) if the participant is a civilian participant in the operation--he

or she acts in accordance with the instructions of a law

enforcement officer.

15HB Inde mnification of participants against civil liability

The Commonwealth must indemnify a participant in a controlled

operation against any civil liability (including reasonable costs) the

participant incurs because of conduct the participant engages in if:

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(a) the participant engages in the conduct in the course of, and

for the purposes of, the controlled operation in accordance

with the authority to conduct the controlled operation; and

(b) the participant is identified in the authority as a person

authorised to engage in controlled conduct for the purposes

of the controlled operation; and

inducing a person to commit a Commonwealth offence or an

offence under a law of a State or Territory that the person

would not otherwise have intended to commit; and

(d) the conduct does not involve the participant engaging in any

conduct that is likely to:

(i) cause the death of, or serious injury to, any person; or

(ii) involve the commission of a sexual offence against any

person; and

(e) if the participant is a civilian participant in the operation--he

or she acts in accordance with the instructions of a law

enforcement officer; and

(f) the requirements (if any) specified in the regulations have

been met.

15HC Effect of sections 15HA and 15HB on other laws relating to

criminal investigation

Sections 15HA and 15HB do not apply to a person's conduct that

is, or could have been, authorised under Commonwealth law or a

law of a State or Territory relating to the following:

(a) arrest or detention of individuals;

(b) searches of individuals;

(d) searches, inspections or seizures of other property;

(e) forensic procedure;

(f) electronic surveillance devices or telecommunications

interception;

(g) identification procedures;

(h) the acquisition or use of assumed identities;

(i) any other matter concerning powers of criminal investigation.

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15HD Effect of being unaware of variation or cancellation of

authority

(1) If an authority to conduct a controlled operation is varied in a way

that limits its scope, this Part continues to apply to a participant in

the controlled operation as if the authority had not been varied in

that way, for so long as the participant:

(a) is unaware of the variation; and

(b) is not reckless about the existence of the variation.

(2) If an authority to conduct a controlled operation is cancelled, this

Part continues to apply to a person who was a participant in the

controlled operation immediately before the cancellation as if the

authority had not been cancelled in that way, for so long as the

person:

(a) is unaware of the cancellation; and

(b) is not reckless about the existence of the cancellation.

(3) For the purposes of this section, a person is reckless about the

existence of the variation or cancellation of an authority if:

(a) the person is aware of a substantial risk that the variation or

cancellation has happened; and

(b) having regard to the circumstances known to the person, it is

unjustifiable to take the risk that the authority has not been

varied or cancelled.

15HE Protection from criminal responsibility for certain ancillary

conduct

(1) This section applies if:

(a) a person engages in conduct (the ancillary conduct) that

relates to controlled conduct (the related controlled conduct)

engaged in by another person; and

(b) engaging in the ancillary conduct is an ancillary offence in

relation to the offence constituted by the related controlled

conduct.

(2) Despite any other law of the Commonwealth, a State or a Territory,

the person who engaged in the ancillary conduct is not criminally

responsible for the ancillary offence if, at the time the person

engaged in the ancillary conduct, he or she believed the related

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controlled conduct was being engaged in, or would be engaged in,

by a participant in a controlled operation authorised under this Part.

(3) In this section:

ancillary offence, in relation to an offence constituted by related

controlled conduct, means a Commonwealth offence or an offence

under a law of a State or Territory:

(a) of conspiring to commit the offence constituted by the related

controlled conduct; or

(b) of aiding, abetting, counselling or procuring, inciting or being

in any way knowingly concerned in, the commission of the

offence constituted by the related controlled conduct.

15HF Compensation for prope rty loss or serious damage

(1) If a person suffers loss of or serious damage to property, or

personal injury, in the course of, or as a direct result of a controlled

operation authorised under this Part, the Commonwealth is liable to

pay to the person compensation as agreed between the

Commonwealth and the person or, in default of agreement, as

determined by action against the Commonwealth in a court of

competent jurisdiction.

(2) Subsection (1) does not apply if:

(a) the person suffered the loss, damage or injury in the course

of, or as a direct result of, engaging in any criminal activity

(other than criminal activity that is controlled conduct); or

(b) the person was a law enforcement participant at the time of

suffering the loss, damage or injury.

15HG Notification require ments

(1) If:

(a) any loss of or serious damage to property occurs in the course

of, or as a direct result of, a controlled operation (other than

property of the law enforcement agency on behalf of which

the operation is conducted or a participant in the operation);

(b) any personal injury occurs in the course of, or as a direct

result of, such an operation;

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the principal law enforcement officer for the controlled operation

must report the loss, damage or injury to the chief officer of the

law enforcement agency as soon as practicable.

(2) If loss or serious damage to property is reported to the chief officer

under subsection (1), the chief officer must take all reasonable

steps to notify the owner of the property of the loss or damage.

(3) If a personal injury is reported to the chief officer under

subsection (1), the chief officer must take all reasonable steps to

notify the person that the injury occurred in the course of, or as a

direct result of, the controlled operation.

(4) The chief officer is not required to give a notification under

subsection (2) or (3) until the chief officer is satisfied that the

notification would not:

(a) compromise or hinder the controlled operation or any related

investigation; or

(b) compromise the identity of a participant in the controlled

operation; or

(d) prejudice any legal proceeding; or

(e) otherwise be contrary to the public interest.

(5) A chief officer may, by written instrument, delegate any of the

chief officer's powers or functions under this section to:

(a) in relation to the Australian Federal Police--a Deputy

Commissioner or a person of equivalent or higher rank; or

(b) in relation to Customs--a Deputy Chief Executive Officer of

Customs or a person occupying an equivalent or higher

position; or

(i) an Executive Director or a person occupying an

equivalent or higher position; or

(ii) a person occupying a position prescribed by the

regulations; or

(d) in relation to ACLEI--the Assistant Integrity Commissioner;

(e) in relation to the police force of a State or Territory--a

Deputy Commissioner or a person of equivalent or higher

rank.

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Subdivision B--Controlled operations under a corresponding

State controlled operations law

15HH Protection from criminal responsibility for conduct under a

corresponding State controlled operations law

(1) This section applies to a participant in an operation authorised

under a corresponding State controlled operations law if:

(a) the participant engages in conduct in the course of, and for

the purposes of, the operation; and

(b) engaging in that conduct is a Commonwealth offence.

(2) Despite any other law of the Commonwealth, the participant is not

criminally responsible for the Commonwealth offence, if:

(a) the conduct is authorised by, and is engaged in in accordance

with, the authority to conduct the controlled operation; and

(b) the conduct does not involve the participant intentionally

inducing a person to commit a Commonwealth offence or an

offence against a law of a State or Territory that the person

would not otherwise have intended to commit; and

conduct that is likely to:

(i) cause the death of, or serious injury to, any person; or

(ii) involve the commission of a sexual offence against any

person; and

(d) if the person is a civilian participant in the operation--he or

she acts in accordance with the instructions of a law

enforcement officer.

(3) Expressions used in this section have the same meanings as in the

corresponding State controlled operations law under which the

operation was authorised.

15HI Effect of section 15HH on other laws relating to criminal

investigation

Section 15HH does not apply to a person's conduct that is, or could

have been, authorised under a Commonwealth law or a law of a

State or Territory relating to the following:

(a) arrest or detention of individuals;

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(b) searches of individuals;

(d) searches, inspections or seizures of other property;

(e) forensic procedure;

(f) electronic surveillance devices or telecommunications

interception;

(g) identification procedures;

(h) the acquisition or use of assumed identities;

(i) any other matter concerning powers of criminal investigation.

15HJ Protection from criminal responsibility for certain ancillary

conduct

(1) This section applies if:

(a) a person engages in conduct (the ancillary conduct) that

relates to conduct (the related conduct) that:

(i) was engaged in by another person; and

(ii) constitutes an offence for which a person would, but for

section 15HH, be criminally responsible; and

(b) engaging in the ancillary conduct is an ancillary offence

(within the meaning of the Criminal Code) in relation to the

offence constituted by the related conduct.

(2) Despite any law of the Commonwealth, the person who engaged in

the ancillary conduct is not criminally responsible for the ancillary

offence if, at the time the person engaged in the ancillary conduct,

he or she believed the related conduct was being engaged in, or

would be engaged in, by a participant in an operation authorised

under a corresponding State controlled operations law.

(3) Expressions used in this section have the same meanings as in the

corresponding State controlled operations law under which the

person believed the controlled conduct was being engaged in.

Division 4--Compliance and monitoring

15HK Unauthorised disclosure of information

(1) A person commits an offence if:

(a) the person discloses information; and

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(b) the information relates to a controlled operation.

Penalty: Imprisonment for 2 years.

(2) Subsection (1) does not apply if the disclosure was:

(a) in connection with the administration or execution of this

Part; or

(b) for the purposes of any legal proceedings arising out of or

otherwise related to this Part or of any report of any such

proceedings; or

controlled operation; or

(d) in accordance with any requirement imposed by law; or

(e) in connection with the performance of functions or duties, or

the exercise of powers, of a law enforcement agency.

(3) Subsection (1) does not apply if:

(a) the person (the discloser) discloses the information to the

Ombudsman or the Integrity Commissioner; and

(b) the discloser informs the person to whom the disclosure is

made of the discloser's identity before making the disclosure;

and

controlled operation; and

(d) the discloser considers that the information may assist a

person referred to in paragraph (a) to perform the person's

functions or duties; and

(e) the discloser makes the disclosure in good faith.

Note:

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

subsections (2) and (3)--see subsection 13.3(3) of the Criminal Code.

15HL Unauthorised disclosure of information--endangering safety,

etc.

(1) A person commits an offence if:

(a) the person discloses information; and

(b) the information relates to a controlled operation; and

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(i) the person intends to endanger the health or safety of

any person or prejudice the effective conduct of a

controlled operation; or

(ii) the disclosure of the information will endanger the

health or safety of any person or prejudice the effective

conduct of a controlled operation.

Penalty: Imprisonment for 10 years.

(2) Subsection (1) does not apply if the disclosure was:

(a) in connection with the administration or execution of this

Part; or

(b) for the purposes of any legal proceedings arising out of or

otherwise related to this Part or of any report of any such

proceedings; or

controlled operation; or

(d) in accordance with any requirement imposed by law; or

(e) in connection with the performance of functions or duties, or

the exercise of powers, of a law enforcement agency.

(3) Subsection (1) does not apply if:

(a) the person (the discloser) discloses the information to the

Ombudsman or the Integrity Commissioner; and

(b) the discloser informs the person to whom the disclosure is

made of the discloser's identity before making the disclosure;

and

controlled operation; and

(d) the discloser considers that the information may assist a

person referred to in paragraph (a) to perform the person's

functions or duties; and

(e) the discloser makes the disclosure in good faith.

Note:

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

subsections (2) and (3)--see subsection 13.3(3) of the Criminal Code.

(4) An offence against this section is an indictable offence.

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15HM Chief officers' 6 monthly reports to Ombudsman and

Minister

(1) As soon as practicable after 30 June and 31 December in each year,

the chief officer of each authorising agency must submit a report to

the Ombudsman setting out the details required by subsection (2)

in relation to controlled operations for which the agency was the

authorising agency during the previous 6 months.

(2) The report must include the following details:

(a) the number of formal authorities that were granted or varied

by an authorising officer of the agency during the period to

which the report relates;

(b) the number of formal applications for the grant of formal

authorities that were refused by an authorising officer of the

agency during the period to which the report relates, the date

of those applications and the date of the refusals;

variation applications for the variation of formal authorities

that were refused by an authorising officer of the agency

during the period to which the report relates, the date of those

applications and the date of the refusals;

(d) the number of urgent authorities that were granted or varied

by an authorising officer of the agency during the period to

which the report relates;

(e) the number of formal applications and urgent applications for

the granting of urgent authorities that were refused by an

authorising officer of the agency during the period to which

the report relates, the date of those applications and the date

of the refusals;

(f) the number of formal variation applications and urgent

variation applications for the variation of urgent authorities

that were refused by an authorising officer of the agency

during the period to which the report relates, the date of those

applications and the date of the refusals;

(g) the number of formal authorities that were varied by a

nominated Tribunal member during the period to which the

report relates;

(h) the number of formal variation applications and urgent

variation applications for the variation of formal authorities

that were refused by a nominated Tribunal member during

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the period to which the report relates, the date of those

applications and the date of the refusals;

(i) for each authority that was in force at any time during the

period to which the report relates:

(i) the date the controlled operation commenced; and

(ii) if the controlled operation ceased during that period--

the date of cessation; and

(iii) if subparagraph (ii) does not apply--the last day of the

period of effect of the authority (including any

extensions);

(j) for each authority that was varied by an authorising officer of

the agency during the period to which the report relates--the

date of the application for the variation and the date of the

variation;

(k) for each authority in relation to which an application for

variation was refused by an authorising officer of the agency

during the period to which the report relates--the date of the

application and the date of the refusal;

(l) for each authority that was varied by a nominated Tribunal

member during the period to which the report relates--the

date of the application for the variation and the date of the

variation;

(m) for each authority in relation to which an application for

variation was refused by a nominated Tribunal member

during the period to which the report relates--the date of the

application and the date of the refusal;

(n) the nature of the criminal activities against which the

controlled operations were directed;

(o) the identity of each person targeted under controlled

operations;

(p) the nature of the controlled conduct engaged in for the

purposes of the controlled operations;

(q) if any of the controlled operations involved illicit goods, a

statement (to the extent known) of:

(i) the nature and quantity of the illicit goods; and

(ii) the route through which the illicit goods passed in the

course of the operations; and

(iii) all foreign countries through which the illicit goods

passed in the course of the operation;

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(r) details of any loss of or serious damage to property (other

than property of the law enforcement agency on behalf of

which the operation is conducted or a participant in the

operation) occurring in the course of or as a direct result of

the controlled operations;

(s) details of any personal injuries occurring in the course of or

as a direct result of the operations;

(t) the number of authorities for controlled operations that were

cancelled by an authorising officer of the agency or that

expired during the period to which the report relates.

(3) The Ombudsman may require the chief officer of an authorising

agency to give additional information covering any controlled

operation to which a report relates.

(4) Nothing in paragraphs (2)(o) to (t) requires particulars of a

controlled operation to be included in a report for a period of 6

months if the operation had not been completed during that period,

but the particulars must instead be included in the report for the

period of 6 months in which the operation is completed.

(5) A copy of a report given to the Ombudsman under this section

must be given to the Minister at the same time as it is given to the

Ombudsman.

15HN Chief officers' annual reports to Minister and Ombudsman

(1) As soon as practicable after 30 June in each year, the chief officer

of each authorising agency must submit a report to the Minister

setting out the details required by subsection 15HM(2) in relation

to controlled operations for which the agency was the authorising

agency during the previous 12 months.

(2) Each chief officer must advise the Minister of any information in a

report that, in the chief officer's opinion, should be excluded from

the report before the report is laid before the Parliament because:

(a) the information, if made public, could reasonably be

expected to:

(i) endanger a person's safety; or

(ii) prejudice an investigation or prosecution; or

(iii) compromise any law enforcement agency's operational

activities or methodologies; or

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(b) making the information public would be contrary to the

public interest for any other reason.

(3) The Minister must exclude information from a report if the

Minister is satisfied on the advice of the chief officer of any of the

grounds set out in subsection (2) and must then cause a copy of the

report to be laid before each House of the Parliament within 15

sitting days of that House after the Minister receives it.

(4) A report must not disclose any information that identifies any

person involved in an operation or that is likely to lead to such a

person being identified.

(5) Nothing in this section requires particulars of a controlled

operation to be included in a report for a year if the operation had

not been completed as at 30 June in that year, but the particulars

must instead be included in the report for the year in which the

operation is completed.

(6) If a report relates, in whole or in part, to the work or activities of

the ACC under a corresponding State controlled operations law,

the Minister must, as soon as practicable after the report is laid

before each House of the Parliament, send a copy of the report to

the State or Territory Minister with responsibility for the

corresponding State controlled operations law.

(7) A copy of a report given to the Minister under this section must be

given to the Ombudsman at the same time as it is given to the

Minister.

15HO Annual report by Ombudsman

(1) The Ombudsman must, as soon as practicable after 30 June in each

year:

(a) prepare a report of the work and activities under this Part of

the Ombudsman for the preceding 12 months and give a copy

of the report to the Minister and to the chief officer of the law

enforcement agency to which the report relates; and

(b) prepare a report of the work and activities of the Ombudsman

for the preceding 12 months, being work or activities under a

corresponding State controlled operations law, and give a

copy of the report to the Minister and to the chief officer of

the ACC.

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(2) A report under this section must not include information which, if

made public, could reasonably be expected to:

(a) endanger a person's safety; or

(b) prejudice an investigation or prosecution; or

activities or methodologies.

(3) The Minister must cause a copy of the report to be laid before each

House of the Parliament within 15 sitting days of that House after

the Minister receives it.

(4) A report must include, for each authorising agency concerned,

comments on the comprehensiveness and adequacy of the reports

which were provided to the Ombudsman by the chief officer of the

authorising agency under sections 15HM and 15HN.

(5) A report must not disclose any information that identifies any

person involved in an operation or that is likely to lead to such a

person being identified.

(6) Nothing in this section requires particulars of a controlled

operation to be included in a report for a year if the operation had

not been completed as at 30 June in that year, but the particulars

must instead be included in the report for the year in which the

operation is completed.

(7) If a report relates, in whole or in part, to the work or activities of

the ACC under a corresponding State controlled operations law,

the Minister must, as soon as practicable after the report is laid

before each House of the Parliament, send a copy of the report to

the State or Territory Minister with responsibility for the

corresponding State controlled operations law.

15HP Keeping documents connected with controlled operations

The chief officer of an authorising agency must cause the

following to be kept:

(a) each formal application made to an authorising officer of the

agency;

(b) each written record of an urgent application made to such an

authorising officer;

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(d) each written record of an urgent authority issued under

section 15GL;

(e) each formal variation application made to such an authorising

officer or to a nominated Tribunal member;

(f) each written record of an urgent variation application made to

such an authorising officer or to a nominated Tribunal

member;

(g) each formal variation of authority by such an authorising

officer or by a nominated Tribunal member;

(h) each written document given under subsection 15GR(2) in

relation to a variation of an authority by such an authorising

officer;

(i) each written document given under subsection 15GW(2) in

relation to a variation of a formal authority by a nominated

Tribunal member;

(j) each order cancelling an authority granted by such an

authorising officer.

15HQ Gene ral register

(1) The chief officer of each authorising agency must cause a general

(2) The general register is to specify:

(a) for each application under this Part made to an authorising

officer of the agency (including an application for a variation

of an authority):

(i) the date of the application; and

(ii) whether the application was formal or urgent; and

(iii) whether the application was granted, refused or

withdrawn; and

(iv) if the application was refused or withdrawn--the date

and time of the refusal or withdrawal; and

(b) for each authority under this Part granted by an authorising

officer of the agency:

(i) the date and time the authority was granted; and

(ii) whether the authority was formal or urgent; and

(iii) the name and rank or position of the person who granted

the authority; and

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(iv) each serious Commonwealth offence or serious State

offence that has a federal aspect in respect of which

controlled conduct under the authority was to be

engaged in; and

(v) the period of effect of the authority; and

(vi) the identity of each person authorised to engage in

controlled conduct for the purposes of the controlled

operation; and

(vii) with respect to the law enforcement participants, the

nature of the controlled conduct that those participants

were authorised to engage in; and

(viii) with respect to the civilian participants, the particular

controlled conduct (if any) that each such participant

was authorised to engage in; and

(ix) if the authority was cancelled, the date and time of

cancellation; and

(x) the date and time the controlled operation began and the

date of completion of the operation; and

(xi) if the controlled operation involved illicit goods (to the

extent known), the nature and quantity of the illicit

goods and the route and all foreign countries through

which the illicit goods passed in the course of the

operation; and

(xii) details of any loss of or serious damage to property

(other than property of the law enforcement agency on

behalf of which the operation is conducted or a

participant in the operation) occurring in the course of

or as a direct result of the controlled operation; and

(xiii) details of any personal injuries occurring in the course

of or as a direct result of the operation; and

authorising officer of the agency:

(i) the date and time the variation was made; and

(ii) whether the variation was formal or urgent; and

(iii) the name and rank or position of the person who made

the variation.

(3) A register kept under this section is not a legislative instrument.

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15HR Appointment of inspecting officers

(1) The Ombudsman may appoint members of the Ombudsman's staff

to be inspecting officers for the purposes of this Part.

(2) An appointment under subsection (1) must be in writing.

15HS Inspection of records by the Ombudsman

(1) The Ombudsman must, from time to time and at least once every

12 months, inspect the records of each authorising agency to

determine the extent of compliance with this Part by the agency

and by law enforcement officers.

(2) The Ombudsman must also, from time to time and at least once

every 12 months, inspect the records of the ACC to determine the

extent of compliance with corresponding State controlled

operations laws, in relation to any authorities (within the meaning

of each such law):

(a) for which a law enforcement officer of the ACC applied; or

(b) that were granted to a law enforcement officer of the ACC;

unless the corresponding State controlled operations law provides

for the inspection of records of the ACC to determine the extent of

compliance with that law.

(3) For the purpose of an inspection under this section, the

Ombudsman:

(a) may, after notifying the chief officer of the agency, enter at

any reasonable time premises occupied by the agency; and

(b) is entitled to have full and free access at all reasonable times

to all records of the agency that are relevant to the inspection;

and

Ombudsman any information that the Ombudsman considers

necessary, being information that is in the member's

possession, or to which the member has access, and that is

relevant to the inspection; and

(d) may, despite any other law, make copies of, and take extracts

from, records of the agency.

(4) The chief officer must ensure that members of staff of the agency

give the Ombudsman any assistance the Ombudsman reasonably

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requires to enable the Ombudsman to perform functions under this

section.

(5) Nothing in this section requires the Ombudsman to inspect records

relating to operations that have not been completed at the time of

the inspection.

15HT Powe r to obtain relevant information

(1) If the Ombudsman has reasonable grounds to believe that a law

enforcement officer of a particular law enforcement agency

(whether or not the agency is an authorising agency) is able to give

information relevant to an inspection under this Division of an

authorising agency's records, subsections (2) and (3) have effect.

(2) The Ombudsman may, by writing given to the law enforcement

officer, require the officer to give the information to the

Ombudsman:

(a) by writing signed by the officer; and

(b) at a specified place and within a specified period.

(3) The Ombudsman may, by writing given to the law enforcement

officer, require the officer to attend:

(a) before a specified inspecting officer; and

(b) at a specified place; and

day;

to answer questions relevant to the inspection.

(4) If the Ombudsman:

(a) has reasonable grounds to believe that a law enforcement

officer of a particular law enforcement agency (whether or

not the agency is an authorising agency) is able to give

information relevant to an inspection under this Division of

an authorising agency's records; and

(b) does not know the officer's identity;

the Ombudsman may, by writing given to the chief officer of the

agency, require the chief officer, or a person nominated by the

chief officer, to attend:

(d) at a specified place; and

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(e) within a specified period or at a specified time on a specified

day;

to answer questions relevant to the inspection.

(5) The place, and the period or the time and day, specified in a

requirement under this section, must be reasonable having regard

to the circumstances in which the requirement is made.

15HU Offence

A person commits an offence if:

(a) the person is required under section 15HT to attend before an

inspecting officer, to give information or to answer questions;

and

(b) the person refuses or fails to do so.

Penalty: Imprisonment for 6 months.

15HV Ombudsman to be given information and access despite othe r

laws

(1) Despite any other law, a person is not excused from giving

information, answering a question, or giving access to a document,

as and when required under this Division, on the ground that giving

the information, answering the question, or giving access to the

document, as the case may be:

(a) would contravene a law; or

(b) would be contrary to the public interest; or

liable to a penalty; or

(d) would disclose one of the following:

(i) a legal advice given to a Minister, a Department or a

prescribed authority;

(ii) a communication between an officer of a Department or

of a prescribed authority and another person or body,

being a communication protected against disclosure by

legal professional privilege.

(2) However, if the person is a natural person:

(a) the information, the answer, or the fact that the person has

given access to the document, as the case may be; and

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(b) any information or thing (including a document) obtained as

a direct or indirect consequence of giving the information,

answering the question or giving access to the document;

is not admissible in evidence against the person except in a

proceeding by way of a prosecution for an offence against

section 15HK or 15HL of this Act or Part 7.4 or 7.7 of the

Criminal Code.

(3) Nothing in section 15HK or 15HL or in any other law prevents an

officer of an agency from:

(a) giving information to an inspecting officer (whether orally or

in writing and whether or not in answer to a question); or

(b) giving access to a record of the agency to an inspecting

officer;

for the purposes of an inspection under this Division of the

agency's records.

(4) Nothing in section 15HK or 15HL or in any other law prevents an

officer of an agency from making a record of information, or

causing a record of information to be made, for the purposes of

giving the information to a person as permitted by subsection (3).

(5) The fact that a person is not excused under subsection (1) from

giving information, answering a question or giving access to a

document does not otherwise affect a claim of legal professional

privilege that anyone may make in relation to that information,

answer or document.

(6) In this section:

prescribed authority has the same meaning as in the Ombudsman

Act 1976.

15HW Exchange of information between Ombudsman and State

inspecting authorities

(1) In this section:

State or Territory agency means a law enforcement agency of a

State or Territory within the meaning of a corresponding State

controlled operations law.

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State or Territory inspecting authority, in relation to a State or

Territory agency, means the authority that, under the law of the

State or Territory concerned, has the function of making

inspections of a similar kind to those provided for in section 15HS

when the State or Territory agency is exercising powers under a

corresponding State controlled operations law.

(2) The Ombudsman may give information that:

(a) relates to a State or Territory agency; and

(b) was obtained by the Ombudsman under this Division;

to the State or Territory inspecting authority in relation to the

agency.

(3) The Ombudsman may only give information to an authority under

subsection (2) if the Ombudsman is satisfied that the giving of the

information is necessary to enable the authority to perform its

functions in relation to the State or Territory agency.

(4) The Ombudsman may receive from a State or Territory inspecting

authority information relevant to the performance of the

Ombudsman's functions under this Division.

15HX Delegation by Ombudsman

(1) The Ombudsman may delegate:

(a) to an APS employee responsible to the Ombudsman; or

(b) to a person having similar oversight functions to the

Ombudsman under the law of a State or Territory or to an

employee responsible to that person;

all or any of the Ombudsman's powers under this Division other

than a power to report to the Minister.

(2) A delegate must, upon request by a person affected by the exercise

of any power delegated to the delegate, produce the instrument of

delegation, or a copy of the instrument, for inspection by the

person.

15HY Ombudsman not to be sued

The Ombudsman, an inspecting officer, or a person acting under an

inspecting officer's direction or authority, is not liable to an action,

suit or proceeding for or in relation to an act done, or omitted to be

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done, in good faith in the performance or exercise, or the purported

performance or exercise, of a function or power conferred by this

Division.

Division 5--Miscellaneous

15HZ Evidence of authorities

A document purporting to be an authority granted under

section 15GI or under a corresponding State controlled operations

law:

(a) is admissible in any legal proceedings; and

(b) in the absence of evidence to the contrary, is proof in any

proceedings (not being criminal or disciplinary proceedings

against a law enforcement officer) that the person granting

the authority was satisfied of the facts he or she was required

to be satisfied of to grant the authority.

15J Chief Executive Officer of Customs to be notified of certain

authorities

(1) This section applies if:

(a) an authority is granted under section 15GI by an AFP

authorising officer, an ACC authorising officer or an ACLEI

authorising officer; and

(b) the applicant for the authority believes that illicit goods

involved in the conduct of the operation may be dealt with by

Customs.

(2) The applicant must, as soon as practicable after the authority is

granted, notify the Chief Executive Officer of Customs, or a person

(the nominated person) nominated by him or her for the purposes

of this section, in writing of:

(a) the applicant's name; and

(b) the date on which the authority was granted; and

(i) the place or places at which the illicit goods will pass

into the control of Customs; and

(ii) the time or times when, and the day or days on which,

the illicit goods are expected to pass into the control of

Customs.

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(3) A failure to comply with this section does not affect the validity of

an authority.

Part IAC--Assumed Identities

Division 1--Preliminary

15K Definitions

In this Part:

acquire an assumed identity, means acquire evidence of the

assumed identity and includes taking steps towards acquiring

evidence of the identity.

agency means one or more of the following:

(a) an issuing agency;

(b) an intelligence agency;

authorised civilian means a person who is authorised under an

authority to acquire or use an assumed identity, but does not

include an officer of an intelligence agency, an officer of a law

enforcement agency, or a foreign officer.

authorised foreign officer means a foreign officer who is

authorised under an authority to acquire or use an assumed

identity.

authorised intelligence officer means an intelligence officer who

is authorised under an authority to acquire or use an assumed

identity.

authorised law enforcement officer means a law enforcement

officer who is authorised under an authority to acquire or use an

assumed identity.

authorised person means:

(a) an authorised civilian; and

(b) an authorised intelligence officer; and

(d) an authorised foreign officer.

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authority means an authority granted under section 15KB to

acquire and use an assumed identity, including the authority as

varied under section 15KE.

chief officer:

(a) of an intelligence agency--means the following:

(i) in relation to the Australian Security Intelligence

Organisation--the Director-General of Security;

(ii) in relation to the Australian Secret Intelligence

Service--the Director-General of Australian Secret

Intelligence Service; and

(b) of an issuing agency--means the chief executive officer

(however described) of the agency; and

(i) in relation to the Australian Federal Police--the

Commissioner of the Australian Federal Police;

(ii) in relation to Customs--the Chief Executive Officer of

Customs;

(iii) in relation to the ACC--the Chief Executive Officer of

the ACC;

(iv) in relation to the Australian Commission for Law

Enforcement Integrity--the Integrity Commissioner;

(v) in relation to the Australian Taxation Office--the

Commissioner of Taxation;

(vi) in relation to a Commonwealth agency specified in the

regulations for the purposes of the definition of law

enforcement agency--the officer specified in the

regulations as the chief officer of that agency.

Commonwealth agency means:

(a) the Commonwealth; or

(b) an authority of the Commonwealth.

Commonwealth government issuing agency means a

Commonwealth agency that issues evidence of identity and that is

named in an authority.

conduct includes any act or omission.

corresponding assumed identity law means:

(a) a law of a State or Territory; or

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(b) a provision or provisions of a law of a State or Territory;

prescribed by the regulations for the purposes of this definition.

corresponding authority means:

(a) an authority under a corresponding assumed identity law to

acquire or use an assumed identity; or

(b) an authority under a corresponding assumed identity law to

request the production of evidence of an assumed identity

from a Commonwealth government issuing agency.

doing a thing, includes failing to do the thing.

evidence of identity, means a document or other thing (such as a

driver's licence, birth certificate, credit card or identity card) that

evidences or indicates, or can be used to evidence or indicate, a

person's identity or any aspect of a person's identity.

foreign officer means an officer, however described, of an agency

that has responsibility for:

(a) law enforcement in a foreign country; or

(b) intelligence gathering for a foreign country; or

intelligence agency means:

(a) the Australian Security Intelligence Organisation;

(b) the Australian Secret Intelligence Service.

intelligence officer means:

(a) in relation to the Australian Security Intelligence

Organisation--an officer of the Australian Security

Intelligence Organisation; and

(b) in relation to the Australian Secret Intelligence Service--a

staff member of the Australian Secret Intelligence Service;

and includes a person who is seconded to an intelligence agency.

issuing agency means:

(a) a Commonwealth government issuing agency; or

(b) a non-Commonwealth government issuing agency.

jurisdiction means the Commonwealth or a State or Territory of

the Commonwealth.

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law enforcement agency means the following agencies:

(a) the Australian Federal Police;

(b) Customs;

(d) the Australian Commission for Law Enforcement Integrity;

(e) the Australian Taxation Office;

(f) any other Commonwealth agency specified in the

regulations.

law enforcement officer means:

(a) in relation to the Australian Federal Police--the

Commissioner of the Australian Federal Police, a Deputy

Commissioner of the Australian Federal Police, an AFP

employee or a special member of the Australian Federal

Police (all within the meaning of the Australian Federal

Police Act 1979); and

(b) in relation to Customs--an officer of Customs; and

and

(d) in relation to the Australian Commission for Law

Enforcement Integrity--a member of the staff of the

Australian Commission for Law Enforcement Integrity; and

(e) in relation to the Australian Taxation Office--a person

engaged under the Public Service Act 1999 and performing

duties in the Australian Taxation Office; and

(f) in relation to a Commonwealth agency specified in the

regulations for the purposes of the definition of law

enforcement agency--an officer specified in the regulations

as an officer of the agency;

and includes a person who is seconded to a law enforcement

agency, including (but not limited to) a member of the police force

or police service or a police officer (however described) of another

jurisdiction.

National Witness Protection Program means the program by that

name established by the Witness Protection Act 1994.

non-Commonwealth government issuing agency means a person,

body or entity (other than a Commonwealth government issuing

agency) that issues evidence of identity and that is named in an

authority.

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officer of an agency, includes a person employed or engaged in the

agency.

originating agency:

(a) in relation to the transfer of an authority under subsection

15KV(1)--has the meaning given by that subsection; and

(b) in relation to the transfer of an authority under subsection

15KV(2)--has the meaning given by that subsection.

participating jurisdiction means a jurisdiction in which a

corresponding assumed identity law is in force.

receiving agency:

(a) in relation to the transfer of an authority under subsection

15KV(1)--has the meaning given by that subsection; and

(b) in relation to the transfer of an authority under subsection

15KV(2)--has the meaning given by that subsection.

supervisor of an authorised civilian means the law enforcement

officer or the intelligence officer who supervises or is to supervise

the acquisition or use of an assumed identity by the authorised

civilian.

use an assumed identity, includes representing (whether expressly

or impliedly, or by saying or doing something) the assumed

identity to be real when it is not.

Division 2--Authority for Assumed Identity

15KA Application for authority to acquire or use assumed identity

(1) A law enforcement officer of a law enforcement agency may apply

to the chief officer mentioned in subsection (2) for an authority for

the officer or any other person to do either or both of the following:

(a) acquire an assumed identity;

(b) use an assumed identity.

(2) An application by a law enforcement officer of a law enforcement

agency under subsection (1) is to be made to:

(a) if the person who is to acquire or use the assumed identity is

a foreign officer, or the assumed identity is to be used in a

foreign country:

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(i) if the applicant is a member of the staff of the ACC--

the chief officer of the ACC; or

(ii) in any other case--the chief officer of the Australian

Federal Police; or

(b) in any other case--the chief officer of the law enforcement

agency.

(3) An intelligence officer of an intelligence agency may apply to the

chief officer of the agency for an authority for the officer or any

other person (including a foreign officer) to do either or both of the

following:

(a) acquire an assumed identity;

(b) use an assumed identity.

(4) A separate application must be made in respect of each assumed

identity to be acquired or used.

(5) An application:

(a) must be in writing in the form approved by the chief officer;

and

(b) must contain:

(i) the name of the applicant; and

(ii) the name of the person to be authorised to acquire or use

an assumed identity (if not the applicant); and

(iii) if the person referred to in subparagraph (ii) is not an

officer of either an intelligence agency or a law

enforcement agency or a foreign officer--the name and

rank or position of the person proposed to be appointed

as supervisor and an explanation of why it is necessary

for a person who is not an officer to acquire or use the

assumed identity; and

(iv) details of the proposed assumed identity; and

(v) reasons for the need to acquire or use an assumed

identity; and

(vi) if the assumed identity is necessary for a purpose

mentioned in subparagraph 15KB(2)(a)(i) or (ii)--

details of the investigation or intelligence-gathering

exercise in which the assumed identity will be used (to

the extent known); and

(vii) details of any issuing agencies and the types of evidence

to be issued by them; and

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(viii) details of any application of a kind referred to in

section 15KG (making entries in register of births,

deaths or marriages) that is to be made under a

corresponding assumed identity law.

(6) The chief officer may require the applicant to give such additional

information concerning the application as is necessary for the chief

officer's proper consideration of the application.

Note:

The chief officer may delegate functions under this section--see

section 15LH.

15KB Determination of applications

(1) After considering an application for an authority to acquire or use

an assumed identity, and any additional information under

subsection 15KA(6), the chief officer:

(a) may grant an authority to acquire or use the assumed identity,

either unconditionally or subject to conditions; or

(b) may refuse the application.

(2) An authority to acquire or use an assumed identity may not be

granted unless the chief officer is satisfied on reasonable grounds:

(a) that the assumed identity is necessary for one or more of the

following purposes:

(i) investigation of, or intelligence gathering in relation to,

criminal activity (whether a particular criminal activity

or criminal activity generally);

(ii) the exercise of powers and performance of functions of

an intelligence agency;

(iii) the exercise of powers and performance of functions for

the purposes of the National Witness Protection

Program;

(iv) the training of persons for any of the purposes

mentioned in subparagraphs (i) to (iii);

(v) any administrative function in support of any of the

purposes mentioned in subparagraphs (i) to (iv); and

(b) that the risk of abuse of the assumed identity by the

authorised person is minimal; and

for a person who is not an officer of either an intelligence

agency or a law enforcement agency--that it would be

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impossible or impracticable in the circumstances for an

officer to acquire or use the assumed identity for the purpose

sought.

(3) If an authority is granted for an authorised civilian, the chief officer

must appoint an officer of the law enforcement agency or the

intelligence agency (as the case may be) to supervise the

acquisition or use of the assumed identity by the authorised

civilian.

(4) The officer appointed as supervisor must be:

(a) in the case of the Australian Federal Police--a person who

holds the rank of sergeant or an equivalent or higher rank; or

(b) in the case of Customs--a person who holds the position, or

performs the duties, of a Customs Level 4 officer, or an

equivalent or higher position, in Customs; or

performs the duties, of either a senior investigator or of an

APS Executive Level 1 position, or an equivalent or higher

position, in the ACC; or

(d) in the case of the Australian Commission for Law

Enforcement Integrity--a staff member of the Australian

Commission for Law Enforcement Integrity who is

authorised in writing by the Integrity Commissioner to act as

a supervisor; or

(e) in the case of the Australian Taxation Office--a person who

holds the position, or performs the duties, of an APS

Executive Level 2 position, or an equivalent or higher

position, in the Australian Taxation Office; or

(f) in the case of the Australian Security Intelligence

Organisation--a person who holds the position, or performs

the duties, of an ASIO Executive Officer Level 1 position, or

an equivalent or higher position, in the Australian Security

Intelligence Organisation; or

(g) in the case of the Australian Secret Intelligence Service--an

intelligence officer of the Australian Secret Intelligence

Service who is determined by the Director-General of the

Australian Secret Intelligence Service.

(5) An authority may also authorise any one or more of the following:

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(a) an application of a kind referred to in section 15KG for an

order for an entry in a register of births, deaths or marriages

under a corresponding assumed identity law;

(b) a request under section 15KI or 15KX;

(6) However, the chief officer of the ACC, the chief officer of the

Australian Federal Police or the chief officer of an intelligence

agency may only authorise the use of the assumed identity in a

foreign country if he or she is satisfied that it is reasonably

necessary to do so.

Note:

This subsection does not affect any obligation to obtain authority to

use the assumed identity in the foreign country.

(7) A separate authority is required for each assumed identity.

Note:

The chief officer may delegate functions under this section--see

section 15LH.

(8) An authority is not a legislative instrument.

15KC Form of authority

(1) An authority must be:

(a) in writing in the form approved by the chief officer; and

(b) signed by the person granting it.

(2) An authority must state the following:

(a) the name of the person granting the authority;

(b) the date of the authority;

(d) details of any evidence of the assumed identity that may be

acquired under the authority;

(e) the conditions (if any) to which the authority is subject;

(f) why the authority is granted;

(g) if the authority relates to an authorised intelligence officer, an

authorised law enforcement officer or a foreign officer--the

name of the officer;

(h) if the authority relates to an authorised civilian whose

supervisor is a law enforcement officer:

(i) the name of the authorised civilian; and

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(ii) the name of his or her supervisor under the authority;

and

(iii) the period for which the authority will remain in force,

being a period not exceeding 3 months;

(i) if the authority relates to an authorised civilian whose

supervisor is an intelligence officer:

(i) the name of the authorised civilian; and

(ii) the name of his or her supervisor under the authority.

(3) The authority must also state the following:

(a) each issuing agency to which a request may be made under

section 15KI or 15KX;

(b) whether it authorises an application under a corresponding

assumed identity law for an order for an entry in a register of

births, deaths or marriages;

country and the reasons for the need for this use.

Note:

The chief officer may delegate functions under this section--see

section 15LH.

(4) To avoid doubt, subparagraph (2)(h)(iii) does not prevent the grant

of one or more further authorities in relation to an authorised

civilian.

15KD Period of authority

(1) An authority for an authorised person (other than an authorised

civilian of a kind covered by paragraph 15KC(2)(h)) remains in

force until cancelled under section 15KE.

(2) An authority for an authorised civilian of a kind covered by

paragraph 15KC(2)(h) remains in force until the end of the period

specified in the authority in accordance with subparagraph

15KC(2)(h)(iii), unless the authority is cancelled sooner under

section 15KE.

15KE Variation or cancellation of authority

(1) The chief officer of an agency:

(a) may, at any time, vary or cancel an authority that was granted

by the chief officer of the agency; and

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(b) must cancel the authority if the chief officer is satisfied (on a

review under section 15KF or otherwise) that use of the

assumed identity is no longer necessary.

Note:

Section 15KW modifies the effect of this provision if control of the

authority is transferred.

(2) The chief officer must give written notice of the variation or

cancellation to:

(a) where practicable, the authorised person to whom it relates;

and

(b) if the authorised person is an authorised civilian--the

authorised person's supervisor.

(3) The notice must state why the authority is varied or cancelled.

(4) The variation or cancellation takes effect:

(a) if the written notice is given to the authorised person and the

authorised person is not an authorised civilian--on the day

the written notice is given to the authorised person or, if a

later day is stated in the notice, on the later day; or

(b) if the authorised person is an authorised civilian and the

written notice is given to the authorised person's

supervisor--on the day the written notice is given to the

authorised person's supervisor or, if a later day is stated in

the notice, on the later day; or

Note 1:

The chief officer may delegate functions under this section--see

section 15LH.

Note 2:

Despite the variation or cancellation of an authority, a person is, in

certain circumstances, protected from prosecution for offences even if

the person is unaware of the variation or cancellation--see

section 15KU.

(5) A variation of an authority is not a legislative instrument.

15KF Yearly revie w of authority

(1) The chief officer of an agency must periodically review each

authority granted by the chief officer or a delegate of the chief

officer under this Part.

(2) A review of an authority under this section is to be conducted:

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(a) in the case of an authority granted by the chief officer or a

delegate of the chief officer of an intelligence agency to an

authorised intelligence officer--at least once every 3 years;

(b) in all other cases--at least once every 12 months.

Note:

Section 15KW modifies the effect of this provision if control of the

authority is transferred.

(3) The purpose of a review is to determine whether use of the

assumed identity under the authority is still necessary.

(4) If the chief officer is satisfied on a review that use of the assumed

identity under the authority is no longer necessary, he or she must

cancel the authority under section 15KE.

(5) If the chief officer is satisfied on a review that use of the assumed

identity under the authority is still necessary, he or she must record

his or her opinion, and the reasons for it, in writing.

Note:

The chief officer may delegate functions under this section--see

section 15LH.

(6) Failure to comply with the requirements of this section does not

invalidate an authority or anything lawfully done under the

authority.

15KG Making entries in register of births, deaths or marriages

The chief officer of:

(a) a law enforcement agency; or

(b) an intelligence agency;

may apply, under a corresponding assumed identity law, to the

Supreme Court of a State or Territory of a participating jurisdiction

for an order that an entry be made in a register of births, deaths or

marriages under the relevant law of that jurisdiction in relation to

the acquisition of an assumed identity under an authority or

corresponding authority.

15KH Effect of authority ceasing to be in force on register of births,

deaths or marriages

(1) This section applies if:

(a) an authority for an assumed identity ceases to be in force; and

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(b) there is an entry in relation to that assumed identity in a

under a corresponding assumed identity law.

(2) The chief officer must apply for an order under the corresponding

assumed identity law to cancel the entry within 28 days after the

day the authority ceases to be in force.

Division 3--Evidence of Assumed Identity

15KI Request for evidence of assumed identity

(1) This section applies if an authority granted under section 15KB

authorises a request under this section.

(2) The chief officer of a law enforcement agency or an intelligence

agency who grants the authority may request the chief officer of an

issuing agency stated in the authority to:

(a) produce evidence of an assumed identity in accordance with

the authority; and

(b) give evidence of the assumed identity to the following:

(i) the authorised person named in the authority;

(ii) an officer of the law enforcement agency or the

intelligence agency specified by the chief officer of that

agency in the request.

Note:

Section 15KW modifies the effect of this provision if control of the

authority is transferred.

(3) The request must state a reasonable period for compliance with the

request.

(4) The request must include:

(a) the date of the authority granted under section 15KB; and

(b) details of the assumed identity authorised; and

acquired under the authority.

(5) A request must not be made under this section for an entry in a

(6) In this section:

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evidence means evidence similar to that ordinarily produced or

given by the issuing agency.

Note:

The chief officer may delegate functions under this section--see

section 15LH.

15KJ Government issuing agencies to comply with request

The chief officer of a Commonwealth government issuing agency

who receives a request under section 15KI must comply with the

request within the reasonable period stated in the request.

15KK Non-government issuing agencies may comply with request

The chief officer of a non-Commonwealth government issuing

agency who receives a request under section 15KI may comply

with the request.

15KL Cancellation of evidence of assumed identity

(1) The chief officer of an issuing agency who produces evidence of

an assumed identity under this Part must cancel the evidence if

directed in writing to do so by the chief officer who requested the

evidence.

Note 1:

The chief officer who requested the evidence may delegate functions

under this section--see section 15LH.

Note 2:

Section 15KW modifies the effect of this provision if control of the

authority is transferred.

(2) In this section:

cancel includes delete or alter an entry in a record of information.

15KM Return of evidence of assumed identity

(1) This section applies if an authority for a person to acquire or use an

assumed identity ceases to be in force.

(2) The chief officer of a law enforcement agency or the chief officer

of an intelligence agency may, in writing, request the person to

return to the chief officer any evidence of the assumed identity

acquired under the authority.

(3) A person commits an offence if:

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(a) a request has been made to the person under subsection (2);

and

(b) the person fails to comply with the request.

Penalty: 10 penalty units.

15KN Protection from criminal liability--office rs of issuing agencies

The chief officer, or an officer, of an issuing agency who does

something that, apart from this section, would be a Commonwealth

offence or an offence against a law of a State or Territory, is not

criminally responsible for the offence if the thing is done to

comply with a request under section 15KI or a direction under

section 15KL.

15KO Indemnity for issuing agencies and officers

(1) This section applies if the chief officer of either a law enforcement

agency or an intelligence agency makes a request under

section 15KI or gives a direction under section 15KL to the chief

officer of an issuing agency.

(2) The Commonwealth must indemnify the issuing agency, or an

officer of the issuing agency, for any liability incurred by the

agency or officer (including reasonable costs) if:

(a) the liability is incurred because of something done by the

agency or officer in the course of duty to comply with the

request or direction in the course of duty; and

(b) any requirements prescribed under the regulations have been

met.

Division 4--Effect of Authority

15KP Assume d identity may be acquired and used

A person may acquire or use an assumed identity if:

(a) the person is an authorised person (other than an authorised

civilian) and the acquisition or use is:

(i) in accordance with an authority; and

(ii) in the course of duty; or

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(b) the person is an authorised civilian and the acquisition or use

is in accordance with:

(i) an authority; and

(ii) any direction by the person's supervisor under the

authority.

15KQ Protection from criminal liability--authorised persons

If an authorised person does something that, apart from this

section, would be a Commonwealth offence or an offence under a

law of a State or Territory, the person is not criminally responsible

for the offence if:

(a) the thing is done in the course of acquiring or using an

assumed identity in accordance with an authority; and

(b) the thing is done:

(i) in the case of an authorised intelligence officer, an

authorised law enforcement officer or an authorised

foreign officer--in the course of his or her duty; or

(ii) in the case of an authorised civilian--in accordance

with any direction by his or her supervisor under the

authority; and

identity were the person's real identity.

15KR Protection from criminal liability--third parties

If a person does something that, apart from this section, would be a

Commonwealth offence or an offence under a law of a State or

Territory, the person is not criminally responsible for the offence

if:

(a) the person is a Commonwealth officer; and

(b) the thing is done in the course of the person's duty; and

doing of the thing; and

(d) if an authorised person had done the thing in accordance with

an authority, the authorised person would not have been

criminally responsible for the offence because of the

application of section 15KQ.

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15KS Inde mnity for authorised persons

(1) This section applies if the chief officer of either a law enforcement

agency or an intelligence agency grants an authority.

(2) The Commonwealth must indemnify the authorised person under

the authority for any liability incurred by the person (including

reasonable costs) because of something done by the person if:

(a) the thing is done in the course of acquiring or using an

assumed identity in accordance with the authority; and

(b) the thing is done:

(i) in the case of an authorised intelligence officer, an

authorised law enforcement officer or an authorised

foreign officer--in the course of his or her duty; or

(ii) in the case of an authorised civilian--in accordance

with any direction by his or her supervisor under the

authority; and

met.

15KT Particular qualifications

(1) Sections 15KQ, 15KR and 15KS do not apply to anything done by

an authorised person if:

(a) a particular qualification is needed to do the thing; and

(b) the person does not have that qualification.

(2) Subsection (1) applies whether or not the person has acquired, as

evidence of an assumed identity, a document that indicates that he

or she has that qualification.

Example: An officer who cannot fly a plane is not authorised to fly even though

he or she has acquired a pilot's licence under an assumed identity.

15KU Effect of being unaware of variation or cancellation of

authority

(1) If an authority has been varied in a way that limits its scope, this

Part continues to apply to the authorised person to whom it relates

as if it had not been varied in that way, for as long as the person:

(a) is unaware of the variation; and

(b) is not reckless about the existence of the variation.

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(2) If an authority has been cancelled, this Part continues to apply to

the authorised person to whom it related as if it had not been

cancelled, for as long as the person:

(a) is unaware of the cancellation; and

(b) is not reckless about the existence of the cancellation.

(3) For the purposes of this section, a person is reckless about the

existence of the variation or cancellation of an authority or

authorisation if:

(a) the person is aware of a substantial risk that the variation or

cancellation has happened; and

(b) having regard to the circumstances known to the person, it is

unjustifiable to take the risk that the authority has not been

varied or cancelled.

15KV Transfer of control of authorities

(1) The chief officer of an intelligence agency (the originating

agency) may agree in writing with the chief officer of another

intelligence agency (the receiving agency) to transfer control of an

authority to the chief officer of the receiving agency if:

(a) the authority was granted by the chief officer of the

originating agency; or

(b) control of the authority was transferred to the chief officer of

the originating agency under a previous application of this

subsection.

Note:

The chief officer may delegate functions under this section--see

section 15LH.

(2) The chief officer of a law enforcement agency (the originating

agency) may agree in writing with the chief officer of another law

enforcement agency (the receiving agency) to transfer control of

an authority to the chief officer of the receiving agency if:

(a) the authority was granted by the chief officer of the

originating agency; or

(b) control of the authority was transferred to the chief officer of

the originating agency under a previous application of this

subsection.

Note:

The chief officer may delegate functions under this section--see

section 15LH.

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(3) The chief officer of the originating agency must give the chief

officer of the receiving agency a written document setting out:

(a) whether the authority has been reviewed under section 15KF,

and if so, when a review was last conducted; and

(b) whether control of the authority has previously been

transferred under this section, and if so:

(i) the date of each such transfer; and

(ii) the name of the originating agency and receiving agency

in relation to each such transfer.

(4) Control of the authority is transferred at the time when the chief

officer of the receiving agency signs and dates a copy of the

authority.

(5) Despite subsection (4), if the authority relates to an authorised

civilian, control of the authority is not transferred until the chief

officer of the receiving agency appoints an officer of that agency to

be the authorised civilian's supervisor.

(6) The chief officer of the receiving agency must vary the authority in

accordance with section 15KE to state the name of the supervisor

appointed under subsection (5).

(7) Control of an authority must not be transferred under this section

if:

(a) the person who is to acquire or use the assumed identity, or

who has acquired or used the assumed identity, is a foreign

officer authorised to acquire or use the assumed identity by

the chief officer of a law enforcement agency; or

(b) the assumed identity is to be, is being or has been used in a

foreign country and the authority was granted by the chief

officer of a law enforcement agency.

15KW Consequences of transfer of control of authorities

(1) This section sets out the consequences of the transfer of control of

an authority under section 15KV.

(2) The authority continues to be in force after the transfer.

(3) The following provisions have effect, after the transfer, as if the

chief officer of the receiving agency had granted the authority

instead of the chief officer of the originating agency:

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(a) section 15KE (which deals with variation and cancellation of

authorities);

(b) section 15KF (which deals with review of authorities);

evidence of assumed identities).

(4) To avoid doubt, the obligation under section 15KF, as that section

has effect because of subsection (3), for the chief officer of the

receiving agency to review the authority, only arises:

(a) in the case of an authority transferred under subsection

15KV(1):

(i) 3 years after the last review of the authority by the chief

officer of an intelligence agency; or

(ii) if no such review has been undertaken--3 years after

the authority was granted; and

(b) in the case of an authority transferred under subsection

15KV(2):

(i) 12 months after the last review of the authority by the

chief officer of a law enforcement agency; or

(ii) if no such review has been undertaken--12 months after

the authority was granted.

(5) Section 15KL (which deals with cancellation of evidence of

assumed identity) has effect as if the chief officer of the receiving

agency had made the request under section 15KI.

Division 5--Mutual Recognition under Corresponding

Laws

15KX Requests to a participating jurisdiction for evidence of

assumed identity

(1) This section applies if an authority granted under section 15KB

authorises a request under this section.

(2) The chief officer of a law enforcement agency or an intelligence

agency who grants the authority may request the chief officer of an

issuing agency of a participating jurisdiction stated in the authority

to:

(a) produce evidence of the assumed identity in accordance with

the authority; and

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(b) give evidence of the assumed identity to the following:

(i) the authorised person named in the authority;

(ii) an officer of the law enforcement agency or the

intelligence agency who is named in the request.

Note 1:

The chief officer may delegate functions under this section--see

section 15LH.

Note 2:

Section 15KW modifies the effect of this provision if control of the

authority is transferred.

(3) The request must state that it is a request under this section.

(4) A request must not be made under this section for an entry in a

15KY Requests from a participating jurisdiction for evidence of

assumed identity

(1) This section applies if:

(a) an authority under a corresponding assumed identity law

authorises a request for:

(i) the production of evidence of an assumed identity from

a Commonwealth government issuing agency; and

(ii) the giving of evidence of the assumed identity to the

authorised person named in the authority; and

(b) the request is made to the chief officer of the Commonwealth

government issuing agency; and

request.

(2) Subject to subsection (3), the chief officer of the agency who

receives the request must comply with the request within the

reasonable period stated in the request.

(3) This section does not require any of the following to comply with a

request made as mentioned in paragraph (1)(b):

(a) the chief officer of an intelligence agency;

(b) the chief officer of the Defence Signals Directorate;

Organisation.

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15KZ Directions from a participating jurisdiction to cancel evidence

of assumed identity

(1) The chief officer of an issuing agency who produces evidence of

an assumed identity because of a request mentioned in

section 15KY must cancel the evidence if directed in writing to do

so by the chief officer who authorised the request.

(2) In this section:

cancel includes delete or alter an entry in a record of information.

15L Indemnity for issuing agencies and office rs

(1) This section applies if the chief officer of either a law enforcement

agency or an intelligence agency makes a request to the chief

officer of an issuing agency of a participating jurisdiction under

section 15KX.

(2) The agency that makes the request must indemnify the issuing

agency and any officer of the issuing agency, for any liability

incurred by the issuing agency or the officer of the issuing agency

(including reasonable costs) if:

(a) the liability is incurred because of something done in the

course of duty by the issuing agency or the officer of the

issuing agency to comply with the request; and

(b) any requirements prescribed under the regulations have been

met.

15LA Application of this Part to authorities under corresponding

laws

(1) The following provisions apply to anything done in relation to a

corresponding authority as if it were an authority granted under

section 15KB:

(a) section 15KP (assumed identity may be acquired and used);

(b) section 15KT (particular qualifications);

cancellation of authority);

(d) section 15LB (misuse of assumed identity);

(e) section 15LC (disclosing information about assumed

identity).

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(2) Sections 15KN, 15KQ and 15KR apply to anything done in

relation to a corresponding authority as if:

(a) the corresponding authority were an authority granted under

section 15KB; and

(b) references in those sections to an offence under a law of a

State or Territory were omitted.

Division 6--Compliance and Monitoring

Subdivision A--Misuse of Assumed Identity and Information

15LB Misuse of assumed identity

(1) A person commits an offence if:

(a) the person is an authorised person (other than an authorised

civilian); and

(b) the person acquires evidence of, or uses, an assumed identity;

and

(i) in accordance with an authority; and

(ii) in the course of duty; and

(d) the person is reckless as to the circumstance mentioned in

paragraph (c).

Penalty: Imprisonment for 2 years.

(2) An authorised civilian commits an offence if:

(a) the authorised civilian acquires evidence of, or uses, an

assumed identity; and

(b) the acquisition or use is not in accordance with both:

(i) an authority; and

(ii) the directions of the authorised civilian's supervisor

under the authority; and

mentioned in paragraph (b).

Penalty: Imprisonment for 2 years.

15LC Disclosing information about assumed identity

(1) A person commits an offence if:

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(a) the person engages in conduct; and

(b) the conduct causes the disclosure of information; and

person has acquired, will acquire, is using or has used an

assumed identity.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct causes the disclosure of information; and

person has acquired, will acquire, is using or has used an

assumed identity; and

(d) the person is reckless as to whether his or her conduct will

endanger the health or safety of any person.

Penalty: Imprisonment for 10 years.

(3) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct causes the disclosure of information; and

person has acquired, will acquire, is using or has used an

assumed identity; and

(d) the person is reckless as to whether his or her conduct will

prejudice the effective conduct of an investigation or

intelligence-gathering in relation to criminal activity.

Penalty: Imprisonment for 10 years.

(4) A person does not commit an offence under subsection (1), (2) or

(3) if the person causes the disclosure of information mentioned in

paragraph (1)(c), (2)(c) or (3)(c) (as the case may be) and the

disclosure is:

(a) in connection with the administration or execution of this

Part or a corresponding assumed identity law; or

(b) for the purposes of any legal proceeding arising out of or

otherwise related to this Part or a corresponding assumed

identity law or of any report of any such proceedings; or

for the purposes of a legal proceeding; or

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(d) in accordance with the exercise of powers or performance of

functions of a law enforcement agency or an intelligence

agency; or

(e) in accordance with any requirement imposed by law.

Note 1:

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

subsection (4)--see subsection 13.3(3) of the Criminal Code.

Note 2:

The mere existence of an exception under subsection (4) does not

mean that a person might not commit an offence under a provision of

another Act (such as section 39 or 41 of the Intelligence Services Act

2001) if the person causes the disclosure of information mentioned in

paragraph (1)(c), (2)(c) or (3)(c).

Subdivision B--Reporting and record-keeping

15LD Reports about authorities for assumed identities etc.--law

enforcement agencies

(1) As soon as practicable after the end of each financial year, the

chief officer of a law enforcement agency must submit a report to

the Minister that includes the following information for the year:

(a) the number of authorities granted during the year;

(b) a general description of the activities undertaken by

authorised civilians and authorised law enforcement officers

when using assumed identities under this Part during the

year;

during the year;

(d) the number of authorities of which control was transferred by

the chief officer under section 15KV during the year;

(e) the number of authorities of which control was transferred to

the chief officer under section 15KV during the year;

(f) a statement whether or not any fraud or other unlawful

activity was identified by an audit under section 15LG during

the year;

(g) any other information relating to authorities and assumed

identities and the administration of this Part that the Minister

considers appropriate.

(2) The chief officer must advise the Minister of any information in

the report that, in the chief officer's opinion, should be excluded

from the report before the report is laid before the Parliament

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because the information, if made public, could reasonably be

expected to:

(a) endanger a person's safety; or

(b) prejudice an investigation or prosecution; or

activities or methodologies.

(3) The Minister must exclude information from the report if satisfied

on the advice of the chief officer of any of the grounds set out in

subsection (2) and must cause a copy of the report to be laid before

each House of the Parliament within 15 sitting days of that House

after the day on which the Minister receives the report.

15LE Reports about authorities for assumed identities etc.--

intelligence agencies

As soon as practicable after the end of each financial year, the

chief officer of an intelligence agency must submit a report to the

Inspector-General of Intelligence and Security (the

Inspector-General) that includes the following information for the

year:

(a) the number of authorities granted during the year;

(b) a general description of the activities undertaken by

authorised civilians and authorised intelligence officers when

using assumed identities under this Part during the year;

during the year;

(d) the number of authorities of which control was transferred by

the chief officer under section 15KV during the year;

(e) the number of authorities of which control was transferred to

the chief officer under section 15KV during the year;

(f) a statement whether or not any fraud or other unlawful

activity was identified by an audit under section 15LG during

the year;

(g) any other information relating to authorities and assumed

identities and the administration of this Part that the

Inspector-General considers appropriate.

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15LF Record keeping

(1) The chief officer of either a law enforcement agency or an

intelligence agency must keep appropriate records about the

operation of this Part in respect of the agency.

(2) The records must include the following, in respect of authorities

granted, varied or cancelled under this Part in respect of the

agency:

(a) the date on which an authority was granted, varied or

cancelled and the name of the person who granted, varied or

cancelled it;

(b) the name of the authorised person under the authority,

together with details of the assumed identity to which the

authority applies;

section 15KI or 15KX (request for evidence of assumed

identity) in respect of the authority;

(d) the general nature of the duties undertaken by the authorised

person under the assumed identity;

(e) general details of relevant financia l transactions entered into

using the assumed identity;

(f) details of reviews of the authority under section 15KF (yearly

review of authority).

(3) The records must include the following in respect of authorities the

control of which has been transferred to or from the chief officer of

the agency under section 15KV:

(a) the names of the chief officers of the originating agency and

the receiving agency in relation to the transfer;

(b) the name of the originating agency and the receiving agency

in relation to the transfer;

(d) if control of the authority had previously been transferred

under section 15KV:

(i) the date of each such transfer; and

(ii) the name of the originating agency and receiving agency

in relation to each such transfer.

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15LG Audit of records

(1) The chief officer of either a law enforcement agency or an

intelligence agency must cause the records kept under

section 15LF for each authority in respect of the agency to be

audited:

(a) at least once every 6 months while the authority is in force;

and

(b) at least once in the 6 months after the cancellation or expiry

of the authority.

(2) The audit is to be conducted by a person appointed by the chief

officer.

(3) The person appointed to conduct the audit:

(a) may, but need not be, an officer of the agency; and

(b) must not be a person:

(i) who granted, varied or cancelled any of the authorities

to which the records under section 15LF relate; or

(ii) to whom control of any of the authorities to which the

records under section 15LF relate was transferred; or

(iii) who is or was an authorised person under any of the

authorities to which those records relate.

(4) The results of an audit must be reported to the chief officer.

Division 7--General

15LH Delegation of chief officer's functions

(1) Except as provided by this section (and despite any other Act or

law to the contrary) the functions of a chief officer under this Part

may not be delegated to any other person.

(2) A chief officer may delegate to a senior officer of the law

enforcement agency or the intelligence agency (as the case may be)

any of the chief officer's functions under this Part relating to the

granting, variation, cancellation and transfer of control of

authorities (including, but not limited to conducting reviews under

section 15KF, making applications under section 15KG, giving

directions under section 15KL and making requests under

section 15KI or 15KX).

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(3) In this section:

senior officer means:

(a) in relation to the Australian Federal Police:

(i) any senior executive AFP employee of the Australian

Federal Police within the meaning of section 25 of the

Australian Federal Police Act 1979; or

(ii) any Deputy Commissioner of Police within the meaning

of section 6 of the Australian Federal Police Act 1979;

(iii) a person occupying a position in the Australian Federal

Police that is equivalent to or higher than the positions

mentioned in subparagraphs (i) and (ii); and

(b) in relation to Customs--any SES employee who is a member

of the staff of Customs within the meaning of section 15 of

the Customs Administration Act 1985, or a person occupying

an equivalent or higher position in Customs; and

of the staff of the ACC within the meaning of section 47 of

the Australian Crime Commission Act 2002, or a person

occupying an equivalent or higher position in the ACC; and

(d) in relation to the Australian Commission for Law

Enforcement Integrity:

(i) the Assistant Integrity Commissioner; or

(ii) a staff member of the Australian Commission for Law

Enforcement Integrity who is an SES employee, or a

person occupying an equivalent or higher position in the

Australian Commission for Law Enforcement Integrity,

and who is authorised in writing by the Integrity

Commissioner for the purposes of this provision; and

(e) in relation to the Australian Taxation Office--any Deputy

Commissioner as defined in section 2 of the Taxation

Administration Act 1953, or a person occupying an

equivalent or higher position in the Australian Taxation

Office; and

(f) in relation to the Australian Security Intelligence

Organisation--any senior officer of the Australian Security

Intelligence Organisation as defined in section 24 of the

Australian Security Intelligence Organisation Act 1979, or a

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person occupying an equivalent or higher position in the

Australian Security Intelligence Organisation; and

(g) in relation to the Australian Secret Intelligence Service

(ASIS)--a senior ASIS intelligence officer designated by the

Deputy Director-General of ASIS, or a person occupying an

equivalent or higher position in ASIS.

Part IACA--Witness identity protection for

operatives

Division 1--Preliminary

15M Definitions

(1) In this Part:

assumed name of an operative has the meaning given by paragraph

15MG(1)(a)(i).

chief officer:

(a) of an intelligence agency--means the following:

(i) in relation to the Australian Security Intelligence

Organisation--the Director-General of Security;

(ii) in relation to the Australian Secret Intelligence

Service--the Director-General of Australian Secret

Intelligence Service; and

(b) of a law enforcement agency--means the following:

(i) in relation to the Australian Federal Police--the

Commissioner of the Australian Federal Police;

(ii) in relation to Customs--the Chief Executive Officer of

Customs;

(iii) in relation to the ACC--the Chief Executive Officer of

the ACC;

(iv) in relation to the Australian Commission for Law

Enforcement Integrity--the Integrity Commissioner;

(v) in relation to the Australian Taxation Office--the

Commissioner of Taxation.

conduct includes any act or omission.

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corresponding witness identity protection certificate means a

certificate given under a provision of a corresponding witness

identity protection law that corresponds to section 15ME.

corresponding witness identity protection law means:

(a) a law of a State or Territory; or

(b) a provision or provisions of a law of a State or Territory;

prescribed by the regulations for the purposes of this definition.

court includes any tribunal or person authorised by law or consent

of parties to receive evidence.

court name for an operative in relation to a proceeding, means a

name (other than the operative's real name) or code used to

identify the operative in the proceeding.

false representation does not include a representation made under

an authority under:

(a) Part IAB (about controlled operations); or

(b) Part IAC (about assumed identities).

intelligence agency means the following:

(a) the Australian Security Intelligence Organisation;

(b) the Australian Secret Intelligence Service.

investigation means an investigation in relation to criminal

activity, including an investigation extending beyond the

Commonwealth.

jurisdiction means the Commonwealth or a State or Territory of

the Commonwealth.

law enforcement agency means the following:

(a) the Australian Federal Police;

(b) Customs;

(d) the Australian Commission for Law Enforcement Integrity;

(e) the Australian Taxation Office;

(f) any other Commonwealth agency specified in the

regulations.

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National Witness Protection Program means the Program by that

name established by the Witness Protection Act 1994.

operative means a person who is or was:

(a) a participant in a controlled operation authorised under

Part IAB; or

(b) authorised to acquire and use an assumed identity under

Part IAC.

party to a proceeding, means:

(a) for a criminal proceeding--the prosecutor and each accused

person; or

(b) for a civil proceeding--each person who is a party to the

proceeding.

presiding officer in relation to a proceeding, means the person

constituting the court, or presiding over the court, in the

proceeding.

proceeding means any criminal, civil or other proceeding or

inquiry, reference or examination in which by law or consent of

parties evidence is or may be given, and includes an arbitration.

professional misconduct means fraud, negligence, default, breach

of trust, breach of duty, breach of discipline or any other

misconduct in the course of duty.

security has the meaning given by section 4 of the Australian

Security Intelligence Organisation Act 1979.

witness identity protection certificate means a certificate given

under section 15ME.

(2) For the purposes of this Part:

(a) anything permitted to be done by a party to a proceeding may

be done by the party's lawyer; and

(b) any requirement to give something to a party to a proceeding

is satisfied by giving the thing to the party's lawyer.

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15MA Meaning of criminal proceeding

(1) In this Part, criminal proceeding means a proceeding for the

prosecution, whether summarily or on indictment, of an offence or

offences.

(2) To avoid doubt, each of the following is part of a criminal

proceeding:

(a) a bail proceeding;

(b) a committal proceeding;

of intended evidence, documents and reports of persons

intended to be called by a party to give evidence;

(d) a sentencing proceeding;

(e) an appeal proceeding;

(f) a proceeding with respect to any matter in which a person

seeks a writ of mandamus or prohibition or an injunction

against an officer or officers of the Commonwealth (within

the meaning of subsection 39B(1B) of the Judiciary Act

1903) in relation to:

(i) a decision to prosecute a person for one or more

offences against a law of the Commonwealth; or

(ii) a related criminal justice process decision (within the

meaning of subsection 39B(3) of that Act);

(g) any other pre-trial, interlocutory or post-trial proceeding

prescribed by regulations for the purposes of this paragraph.

15MB Meaning of civil proceeding

(1) In this Part, civil proceeding means any proceeding in a court of

the Commonwealth, a State or Territory, other than a criminal

proceeding.

(2) 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;

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(d) any interlocutory or other proceeding prescribed by

regulations for the purposes of this paragraph.

15MC When a charge is outstanding or pending

(1) For the purposes of this Part:

(a) a charge against a person for an offence is outstanding until

the charge is finally dealt with in any of the following ways:

(i) the charge is withdrawn;

(ii) the charge is dismissed by a court;

(iii) the person is discharged by a court following a

committal hearing;

(iv) the person is acquitted or found guilty of the offence by

a court; and

(b) a charge against a person for an offence is pending if the

person has not yet been charged with the offence, but:

(i) the person has been arrested for the offence, unless the

person has been later released without being charged

with an offence; or

(ii) a summons to appear before a court to answer a charge

for the offence has been served on the person; and

outstanding if the allegation has not been finally dealt with

in accordance with the procedures that apply for the purposes

of dealing with an allegation of that kind.

Division 2--Witness Identity Protection Certificates for

Operatives

15MD Application of Part

(1) This Part applies to a proceeding in which an operative is, or may

be, required to give evidence obtained as an operative.

(2) To avoid doubt, this Part does not affect the operation of any law in

relation to the protection of a person who gives, or intends to give,

evidence in a proceeding.

15ME Witness identity protection certificate

(1) The chief officer of:

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(a) a law enforcement agency; or

(b) an intelligence agency;

may give a witness identity protection certificate for an operative

in relation to a proceeding if:

proceeding; and

(d) the chief officer is satisfied on reasonable grounds that the

disclosure in the proceeding of the operative's identity or

where the operative lives is likely to:

(i) endanger the safety of the operative or another person;

(ii) prejudice any current or future investigation; or

(iii) prejudice any current or future activity relating to

security.

(2) The chief officer must make all reasonable enquiries to enable the

chief officer to ascertain the information required to be included in

the certificate by section 15MG.

(3) The chief officer cannot give a certificate for an operative until the

chief officer has obtained a statutory declaration from the operative

under section 15MF.

Note:

The chief officer may delegate functions under this section--see

section 15MX.

(4) A decision to give a witness identity protection certificate:

(a) is final; and

(b) cannot be appealed against, reviewed, called into question,

quashed or invalidated in any court.

(5) Subsection (4) does not prevent a decision to give a witness

identity protection certificate being called into question in the

course of any proceedings of a disciplinary nature against the

person who made the decision.

(6) A witness identity protection certificate purporting to be issued

under subsection (1):

(a) must be taken to be such a certificate and to have been

properly issued; and

(b) is prima facie evidence of the matters in the certificate.

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(7) A witness identity protection certificate is not a legislative

instrument.

15MF Statutory declaration by operative

(1) Before a witness identity protection certificate is given for an

operative, the operative must make a statutory declaration of the

following matters:

(a) whether the operative has been convicted or found guilty of

an offence and, if so, particulars of each offence;

(b) whether any charges against the operative for an offence are

pending or outstanding and, if so, particulars of each charge;

intelligence officer:

(i) whether the operative has been found guilty of

professional misconduct and, if so, particulars of each

finding; and

(ii) whether, to the operative's knowledge, any allegations

of professional misconduct against him or her are

outstanding and, if so, particulars of each allegation;

(d) whether, to the operative's knowledge, a court has made any

adverse comment about the operative's credibility and, if so,

particulars of the comment;

(e) whether the operative has made a false representation when

the truth was required and, if so, particulars of the

representation;

(f) if there is anything else known to the operative that may be

relevant to the operative's credibility--particulars of the

thing.

(2) Subject to subsection (3), a person cannot be compelled to disclose

or produce a statutory declaration made under this section in any

proceeding.

(3) Subsection (2) does not apply to:

(a) proceedings for perjury or otherwise in respect of the falsity

of the statutory declaration; or

(b) proceedings of a disciplinary nature against a law

enforcement officer or an intelligence officer; or

jurisdiction having jurisdiction to investigate or inquire into

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the conduct of a law enforcement officer or an intelligence

officer.

15MG Form of witness identity protection certificate

(1) A witness identity protection certificate for an operative in relation

to a proceeding must state the following:

(a) if the operative:

(i) is known to a party to the proceeding or a party's lawyer

by a name other than the operative's real name--that

name (the assumed name); or

(ii) is not known to any party to the proceeding or any

party's lawyer by a name--the operative's court name

for the proceeding;

(b) the period the operative was involved in the investigation to

which the proceeding relates;

(d) the date of the certificate;

(e) the grounds for giving the certificate;

(f) whether the operative has been convicted or found guilty of

an offence and, if so, particulars of each offence;

(g) whether any charges against the operative for an offence are

pending or outstanding and, if so, particulars of each charge;

(h) if the operative is or was either a law enforcement officer or

an intelligence officer:

(i) whether the operative has been found guilty of

professional misconduct and, if so, particulars of each

finding; and

(ii) whether any allegations of professional misconduct

against the operative are outstanding and, if so,

particulars of each allegation;

(i) whether, to the knowledge of the person giving the

certificate, a court has made any adverse comment about the

operative's credibility and, if so, particulars of the comment;

(j) whether, to the knowledge of the person giving the

certificate, the operative has made a false representation

when the truth was required and, if so, particulars of the

representation;

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(k) if there is anything else known to the person giving the

certificate that may be relevant to the operative's

credibility--particulars of the thing.

(2) A witness identity protection certificate for an operative must not

contain information that may allow the operative's identity, or

where the operative lives, to be revealed.

15MH Filing and notification

(1) A witness identity protection certificate for an operative in relation

to a proceeding must be filed in the court before the operative gives

evidence in the proceeding.

(2) The person who files the certificate must give a copy of it to each

party to the proceeding at least 14 days (or the shorter period

agreed to by the party) before the day the operative is to give

evidence.

(3) The court may order the person filing the certificate to give a copy

of it to a person stated in the order.

(4) This section applies subject to section 15MI.

15MI Leave for non-compliance

(1) The person who has filed, or proposes to file, a witness identity

protection certificate may apply to the court for leave not to

comply with one or more of the requirements of section 15MH.

(2) However, the court must not give such leave unless it is satisfied

that it was not reasonably practicable to comply with the

requirement or requirements of section 15MH in respect of which

leave is sought.

(3) If the court gives leave under this section for a witness identity

protection certificate not to be filed in accordance with 15MH(1),

the witness identity protection certificate is taken to have been filed

in accordance with that subsection.

Note:

Provisions that are expressed to apply if a witness identity protection

certificate is filed in a court will also have effect if such a certificate is

taken to have been filed because of the operation of subsection (3).

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15MJ Effect of witness identity protection certificate

(1) This section applies if a witness identity protection certificate for

an operative in relation to a proceeding is filed in a court.

(2) If this section applies:

(a) the operative may give evidence in the proceeding under the

assumed name, or court name, stated in the certificate; and

(b) subject to section 15MM:

(i) a question must not be asked of a witness, including the

operative, that may lead to the disclosure of the

operative's identity or where the operative lives; and

(ii) a witness, including the operative, cannot be required to

(and must not) answer a question, give evidence or

provide information that discloses, or may lead to the

disclosure of, the operative's identity or where the

operative lives; and

(iii) a person involved in the proceeding must not make a

statement that discloses, or may lead to the disclosure

of, the operative's identity or where the operative lives.

(3) For the purposes of this section, a person involved in a proceeding

includes:

(a) the court; and

(b) a party to the proceeding; and

proceeding; and

(d) a lawyer representing a person referred to in paragraph (b) or

(e) any other officer of the court or person assisting the court in

the proceeding; and

(f) a person acting in the execution of any process or the

enforcement of any order in the proceeding.

15MK Orders to protect operative's identity etc.

(1) The court in which a witness identity protection certificate is filed

may make any order it considers necessary or desirable to protect

the identity of the operative for whom the certificate is given or to

prevent the disclosure of where the operative lives.

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(2) A person commits an offence if:

(a) an order has been made under subsection (1); and

(b) the person engages in conduct; and

Penalty: Imprisonment for 2 years.

(3) Subsection (2) does not limit the court's powers, including, but not

limited to, the court's power to punish for contempt.

(4) The court must make an order suppressing the publication of

anything said when an order is made as mentioned in

subsection (1).

(5) To avoid doubt, subsection (4) 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.

15ML Disclosure of operative's identity to presiding officer

(1) This section applies if a witness identity protection certificate for

an operative in relation to a proceeding is filed in a court.

(2) The presiding officer in the proceeding may require the operative

to do one or both of the following:

(a) to disclose the operative's true identity to the presiding

officer;

(b) to provide the presiding officer with photographic evidence

of that identity.

(3) The presiding officer must not:

(a) record information disclosed to the presiding officer under

subsection (2); or

(b) retain or copy a document or other thing provided to the

presiding officer under that subsection.

15MM Disclosure of operative's identity etc. despite certificate

(1) This section applies if a witness identity protection certificate for

an operative in relation to a proceeding is filed in a court.

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(2) A party to the proceeding, or a lawyer assisting the court in the

proceeding, may apply to the court:

(a) for leave:

(i) to ask a question of a witness, including the operative,

that may lead to the disclosure of the operative's

identity or where the operative lives; or

(ii) for a person involved in the proceeding to make a

statement that discloses, or may lead to the disclosure

of, the operative's identity or where the operative lives;

(b) for an order requiring a witness, including the operative, to

answer a question, give evidence or provide information that

discloses, or may lead to the disclosure of, the operative's

identity or where the operative lives.

(3) In this section:

person involved in the proceeding has the same meaning as in

subsection 15MJ(3).

(4) The court may do either or both of the following:

(a) give leave for the party or lawyer to do anything mentioned

in paragraph (2)(a);

(b) make an order requiring a witness to do anything mentioned

in paragraph (2)(b).

(5) However, the court must not give leave or make an order unless it

is satisfied about each of the following:

(a) there is evidence that, if accepted, would substantially call

into question the operative's credibility;

(b) it would be impractical to test properly the credibility of the

operative without allowing the risk of disclosure of, or

disclosing, the operative's identity or where the operative

lives;

be able to be tested.

(6) If there is a jury in the proceeding, the application must be heard in

the absence of the jury.

(7) Unless the court considers that the interests of justice require

otherwise, the court must be closed when:

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(a) the application is made; and

(b) if leave is given or an order is made--the question is asked

(and answered), the evidence is given, the information is

provided or the statement is made.

(8) The court must make an order suppressing the publication of

anything said when:

(a) the application is made; and

(b) if leave is given or an order is made--the question is asked

(and answered), the evidence is given, the information is

provided or the statement is made.

(9) To avoid doubt, subsection (8) 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.

(10) The court may make any other order it considers appropriate to

protect the operative's identity or to prevent the disclosure of

where the operative lives.

(11) A person commits an offence if:

(a) an order has been made under subsection (8), (9) or (10); and

(b) the person engages in conduct; and

Penalty: Imprisonment for 2 years.

(12) Subsection (11) does not limit the court's powers, including, but

not limited to, the court's power to punish for contempt.

15MN Application for leave--joinde r as respondent

(1) This section applies if:

(a) a witness identity protection certificate for an operative in

relation to a proceeding is filed in a court; and

(b) a person applies:

(i) for leave under section 15MI or 15MM; or

(ii) for an order under section 15MK or 15MM.

(2) The court in which the application is pending may allow a person

to join the application as a respondent if:

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(a) the person is:

(i) the operative in relation to whom the witness identity

protection certificate is given; or

(ii) the chief officer of the agency who gave the witness

identity protection certificate; and

(b) the person applies to be joined to the application as a

respondent; and

application.

(3) If a court allows a person to join the application as a respondent

under subsection (2), the court must allow the person, or the

person's legal representative, to appear and be heard.

15MO Directions to jury

(1) This section applies if:

(a) a witness identity protection certificate for an operative in

relation to a proceeding is filed in a court; and

(b) there is a jury in the proceeding; and

(2) The court must (unless it considers it inappropriate) direct the jury

not to give the operative's evidence any more or less weight, or

draw any adverse inferences against the defendant or another party

to the proceeding, because:

(a) there is a witness identity protection certificate for the

operative; or

(b) the court has made an order under section 15MK or

subsection 15MM(8), (9) or (10).

15MP Adjournment for appeal decision

(1) If a court gives leave under section 15MI or 15MM or makes an

order under section 15MK or 15MM, a party may apply to the

court for an adjournment of the proceeding to allow time for the

party to:

(a) decide whether to appeal against the decision to grant leave

or to give the order; and

(b) if the party decides to do so--make the appeal.

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(2) If an application is made under this section, the court must grant

the adjournment.

(3) A court that has jurisdiction to hear and determine appeals from a

judgment, order or direction in the proceeding has jurisdiction to

hear and determine any appeal under this section.

15MQ Witness identity protection certificate--cancellation

(1) This section applies if the chief officer of:

(a) a law enforcement agency; or

(b) an intelligence agency;

gives a witness identity protection certificate for an operative in

relation to a proceeding.

(2) The chief officer must cancel the witness identity protection

certificate if the chief officer considers that it is no longer

necessary or appropriate to prevent the disclosure of the

operative's identity or where the operative lives.

(3) If the chief officer cancels the certificate after it has been filed in a

court, the chief officer must immediately give notice to the court

and each party to the proceeding, in writing, that the certificate has

been cancelled.

Note:

The chief officer may delegate functions under this section--see

section 15MX.

15MR Permission to give information disclosing operative's identity

etc.

(1) This section applies if the chief officer of:

(a) a law enforcement agency; or

(b) an intelligence agency;

gives a witness identity protection certificate for an operative in

relation to a proceeding.

(2) The chief officer may, in writing, permit a person to give

information (otherwise than in the proceeding) that discloses, or

may lead to the disclosure of, the operative's identity or where the

operative lives if the chief officer considers it necessary or

appropriate for the information to be given.

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(3) The permission:

(a) must name the person who may give the information; and

(b) must name the person to whom the information may be

given; and

(d) may state how the information may be given.

Note:

The chief officer may delegate functions under this section--see

section 15MX.

15MS Disclosure offences

(1) A person commits an offence if:

(a) a witness identity protection certificate for an operative in

relation to a proceeding has been given; and

(b) the certificate has not been cancelled under section 15MQ;

and

(d) the conduct results in the disclosure of the operative's

identity or where the operative lives; and

(e) none of the following applies:

(i) the conduct is required by section 15ML;

(ii) the conduct is authorised by leave or by an order under

section 15MM;

(iii) the conduct is permitted under section 15MR.

Penalty: Imprisonment for 2 years.

(2) A person commits an offence if:

(a) a witness identity protection certificate for an operative in

relation to a proceeding has been given; and

(b) the certificate has not been cancelled under section 15MQ;

and

(d) the conduct results in the disclosure of the operative's

identity or where the operative lives; and

(e) none of the following applies:

(i) the conduct is required by section 15ML;

(ii) the conduct is authorised by leave or by an order under

section 15MM;

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(iii) the conduct is permitted under section 15MR; and

(f) the person is reckless as to whether his or her conduct will

endanger the health or safety of another person.

Penalty: Imprisonment for 10 years.

(3) A person commits an offence if:

(a) a witness identity protection certificate for an operative in

relation to a proceeding has been given; and

(b) the certificate has not been cancelled under section 15MQ;

and

(d) the conduct results in the disclosure of the operative's

identity or where the operative lives; and

(e) none of the following applies:

(i) the conduct is required by section 15ML;

(ii) the conduct is authorised by leave or by an order under

section 15MM;

(iii) the conduct is permitted under section 15MR; and

(f) the person is reckless as to whether his or her conduct will

prejudice the effective conduct of an investigation or

intelligence-gathering in relation to criminal activity.

Penalty: Imprisonment for 10 years.

15MT Evidentiary certificates

(1) A chief officer of a law enforcement agency or an intelligence

agency may sign a certificate stating any of the following:

(a) that, for the purposes of paragraph 15MS(1)(b), (2)(b) or

(3)(b), a witness identity protection certificate for an

operative in relation to a proceeding has not been cancelled

under section 15MQ;

(b) whether, for the purposes of subparagraph 15MS(1)(e)(i),

(2)(e)(i) or (3)(e)(i), the conduct that is the subject of the

offence was required by section 15ML;

(2)(e)(ii) or (3)(e)(ii), the conduct that is the subject of the

offence was authorised by leave or by an order under

section 15MM;

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(d) whether, for the purposes of subparagraph 15MS(1)(e)(iii),

(2)(e)(iii) or (3)(e)(iii), the conduct that is the subject of the

offence was permitted under section 15MR.

(2) In any proceedings, a certificate given under this section is prima

facie evidence of the matters certified in it.

15MU Reports about witness identity protection certificates--law

enforcement agencies

(1) As soon as practicable after the end of each financial year, the

chief officer of a law enforcement agency must submit to the

Minister a report about witness identity protection certificates

given by the chief officer during that year.

(2) The report must include the following:

(a) the number of witness identity protection certificates given;

(b) on what basis the chief officer was satisfied about the matters

mentioned in paragraph 15ME(1)(d) for each certificate;

was required by section 15ML--details of the proceeding in

relation to which disclosure was required and details of the

things that the presiding officer required the operative to do

under that section;

(d) if leave was given or an order made under section 15MM in a

proceeding in which a witness identity protection certificate

for an operative was filed--details of the proceeding that

relate to the leave or order;

(e) if leave was given for joinder of a person as a respondent to

proceedings under section 15MN--details of the person who

was joined and who appeared on their behalf;

(f) if leave was given for an adjournment under section 15MP--

details of whether an appeal was made against the decision

under that section;

(g) if a witness identity protection certificate was cancelled

under section 15MQ--the reasons why the certificate was

cancelled;

(h) if a permission was given under section 15MR--the reasons

why the permission was given;

Amend ments relating to controlled operations, assumed identities and witness identity

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(i) any other information relating to witness identity protection

certificates and the administration of this Part that the

Minister considers appropriate.

(3) A report must not include information that discloses, or may lead

to the disclosure of, an operative's identity, or where the operative

lives, unless the witness identity protection certificate for the

operative has been cancelled.

(4) The Minister must cause a copy of the report to be laid before each

House of the Parliament within 15 sitting days of that House after

the day on which the Minister receives the report.

15MV Reports about witness identity protection certificates--

intelligence agencies

(1) As soon as practicable after the end of each financial year, the

chief officer of an intelligence agency must submit to the

Inspector-General of Intelligence and Security a report about

witness identity protection certificates given by the chief officer

during that year.

(2) The report must include the following:

(a) the number of witness identity protection certificates given;

(b) on what basis the chief officer was satisfied about the matters

mentioned in paragraph 15ME(1)(d) for each certificate;

was required by section 15ML--details of the proceeding in

relation to which disclosure was required and details of the

things that the presiding officer required the operative to do

under that section;

(d) if leave was given or an order made under section 15MM in a

proceeding in which a witness identity protection certificate

for an operative was filed--details of the proceeding that

relate to the leave or order;

(e) if leave was given for joinder of a person as a respondent to

proceedings under section 15MN--details of the person who

was joined and who appeared on their behalf;

(f) if leave was given for an adjournment under section 15MP--

details of whether an appeal was made against the decision

under that section;

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Part 1 Main amendments

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

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(g) if a witness identity protection certificate was cancelled

under section 15MQ--the reasons why the certificate was

cancelled;

(h) if a permission was given under section 15MR--the reasons

why the permission was given;

(i) any other information relating to witness identity protection

certificates and the administration of this Part that the

Inspector-General of Intelligence and Security considers

appropriate.

Division 3--Mutual Recognition under Corresponding

Laws

15MW Recognition of witness identity protection certificates under

corresponding laws

The following provisions apply, with any necessary changes, to a

corresponding witness identity protection certificate as if it were a

witness identity protection certificate given under section 15ME:

(a) section 15MH (filing and notification);

(b) section 15MI (leave for non-compliance);

certificate);

(d) section 15MK (orders to protect operative's identity etc.);

(e) section 15ML (disclosure of operative's identity to presiding

officer);

(f) section 15MM (disclosure of operative's identity etc. despite

certificate);

(g) section 15MN (application for leave--joinder as respondent);

(h) section 15MO (directions to jury);

(i) section 15MP (adjournment for appeal decision);

(j) section 15MS (disclosure offences);

(k) section 15MT (evidentiary certificates).

Amend ments relating to controlled operations, assumed identities and witness identity

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Division 4--General

15MX Delegation

(1) Except as provided by this section (and despite any other Act or

law to the contrary), the functions of a chief officer under this Part

may not be delegated to any other person.

(2) A chief officer may delegate any of the chief officer's functions

under this Part (except this power of delegation) to a senior officer

of the law enforcement agency or the intelligence agency (as the

case may be).

(3) In this section:

senior officer means:

(a) in relation to the Australian Federal Police--a Deputy

Commissioner, an Assistant Commissioner, or a person

occupying an equivalent or higher rank in the Australian

Federal Police; and

(b) in relation to Customs--a Deputy Chief Executive Officer of

Customs, or a person occupying an equivalent or higher

position in Customs; and

(i) the Executive Director Operational Strategies, the

Executive Director Intelligence Strategies, or a person

occupying an equivalent or higher position in the ACC;

(ii) a person occupying a position prescribed by the

regulations; and

(d) in relation to the Australian Taxation Office--an Assistant

Commissioner, or a person occupying an equivalent or higher

position in the Australian Taxation Office; and

(e) in relation to the Australian Security Intelligence

Organisation--a Deputy Director-General of Security, or a

person occupying an equivalent or higher position in the

Australian Security Intelligence Organisation; and

(f) in relation to the Australian Secret Intelligence Service--a

First Assistant Director-General of the Australian Secret

Intelligence Service, or a person occupying an equivalent or

higher position in the Australian Secret Intelligence Service.

Schedule 3 A mendments relating to controlled operations, assumed identities and

witness identity protection

Part 2 Provisions relating to pre-co mmencement authorisations under State controlled

operations law

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

2009

Part 2

Provisions relating to pre-commencement

authorisations under State controlled

operations law

11 Relationship to other laws and matters

(1)

Subject to this item and item 15, this Part is not intended to limit a

discretion that a court has:

(a) to admit or exclude evidence in any proceedings; or

(b) to stay criminal proceedings in the interests of justice.

(2)

In determining whether evidence should be admitted or excluded in any

proceedings, the fact that the evidence was obtained as a result of a

person engaging in criminal activity is, subject to subitem (5), to be

disregarded if:

(a) the person was a participant in an operation authorised before

commencement under a State controlled operations law,

acting in the course of that operation; and

(b) the criminal activity was conduct constituting an offence for

which a person would, but for item 12, be criminally

responsible.

(3)

This item applies to criminal activity engaged in before, on or after

commencement.

(4)

This item applies to the following:

(a) proceedings that were instituted before commencement, but

have not been completed as at commencement;

(b) proceedings instituted on or after commencement;

instituted before, on or after commencement.

(5)

Despite subitem (4), if a court has determined before commencement

that particular evidence be excluded, this item does not provide a

ground of appeal against that determination.

12 Protection from criminal responsibility for conduct

engaged in before, on or after commencement under a

pre-commencement State authorisation

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(1)

This item applies to a participant in an operation authorised under a

State controlled operations law if:

(a) the operation was authorised before commencement; and

(b) the participant engaged in conduct, whether before, on or

after commencement, in the course of, and for the purposes

of, the operation; and

(2)

Despite any other law of the Commonwealth, the partic ipant is not

criminally responsible for the Commonwealth offence, if:

(a) the conduct was authorised by, and was engaged in in

accordance with, the authority to conduct the controlled

operation; and

(b) the conduct did not involve the participant intentionally

inducing a person to commit a Commonwealth offence or an

offence against a law of a State or Territory that the person

would not otherwise have intended to commit; and

conduct that was likely to:

(i) cause the death of, or serious injury to, any person; or

(ii) involve the commission of a sexual offence against any

person; and

(d) if the person is a civilian participant in the operation--he or

she acts in accordance with the instructions of a law

enforcement officer.

(3)

Expressions used in this item have the same meanings as in the State

controlled operations law under which the operation was authorised.

13 Effect of item 12 on other laws relating to criminal

investigation

Item 12 does not apply to a person's conduct that is, or could have been,

authorised under a Commonwealth law or a law of a State or Territory

relating to the following:

(a) arrest or detention of individuals;

(b) searches of individuals;

(d) searches, inspections or seizures of other property;

(e) forensic procedure;

Schedule 3 A mendments relating to controlled operations, assumed identities and

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Part 2 Provisions relating to pre-co mmencement authorisations under State controlled

operations law

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

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(f) electronic surveillance devices or telecommunications

interception;

(g) identification procedures;

(h) the acquisition or use of assumed identities;

(i) any other matter concerning powers of criminal investigation.

14 Protection from criminal responsibility for certain ancillary

conduct

(1)

This item applies if:

(a) a person engaged in conduct (the ancillary conduct), whether

before, on or after commencement, that related to conduct

(the related conduct) that:

(i) was engaged in before, on or after commencement by

another person; and

(ii) constituted an offence for which a person would, but for

item 12, be criminally responsible; and

(b) engaging in the ancillary conduct was or is an ancillary

offence (within the meaning of the Criminal Code) in relation

to the offence constituted by the related conduct.

(2)

Despite any law of the Commonwealth, the person who engaged in the

ancillary conduct is not criminally responsible for the ancillary offence

if, at the time the person engaged in the ancillary conduct, he or she

believed the related conduct was being engaged in, or would be engaged

in, by a participant in an operation authorised before commencement

under a State controlled operations law.

(3)

Expressions used in this item have the same meanings as in the State

controlled operations law under which the person believed the

controlled conduct was being engaged in.

15 Evidence of authorities

A document purporting to be an authority granted under a State

controlled operations law:

(a) is admissible in any legal proceedings; and

(b) in the absence of evidence to the contrary, is proof in any

proceedings (not being criminal or disciplinary proceedings

against a law enforcement officer) that the person granting

Amend ments relating to controlled operations, assumed identities and witness identity

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153

the authority was satisfied of the facts he or she was required

to be satisfied of to grant the authority.

16 Definitions

In this Part:

commencement means the commencement of this item.

State controlled operations law means:

(a) a law of a State or Territory; or

(b) a provision or provisions of a law of a State or Territory;

prescribed by the regulations for the purposes of this definition.

Schedule 3 A mendments relating to controlled operations, assumed identities and

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Part 3 General application and transitional provisions

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

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Part 3

General application and transitional

provisions

17 Controlled operations authorised before commencement

continue under old law

(1)

Despite the repeals and amendments made by this Part, the Crimes Act

1914, as in force immediately before the commencement of this item,

continues to apply after that commencement, in relation to a

pre-commencement controlled operation, as if those repeals and

amendments had not happened.

(2)

In this item:

pre-commencement controlled operation means a controlled operation

authorised under Part IAB of the Crimes Act 1914 before the

commencement of this item, whether or not the pre-commencement

controlled operation had been completed as at that commencement.

18 Controlled operations

continuation of Division 3 of

Part IAB

Despite the repeal of Division 3 of Part IAB of the Crimes Act 1914 by

this Part, that Division, as in force immediately before the

commencement of this item, is taken to continue in effect as if it had not

been repealed.

19 Assumed identities

authorisations taken to be authority

under new law

(1)

This item applies to an authorisation that was granted under

section 15XG of the Crimes Act 1914 immediately before the

commencement of this item.

(2)

The authorisation has effect, after the commencement of this item, as if

it were an authority granted under section 15KB as inserted by this

Schedule.

20 Assumed identities

continuation of old law in relation to

States without corresponding laws

(1)

Despite the repeal of Part IAC of the Crimes Act 1914 by this Schedule:

(a) section 15XH of that Act, as in force immediately before the

commencement of this item, continues in effect after that

Amend ments relating to controlled operations, assumed identities and witness identity

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155

commencement, in relation to a State or Territory that is not a

participating jurisdiction, as if that repeal had not happened;

and

(b) that Part, and any other provision of the Crimes Act 1914 that

relates to the operation of that Part, continues in effect in

relation to authorisations under that Part and assumed

identities acquired or used under such authorisations as if that

repeal had not happened.

(2)

In this item:

participating jurisdiction has the same meaning as in section 15K of

the Crimes Act 1914, as in force immediately after the commencement

of this item.

Other amend ments Schedule 4

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

157

Schedule 4

Other amendments

Part 1

Joint commission

Criminal Code Act 1995

1 Subsection 11.1(7) of the Criminal Code

After "section 11.2 (complicity and common purpose),", insert

"section 11.2A (joint commission), section 11.3 (commission by

proxy),".

2 Subsection 11.2(5) of the Criminal Code

Omit "principal offender", substitute "other person".

3 Subsection 11.2(6) of the Criminal Code

Omit "to the offence of aiding, abetting, counselling or procuring the

commission of that offence", substitute "for the purposes of determining

whether a person is guilty of that offence because of the operation of

subsection (1)".

4 After section 11.2 of the Criminal Code

Insert:

11.2A Joint commission

Joint commission

(1) If:

(a) a person and at least one other party enter into an agreement

to commit an offence; and

(b) either:

(i) an offence is committed in accordance with the

agreement (within the meaning of subsection (2)); or

(ii) an offence is committed in the course of carrying out the

agreement (within the meaning of subsection (3));

the person is taken to have committed the joint offence referred to

in whichever of subsection (2) or (3) applies and is punishable

accordingly.

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Part 1 Joint co mmission

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

2009

Offence committed in accordance with the agreement

(2) An offence is committed in accordance with the agreement if:

(a) the conduct of one or more parties in accordance with the

agreement makes up the physical elements consisting of

conduct of an offence (the joint offence) of the same type as

the offence agreed to; and

(b) to the extent that a physical element of the joint offence

consists of a result of conduct--that result arises from the

conduct engaged in; and

consists of a circumstance--the conduct engaged in, or a

result of the conduct engaged in, occurs in that circumstance.

Offence committed in the course of carrying out the agreement

(3) An offence is committed in the course of carrying out the

agreement if the person is reckless about the commission of an

offence (the joint offence) that another party in fact commits in the

course of carrying out the agreement.

Intention to commit an offence

(4) For a person to be guilty of an offence because of the operation of

this section, the person and at least one other party to the

agreement must have intended that an offence would be committed

under the agreement.

Agreement may be non-verbal etc.

(5) The agreement:

(a) may consist of a non-verbal understanding; and

(b) may be entered into before, or at the same time as, the

conduct constituting any of the physical elements of the joint

offence was engaged in.

Termination of involvement etc.

(6) A person cannot be found guilty of an offence because of the

operation of this section if, before the conduct constituting any of

the physical elements of the joint offence concerned was engaged

in, the person:

(a) terminated his or her involvement; and

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159

(b) took all reasonable steps to prevent that conduct from being

engaged in.

Person may be found guilty even if another party not prosecuted

etc.

(7) A person may be found guilty of an offence because of the

operation of this section even if:

(a) another party to the agreement has not been prosecuted or has

not been found guilty; or

(b) the person was not present when any of the conduct

constituting the physical elements of the joint offence was

engaged in.

Special liability provisions apply

(8) Any special liability provisions that apply to the joint offence apply

also for the purposes of determining whether a person is guilty of

that offence because of the operation of this section.

Note:

The heading to section 11.3 of the Criminal Code is replaced by the heading

"Commission by proxy".

5 Subsection 11.6(4) of the Criminal Code (note)

Omit "and 11.3 (innocent agency)", substitute ", 11.2A (joint

commission), and 11.3 (commission by proxy)".

6 Subsection 14.1(1) of the Criminal Code (note)

Omit "subsection 11.2(1)", substitute "subsections 11.2(1) and

11.2A(1)".

7 Subsection 15.1(1) of the Criminal Code (note)

Omit "subsection 11.2(1)", substitute "subsections 11.2(1) and

11.2A(1)".

8 Subsection 15.2(1) of the Criminal Code (note)

Omit "subsection 11.2(1)", substitute "subsections 11.2(1) and

11.2A(1)".

9 Subsection 15.3(1) of the Criminal Code (note)

Omit "subsection 11.2(1)", substitute "subsections 11.2(1) and

11.2A(1)".

Schedule 4 Other amendments

Part 1 Joint co mmission

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

2009

10 Section 15.4 of the Criminal Code (note)

Omit "subsection 11.2(1)", substitute "subsections 11.2(1) and

11.2A(1)".

11 Subsection 70.5(1) of the Criminal Code (note)

After "11.2(1)", insert ", 11.2A(1)".

12 Paragraph 302.6(a) of the Criminal Code

After "11.2", insert "or 11.2A".

13 Dictionary in the Criminal Code (paragraph (b) of the

definition of ancillary offence)

After "11.2", insert ", 11.2A".

Other amend ments Schedule 4

Amend ment of the Teleco mmunications (Interception and Access) Act 1979 Part 2

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

161

Part 2

Amendment of the Telecommunications

(Interception and Access) Act 1979

Telecommunications (Interception and Access) Act 1979

14 Subsection 5(1)

Insert:

associate, with a criminal organisation or a member of such an

organisation, includes:

(a) be in the company of the organisation or member; and

(b) communicate with the organisation or member by any means

(including by post, fax, telephone, or by email or other

electronic means).

15 Subsection 5(1)

Insert:

criminal organisation means an organisation (whether

incorporated or not, and however structured) that is:

(a) a declared organisation within the meaning of:

(i) the Crimes (Criminal Organisations Control) Act 2009

of New South Wales; or

(ii) the Serious and Organised Crime (Control) Act 2008 of

South Australia; or

(b) an organisation of a kind specified by or under, or described

or mentioned in, a prescribed provision of a law of a State or

Territory.

16 Subsection 5(1)

Insert:

member, of a criminal organisation, includes:

(a) in the case of an organisation that is a body corporate--a

director and an officer of the body corporate; and

(b) in any case:

(i) an associate member or prospective member (however

described) of the organisation; and

Schedule 4 Other amendments

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

2009

(ii) a person who identifies himself or herself, in some way,

as belonging to the organisation; and

(iii) a person who is treated by the organisation or persons

who belong to the organisation, in some way, as if he or

she belongs to the organisation.

17 At the end of section 5D

Add:

Offences relating to criminal organisations

(9) An offence is also a serious offence if:

(a) the particular conduct constituting the offence involved,

involves or would involve, as the case requires:

(i) associating with a criminal organisation, or a member of

a criminal organisation; or

(ii) contributing to the activities of a criminal organisation;

(iii) aiding, abetting, counselling or procuring the

commission of a prescribed offence for a criminal

organisation; or

(iv) being, by act or omission, in any way, directly or

indirectly, knowingly concerned in, or party to, the

commission of a prescribed offence for a criminal

organisation; or

(v) conspiring to commit a prescribed offence for a criminal

organisation; and

(b) if the offence is covered by subparagraph (a)(i)--the conduct

constituting the offence was engaged in, or is reasonably

suspected of having been engaged in, for the purpose of

supporting the commission of one or more prescribed

offences by the organisation or its members; and

conduct constituting the offence was engaged in, or is

reasonably suspected of having been engaged in, for the

purpose of enhancing the ability of the organisation or its

members to commit or facilitate the commission of one or

more prescribed offences.

18 Application

Schedule 4 Other amendments

Part 3 Regulations

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

2009

Part 3

Regulations

19 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.

Commonwealth of Australia Bills

CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009