Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I table a replacement explanatory memorandum relating to the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009. I also table two supplementary explanatory memoranda relating to government amendments to be moved to these bills. The memoranda were circulated in the chamber on 25 November 2009 and 3 February 2010.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

I wish to make the following statement. Government amendment (3) on sheet AF230 has been circulated as a request for the reasons given in the circulated statements. The amendment would enable payments to be made out of the confiscated assets account to a broader class of persons than may currently make claims. The confiscated assets account established under the Proceeds of Crime Act 2002 is a special account under section 21 of the Financial Management and Accountability Act 1997. Recovered proceeds of crime are paid into the account and payments from it may not exceed amounts paid into it by the affected person. The amendment would allow dependants of the affected person to make claims on the money, but payments are made only if a court orders them. The possible effect on the appropriation is therefore only indirect.

In the past, the Senate has regarded only a very direct effect on an appropriation as an increase in a charge or burden on the people within the meaning of section 3 of the Constitution. It is also apparent that the amendment will not increase the total amount of money available to be paid to claimants. The precedents of the Senate do not support the amendment being moved as a request and, therefore, it will be treated as an amendment. With the concurrence of the committee, the statement of reasons in relation to this matter will be incorporated in Hansard. There being no objection, it is so ordered.

The document read as follows—

Parliamentary Counsel

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

Statement of reasons: why certain amendments should be moved as requests

Section 53 of the Constitution is as follows:

Powers of the Houses in respect of legislation

53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Amendment (3)

The effect of this amendment is to extend the purposes in respect of which money may be debited from a special account. This may increase the amount that may be paid from the Confiscated Assets Account established by section 295 of the Proceeds of Crime Act 2002, with those payments being made out of the Consolidated Revenue Fund under the standing appropriation in section 21 of the Financial Management and Accountability Act 1997.

It is covered by section 53 because:

(a)

laws which cause money to be expended out of a standing appropriation are a charge or burden on the people (within the meaning of the third paragraph of section 53); and

(b)

it is likely that the amendment will have the effect of increasing the amount that may be paid out of a standing appropriation and therefore of increasing such a proposed charge or burden, which is prevented by the third paragraph of section 53.

Statement by the Clerk of the Senate pursuant to the order of the Senate of 26 June 2000

Amendment (3)

This amendment provides for compensation payments to be made to eligible dependants of persons subject to unexplained wealth orders. These payments would be made from the Confiscated Assets Account (CAA) established by the Proceeds of Crime Act 2002. The CAA is a special account by virtue of section 21 of the Financial Management and Accountability Act 1997. All proceeds recovered under the Proceeds of Crime Act 2002 are paid into the CAA.

Although this amendment enables payments to be made to a broader class of people (the dependants), there is no increased appropriation required from the CAA. Dependants can only claim an amount equal to or less than that paid by the person subject to the unexplained wealth order and held in the CAA.

Further, a dependant must make application for a court order when making a claim of compensation. The court then orders the Commonwealth to make the required compensation payment from the CAA.

The Senate has long held the view that only a very direct effect on an appropriation is regarded as an increase in a charge or burden (Odgers’ Australian Senate Practice, 12^th edition, p. 297). Possible expenditure from the CAA on the basis of possible court orders in response to applications by dependants does not meet the test of directness. In any case, nothing in the amendment would have the effect of increasing the total amount available under the appropriation (which is limited by the amount of proceeds recovered). Amending a bill to change the allocation of proposed expenditure and the purposes for which money is to be appropriated has long been considered to be within the power of the Senate, provided that the total proposed (or available) expenditure is not increased. Moreover, it could be argued that, given that the appropriation is ‘self-funded’ from the proceeds of crime, there is indeed no actual charge or burden on the people.

For these reasons the amendments would not be regarded as requests under the precedents of the Senate.

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009

Bill—by leave—taken as a whole.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (6) on sheet AF236 together:

(1)    Clause 2, page 2 (table item 5), omit “Part 6”, substitute “Parts 6 and 7”.

(2)    Schedule 1, item 13, page 9 (line 32), omit “so.”, substitute “so; or”.

(3)    Schedule 1, item 13, page 9 (after line 32), at the end of subsection 179C(5), add:

             (c)    it is otherwise in the interests of justice to do so.

(4)    Schedule 2, item 3, page 31 (lines 7 to 17), omit section 15J, substitute:

15J  Service of freezing order etc. on financial institution and account-holder

        (1)    If a magistrate makes a ^*freezing order relating to an ^*account with a ^*financial institution, the applicant for the order must cause the things described in subsection (2) to be given to:

             (a)    the financial institution; and

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

        (2)    The things are as follows:

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

             (b)    a written statement of the name and contact details of the ^*enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the applicant.

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).

(5)    Schedule 2, item 3, page 34 (after line 27), at the end of Part 2-1A, add:

Division 6—Revoking freezing orders

15R  Application to revoke a freezing order

        (1)    A person may apply to a magistrate to revoke a ^*freezing order.

        (2)    The applicant for the revocation must give written notice of the application and the grounds on which the revocation is sought to the ^*enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the ^*authorised officer who applied for the ^*freezing order.

        (3)    One or more of the following may adduce additional material to the magistrate relating to the application to revoke the ^*freezing order:

             (a)    the ^*authorised officer who applied for the freezing order;

             (b)    the authorised officer whose affidavit supported the application for the freezing order;

             (c)    another authorised officer described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer mentioned in paragraph (a) or (b) of this subsection.

        (4)    The magistrate may revoke the ^*freezing order if satisfied that it is in the interests of justice to do so.

15S  Notice of revocation of a freezing order

        (1)    If a ^*freezing order relating to an ^*account with a ^*financial institution is revoked under section 15R, an ^*authorised officer (the notifying officer) described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer who applied for the freezing order must cause written notice of the revocation to be given to:

             (a)    the financial institution; and

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

        (2)    However, the notifying officer need not give notice to the applicant for the revocation.

        (3)    Subsection (1) does not require more than one ^*authorised officer to cause notice of the revocation to be given.

(6)    Schedule 2, page 51 (after line 19), at the end of the Schedule, add:

Part 7—Other amendments

Proceeds of Crime Act 2002

106  Subsection 42(5)

Repeal the subsection, substitute:

        (5)    The court may revoke the ^*restraining order if satisfied that:

             (a)    there are no grounds on which to make the order at the time of considering the application to revoke the order; or

             (b)    it is otherwise in the interests of justice to do so.

107  Application and transitional

(1)    The amendment of section 42 of the Proceeds of Crime Act 2002 made by this Part applies in relation to the revocation of a restraining order on or after commencement, whether the application for that revocation was made before, on or after commencement.

(2)    If an application under section 42 of the Proceeds of Crime Act 2002 for the revocation of a restraining order has been made but not determined as at commencement:

             (a)    the applicant may vary the application to take account of paragraph 42(5)(b) of the Proceeds of Crime Act 2002 as in force at commencement; and

             (b)    if the application is varied under paragraph (a) of this subitem—the applicant must give a copy of the application as varied, and written notice of any additional grounds that he or she proposes to rely on in seeking that revocation, to the DPP and the Official Trustee; and

             (c)    the DPP may adduce additional material to the court relating to those additional grounds.

(3)    In this item:

commencement means the commencement of this item.

The amendments insert further safeguards that enable a person affected by a preliminary unexplained wealth order, restraining order or freezing order to apply for revocation on the grounds that it would be in the interests of justice to revoke the order. The amendments respond to the High Court’s decision in International Finance Trust Co. Ltd v New South Wales Crime Commission 2009.

Amendment (1) is a minor amendment required to clarify that parts 6 and 7 of the bill will commence on the day after royal assent. This is necessary because amendment (6) introduces part 7. I will come to that issue again shortly. Amendment (2) is a minor amendment to proposed paragraph 179C(5)(b), which deals with applications to revoke a preliminary unexplained wealth order. It adds the word ‘or’ to the end of the paragraph to allow for the inclusion of an additional ground for revoking a preliminary unexplained wealth order to be inserted. Amendment (3) adds an additional ground. The court may revoke the order if it is in the interests of justice to do so. It inserts the additional ground on which the court may grant revocation of a preliminary unexplained wealth order. Currently, the proposed paragraph 179C(5)(b) states that a court may revoke such an order on application if it is satisfied that there are no grounds on which to make the order at the time of considering the application to revoke the order or it is in the public interest to do so.

Amendment (4) finetunes the service requirements set out in proposed section 15J that apply to freezing orders to ensure that financial institutions and account holders are notified that a freezing order has been made. The new section states that if a magistrate makes a freezing order the authorised officer that applied for that order must provide a range of things to the financial institution and to each account holder. These include a copy of the freezing order and a written statement of the name and contact details of the enforcement agency with which the officer that applied for the said order is associated as defined under the Proceeds of Crime Act.

Amendment (5) inserts a new division 6 to enable a person to apply to have a freezing order revoked and sets out the process for doing so. Amendment (5) allows a court to revoke a freezing order if it is in the interests of justice to do so. This will ensure that a court that is hearing a revocation application can have regard to matters relevant to the administration of justice.

Amendment (6) repeals existing section 42(5) of the Proceeds Of Crime Act 2002, which sets out the current test for revoking a restraining order and replaces it with a new section setting out a broader test for revoking a restraining order. Under the current test, such an order can only be revoked if the court is satisfied there are no grounds on which to make the order. Under this new section, the court will be able to revoke a restraining order if it is satisfied that there is no basis on which to make the order at the time the revocation application is to be considered or if it is satisfied it is otherwise in the interests of justice to do so. Amendment (6) also provides application and transitional provisions which will allow all people to access the new expanded grounds for revocation, regardless of whether the application was made before, on or after commencement.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition supports these amendments. Some of them are of a technical character. The expansion of the grounds for the revocation of unexplained wealth orders are, however, of a more substantive character and they reflect the outcome of the discussions between the Attorney-General and me. The opposition thanks the government for taking into account the opposition’s concerns in this regard. As I have indicated, the opposition will support the amendments.

Question agreed to.

I move opposition amendment (1) on sheet 6018 revised:

(1)    Schedule 1, item 5, page 3 (line 23), omit “must”, substitute “may”.

Opposition amendment (1) would substitute for the word ‘must’ the word ‘may’ in what would be section 20A of the act. As the bill currently stands, the scheme of the act would be to deny a court with proceeds jurisdiction—that is, the jurisdiction to make an unexplained wealth order—any discretion to refuse to do so, so long as the conditions set out in subsection (1) are satisfied. Those conditions, and there are five of them in subsections (c) through to (g), are of an essentially formal character. By subsection (c) it is required that:

the DPP applies for the order—

That is a procedural issue only. Subsection (d) reads:

(d) that ‘there are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired …

I will come back to (d), which is a substantive matter. Subsection (e) reads:

(e) that ‘affidavit requirements in subsection (3) ... have been met …

That is a formal matter of proof. Subsection (f) reads:

(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 …

That is a threshold requirement, and subsection (g) reads:

(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—

That is a substantive matter as well. When one then examines the way in which the substantive matters are to be proved—that is, the matters in subsections (d) and (g)—they are to be proved by way of an affidavit. These applications are, of course, ex parte applications, so the person against whose interests such an order would be made does not have a right to be heard at that stage of the proceeding and there is, therefore, no opportunity for the deponent to the affidavit which proves up the substantive matters concerning which the court is required to be satisfied to cross-examine that deponent on their affidavit. Given that the substantive matters in (d) and (g) will, as a matter of course, have been sworn to and there is no capacity to test the matters deposed to in the applicant’s affidavit, it seems to the opposition that it is necessary that the court should have a discretion to refuse to make an order if it is not satisfied sufficiently that it is a proper case.

The analogy in unexplained wealth applications is with applications in civil proceedings for injunctions called Mareva injunctions and Anton Piller orders, which are different but somewhat related species of order, which are sought, in the first instance, ex parte. It is unthinkable that a civil court to which application is made for an ex parte injunction to tie up a person’s assets should not have a discretion to refuse to make the order in its general jurisdiction—for example, if the court were not satisfied that the application had been made in a timely fashion, if the court were not satisfied as to the sufficiency of the material placed before it, if the court were concerned that there had been abusive or inappropriate conduct so that there was an issue as to the good faith in which the application were brought, and there are various other discretionary grounds as well. It is intrinsically in the nature of an injunction as an equitable remedy that it is a discretionary order of the court and an extraordinary order of the court. Although this legislation deals with the criminal law rather than the civil law, it seems to the opposition that a fortiori if a court would be so circumspect and concerned to inform itself of the sufficiency of the material before it before making a civil order tying up a person’s assets on an ex parte basis, in a criminal case particularly, as I said in my speech in the second reading debate, where the commission of no offence is proved or required to be proved but merely the holding of a suspicion by the complainant, it is even more necessary that the discretionary safeguards, which courts always have when orders of this kind are made, should be preserved in this legislation as well.

As I said in my speech in the second reading debate, one must always be conscious of the unusual and draconian power which a court is being asked to exercise and, in the first instance in an application under what would be section 20A of the act, is being asked to exercise in circumstances where the person against whose interests the order is made does not have the opportunity to be heard at that stage of the proceedings to test the sufficiency, strength or accuracy of the allegations made against them. The opposition is strongly of the view that the discretion of the court should be protected, as the discretion of the court always ought to be protected, particularly when ex parte applications are made to it.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I indicate for the efficacy of the chamber and to Senator Brandis that my instructions, as the Minister representing the Attorney-General, are that the government will accept all of the opposition’s amendments. I will flag also—and, obviously, it is entirely a matter for Senator Brandis as to how he chooses to run the debate—that we would have no objection, subject to the chamber obviously, if he wished to move his amendments by leave together, insofar as he was able to do so. I propose, if I may, Senator Brandis, to just indicate broadly and to make a couple of points about the government’s view about the amendments, which may be of assistance.

I am advised that the government is prepared to accept the opposition’s amendments in the interests of ensuring passage of this important legislation. I indicate we have some reservations about the effect of the opposition’s amendments and the effectiveness of the proposed reforms. For example, amendments (1), (4), (6) and (7), to provide the court with a discretion to make unexplained wealth restraining orders, preliminary orders and final orders, are arguably inconsistent with the existing asset confiscation provisions in the Proceeds of Crime Act. It is desirable in the government’s view that once a court is satisfied a person has unexplained wealth it be required to make an unexplained wealth order.

Amendments (2) and (9), allowing a person to use their restrained assets to pay for legal representation, have the potential to create loopholes in the unexplained wealth scheme. Legal advisers have been known to assist their clients to launder the proceeds of crime. That is why the existing act, which was introduced by the coalition when in government, does not allow access to restrained assets for private legal representation. However, as I have already indicated, the government is keen to see passage of these amendments to ensure significant reforms to the bill and in that context is willing to agree to the position put by Senator Brandis through the amendments.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

I thank the minister for her indication of the government’s willingness to accept the entirety of the opposition’s amendments. In order to save the time of the chamber I therefore seek leave to move all of the opposition’s amendments together.

Leave granted.

I move:

(1)    Schedule 1, item 5, page 3 (line 23), omit “must”, substitute “may”.

(2)    Schedule 1, item 5, page 5 (after line 19), after subsection 20A(3), insert:

Legal expenses

     (3A)    Without limiting the manner and circumstances that may be specified in an order under paragraph (1)(b), the court may order that specified property may be disposed of or otherwise dealt with for the purposes of meeting a person’s reasonable legal expenses arising from an application under this Act.

      (3B)    The court may make an order under subsection (3A) despite anything in section 24.

      (3C)    The court may require that a costs assessor certify that legal expenses have been properly incurred before permitting the payment of expenses from the disposal of any property covered by an order under subsection (3A) and may make any further or ancillary orders it considers appropriate.

(3)    Schedule 1, item 5, page 5 (after line 25), after subsection 20A(4), insert:

     (4A)    If the court refuses to make a ^*restraining order under subsection (1), it may make any order as to costs it considers appropriate, including costs on an indemnity basis.

(4)    Schedule 1, item 5, page 5 (line 27), omit “must”, substitute “may”.

(5)    Schedule 1, item 12, page 7 (after line 33), at the end of section 45A, add:

        (4)    If a *restraining order ceases under subsection (1) or (2), the court may, on application by a person with an *interest in the property covered by the restraining order,  make any order as to costs it considers appropriate, including costs on an indemnity basis.

(6)    Schedule 1, item 13, page 8 (line 14), omit “must”, substitute “may”.

(7)    Schedule 1, item 13, page 10 (line 23), omit “must”, substitute “may”.

(8)    Schedule 1, item 13, page 11 (after line 24), after section 179E, insert:

179EA  Refusal to make an order for failure to give undertaking

        (1)    The court may refuse to make a ^*preliminary unexplained wealth order or an ^*unexplained wealth order if the Commonwealth refuses or fails to give the court an appropriate undertaking with respect to the payment of damages or costs, or both, for the making and operation of the order.

        (2)    The ^*DPP may give such an undertaking on behalf of the Commonwealth.

179EB  Costs

                 If the court refuses to make a ^*preliminary unexplained wealth order or an ^*unexplained wealth order, it may make any order as to costs it considers appropriate, including costs on an indemnity basis.

(9)    Schedule 1, item 13, page 17 (after line 18), after section 179S, insert:

179SA  Legal expenses

        (1)    If the court considers that it is appropriate to do so, it may order that the whole, or a specified part, of specified property covered by an order under subsection 179S(1) is not available to satisfy the ^*unexplained wealth order and may instead be disposed of or otherwise dealt with for the purposes of meeting a person’s reasonable legal expenses arising from an application under this Act.

        (2)    The court may require that a costs assessor certify that legal expenses have been properly incurred before permitting the payment of expenses from the disposal of any property covered by an order under subsection (1) and may make any further or ancillary orders it considers appropriate.

(10)  Schedule 1, item 13, page 17 (after line 33), at the end of the Part, add:

Division 5—Oversight

179U  Parliamentary supervision

        (1)    The operation of this Part and section 20A is subject to the oversight of the Parliamentary Joint Committee on the Australian Crime Commission (the Committee).

        (2)    The Committee may require the Australian Crime Commission, the Australian Federal Police, the ^*DPP or any other federal agency or authority that is the recipient of any material disclosed as the result of the operation of this Part to appear before it from time to time to give evidence.

In the time available I will speak quickly to the amendments merely to outline what they are. Before doing so, I will deal with the last point made by Senator Wong, that some of the opposition’s amendments—particularly those providing for the discretionary scheme—are arguably inconsistent with the existing scheme in the proceeds of crime legislation. They are. They provide for greater discretion than is available to courts under the proceeds of crime legislation but, as I indicated in my speech on the second reading, there is a very good reason for that. The proceeds of crime legislation assumes that there has been a conviction and that the purpose of that legislation is to forfeit to the Crown the ill-gotten gains of a person who has been convicted of the crime. This legislation proceeds on the basis that there has not been a conviction of any crime or, indeed, even a prosecution of any crime—merely, that the complainant has a reasonable suspicion as to the matters set out in section 20A of the act. So there is a very important material difference between the two. There is therefore no logical inconsistency between this legislation containing a safeguard in circumstances where the Proceeds of Crime Act contains none.

Let me deal quickly—just for the record—with what the opposition amendments do. I have dealt with the first opposition amendment—that is, the provision for a discretion in relation to the making of a restraining order. Opposition amendments (2) and (9) provide that a court may quarantine assets the subject of an unexplained wealth application in order for the respondent to obtain legal advice. I went to the reasons for those amendments in my speech on the second reading. The regime as initially proposed by the government would permit only legal aid representation if an order left insufficient funds to pay for the lawyer of a respondent’s choice. Unexplained wealth applications, as I said before, differ from proceeds of crime matters generally, as no specific crime needs to be alleged in this case whereas under proceeds of crime legislation it does. Where a person is compelled to explain their financial affairs on pain of forfeiture of their assets, justice demands that they should be able to fund an appropriate and sufficient defence against such a consequence.

Opposition amendments (3) and (5) provide the court with a discretion to make an appropriate costs order, including an order for indemnity costs if an application is unsuccessful. If an application for an unexplained wealth order is fundamentally misconceived or abusive, it is expected that a court will reflect its disapproval of the application with an appropriate costs order. That is a sanction available generally in the civil courts in relation to inappropriate applications. As I said earlier, this legislation—which proceeds by way of analogy with civil injunction proceedings for the arrest and detention of the assets of a defendant—should, in the opposition’s view, also provide for a costs regime equivalent to the costs regime and the capacity for a court in a proper case to order indemnity costs as well.

Finally, opposition amendment (4) provides for the discretion of the court to be instated in the legislation, and opposition amendments (6) and (7) reinstate the court’s discretion on the occasion of an application, inter partes, for a final order. I will leave it at that. There are some other technical amendments as well. I once again thank the government for conceding the points the opposition has raised for the reasons I outlined in the second reading debate. In particular, I thank the Attorney-General and his advisers, some of whom I see in the advisers box, for their consideration of the opposition’s position.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I will not repeat the position that I have already put on Hansard, on behalf of the government, in relation to the opposition amendments. On a slightly different matter, I would like to briefly put on record a response to a question raised earlier by Senator Xenophon, who is not in the chamber. He asked how the government would monitor and report on the effectiveness of the measures in the bill. I want to indicate on Hansard that the government obviously accepts the opposition amendment which provides for the oversight of unexplained wealth measures by the Parliamentary Joint Committee on the Australian Crime Commission. I am also advised that the Attorney-General’s Department will monitor the effectiveness of the measures in consultation with law enforcement agencies. The second bill also provides that the minister must cause a review of the operation of the Australian Crime Commission Act every five years.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

There is one other point I want to make in relation to the opposition amendments. Opposition amendment (8) provides for a requirement that there be an undertaking as to damages by the Commonwealth in relation to an application for a preliminary unexplained wealth order or a final unexplained wealth order. The undertaking as to damages is another mechanism by which civil courts protect against and penalise parties for the consequences of bringing inappropriate applications which have significantly deleterious consequences for the person who suffers the order of the court. By analogy, it is appropriate that that scheme be introduced into this legislation, hence opposition amendment (8).

Question agreed to.

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

Bill—by leave—taken as a whole.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (10) on sheet AF230:

(1)    Schedule 1, Part 5, page 40 (after line 30), at the end of the Part, add:

158A  Subparagraph 266A(1)(a)(i)

Omit “39(1)(d)”, substitute “39(1)(ca), (d) or (da)”.

(2)    Schedule 1, page 51 (after line 11), after item 200, insert:

200A  Subsection 298(1)

Omit “in a particular financial year”.

(3)    Schedule 1, item 207, page 52 (line 22), omit “or subparagraph 102(d)(ii)”, substitute “, subparagraph 102(d)(ii) or section 179L”.

(4)    Schedule 2, item 16, page 65 (line 23), at the end of subsection 3L(1), add “if he or she suspects on reasonable grounds that the data constitutes evidential material”.

(5)    Schedule 4, item 1, page 100 (after line 19), after subsection 390.3(3), insert:

Intention fault element for paragraphs (1)(c) and (2)(d)

     (3A)    The fault element for paragraphs (1)(c) and (2)(d) is intention (by the first person).

(6)    Schedule 4, item 1, page 101 (lines 6 to 28), omit paragraphs 390.3(6)(d) to (f), substitute:

             (d)    the association is only for the purpose of providing legal advice or legal representation in connection with judicial or administrative proceedings under a law of the Commonwealth, a State, a Territory or a foreign country; or

             (e)    the association is reasonable in the circumstances.

(7)    Schedule 4, item 1, page 101 (after line 30), after subsection 390.3(6), insert:

     (6A)    Paragraphs (6)(a), (b), (c), (d) and (e) do not limit one another.

(8)    Schedule 4, item 1, page 101 (line 32), omit “under subsection (1)”, substitute “against subsection (1) or (2)”.

(9)    Schedule 4, item 1, page 101 (line 34), omit “under subsection (1)”, substitute “against subsection (1) or (2)”.

(10)  Schedule 7, item 18, page 127 (line 2), omit “ACC”, substitute “examiner”.

George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

The opposition supports these amendments.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I thank Senator Brandis for that indication. I will make some very brief points about these amendments. The government amendments will implement three of the six substantive recommendations of the Senate Legal and Constitutional Affairs Legislation Committee and also address issues identified by the Senate committee, the Attorney-General’s Department and portfolio agencies. I can provide much more detail to the Senate, but I think Senator Brandis is well aware of the content of the amendments.

Question agreed to.

Bills, as amended, agreed to.

Bills reported with amendments; report adopted.