The Government introduced the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016 into the House of Reps on Wed 19.10.2016.

This Bill will amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, Australian Postal Corporation Act 1989, Crimes Act 1914, Criminal Code Act 1995, Privacy Act 1988, Proceeds of Crime Act 2002, Radiocommunications Act 1992, Surveillance Devices Act 2004, Taxation Administration Act 1953 and the Telecommunications (Interception and Access) Act 1979 for the following purposes.

NSW ‘Law Enforcement Conduct Commission’ (LECC)

  1. Schedule 1 will amend the (TIA Act) to replace references to the NSW Police Integrity Commission (PIC) with the LECC within the definition of eligible authority and criminal law enforcement agency and references to the Inspector of the PIC with the Inspector of the LECC within the definition of eligible authority.
  2. The LECC will be responsible for the detection, investigation and prevention of police corruption and misconduct. The Inspector of the LECC will oversight LECC operations and the use of covert powers by NSW law enforcement. The LECC will replace the existing and have comparable investigative powers to other anti-corruption bodies in Australia
  3. The inclusion of the LECC within the definition of eligible authority will allow the Attorney-General to declare it to be an ‘interception agency’ if the respective State legislation meets the requirements in section 35 of the TIA Act. Under section 35 of the TIA Act, the Attorney-General may only make such a declaration if satisfied that state legislation sets out minimum recordkeeping requirements and establishes an independent oversight regime. The State must also have entered into an agreement to pay all expenses connected with the issue of warrants to the agency.

Independent Broad-based Anti-corruption Commission of Victoria (IBAC)

  1. Schedule 2 will amend a number of Commonwealth Acts to allow the IBAC to access information from Commonwealth agencies that relates to its investigations. Schedule 2 will also extend defences for certain Commonwealth telecommunications offences to the IBAC. The powers provided under this Bill to the IBAC are pursuant to the IBAC‘s role in identifying and investigating corruption in public administration in Victoria and are the same as those available to other state anti-corruption bodies (viz: the Independent Commissioner Against Corruption of New South Wales, the Crime and Corruption Commission (Queensland), the Corruption and Crime Commission (Western Australia) and the Independent Commissioner Against Corruption of South Australia).

‘Lawfully acquired’ – amend the POC Act to ‘clarify’ meaning after Huang case

  1. Schedule 3 will amend section 336A of the POC Act to clarify that property or wealth is not to be considered ‘lawfully acquired’ where it has been subject to a security or liability that has been wholly or partly discharged using property that is not ‘lawfully acquired’.
  2. The Western Australian Supreme Court in Huang [2016] WASC 5 held that it could not consider the source of funds used to satisfy a mortgage over a residential property in determining whether this property was ‘lawfully acquired’, despite the possibility that unlawfully acquired funds had been used to make mortgage repayments. The Court was therefore bound to exclude the residential property from forfeiture.
  3. The interpretation of the meaning of ‘lawfully acquired’ in the Huang decision is contrary to the intended meaning and to the objects of the POC Act – which is to deprive people of the proceeds of offences, of unexplained wealth amounts, and to undermine the profitability of criminal enterprises.
  4. Criminals regularly use asset protection structures to hide or disguise proceeds of crime, including using a range of mortgages, loans, and other agreements to achieve this purpose. The amendments will clarify that, where illegitimate funds are used to discharge a legitimately obtained security (such as a mortgage), property or wealth obtained using this security is not considered ‘lawfully acquired’ under section 336A.

[APH – Bills Digest, Bill & EM] [LTN 202, 19/10/16]