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Crimes Legislation Amendment (Economic Disruption) Bill 2020

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Crimes Legislation Amendment (Economic Disruption) Bill 2020 Crimes Legislation Amendment (Economic Disruption) Bill 2020 Senate Legal and Constitutional Affairs Legislation Committee 16 October 2020 Telephone +61 2 6246 3788 • Fax +61 2 6248 0639 Email [email protected] GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612 Law Council of Australia Limited ABN 85 005 260 622 www.lawcouncil.asn.au Table of Contents About the Law Council of Australia ............................................................................... 3 Acknowledgement .......................................................................................................... 4 Executive Summary ........................................................................................................ 5 Overview of proposed amendments.............................................................................. 6 Money laundering offences (Schedule 1) ...................................................................... 6 New ‘tiers’ of offences for high-value money laundering............................................. 6 Proof of predicate offences ........................................................................................ 6 Fault elements for attempt offences in relation to Division 400 ................................... 8 Definition of ‘deals with’ in relation to money or property ............................................ 8 Partial defence of ‘mistake of fact as to value’ ........................................................... 9 Obligations in covert investigations (Schedule 2) .........................................................10 Money laundering offences (Schedule 1) .....................................................................10 Amendments to which the Law Council does not object ............................................... 11 Discrete offences for money or property valued at $10 million or above ................... 11 Issues of concern to the Law Council ........................................................................... 11 Fault elements for attempt offences in relation to Division 400 ..................................12 Vagueness and overbreadth in the concept of ‘proceeds of general crime’ ...............14 Maximum penalty of life imprisonment: proposed section 400.2B .............................17 Underlying problems in defining ‘possession’ of money or property as a form of ‘dealing’ for the purpose of money laundering offences ............................................19 The statutory concept of ‘dealing with’ money or property in section 400.2............19 The difficulties highlighted by the facts in Singh v The Queen ...............................20 The proposed amendments to section 400.10 .......................................................21 Law Council’s preferred solution ............................................................................21 Technical drafting matters concerning the new definition of ‘director’ ........................22 Absence of consultation with the national legal profession ........................................23 Investigation of Commonwealth offences (Schedule 2) ..............................................24 Policy objective ............................................................................................................26 Grounds for excluding evidence obtained in covert operations .....................................27 Law Council views ........................................................................................................28 Proposed amendments to the definition of an ‘investigating official’ ..........................28 Proposed removal of the obligations in subsection 23V(3) ........................................29 Legislative history of section 23V ..........................................................................29 The effect of repealing subsection 23V(3) .............................................................30 Specific impacts on the laws of the Australian Capital Territory..............................30 The significance of the requirements in subsection 23V(3) ....................................31 Absence of justification for removing the obligations in subsection 23V(3) ............32 Possible intention to make greater use of ‘scenario evidence’ techniques .............32 Recommendations .......................................................................................................33 Retention of subsection 23V(3) .................................................................................33 Strengthening the legislative framework governing the use of ‘scenario evidence’ techniques in undercover investigations ...................................................................33 Crimes Legislation Amendment (Economic Disruption) Bill 2020 Page 2 About the Law Council of Australia The Law Council of Australia exists to represent the legal profession at the national level, to speak on behalf of its Constituent Bodies on national issues, and to promote the administration of justice, access to justice and general improvement of the law. The Law Council advises governments, courts and federal agencies on ways in which the law and the justice system can be improved for the benefit of the community. The Law Council also represents the Australian legal profession overseas, and maintains close relationships with legal professional bodies throughout the world. The Law Council was established in 1933, and represents 16 Australian State and Territory law societies and bar associations and the Law Firms Australia, which are known collectively as the Council’s Constituent Bodies. The Law Council’s Constituent Bodies are: • Australian Capital Territory Bar Association • Australian Capital Territory Law Society • Bar Association of Queensland Inc • Law Institute of Victoria • Law Society of New South Wales • Law Society of South Australia • Law Society of Tasmania • Law Society Northern Territory • Law Society of Western Australia • New South Wales Bar Association • Northern Territory Bar Association • Queensland Law Society • South Australian Bar Association • Tasmanian Bar • Law Firms Australia • The Victorian Bar Inc • Western Australian Bar Association Through this representation, the Law Council effectively acts on behalf of more than 60,000 lawyers across Australia. The Law Council is governed by a board of 23 Directors – one from each of the constituent bodies and six elected Executive members. The Directors meet quarterly to set objectives, policy and priorities for the Law Council. Between the meetings of Directors, policies and governance responsibility for the Law Council is exercised by the elected Executive members, led by the President who normally serves a 12 month term. The Council’s six Executive members are nominated and elected by the board of Directors. Members of the 2020 Executive as at 1 January 2020 are: • Ms Pauline Wright, President • Dr Jacoba Brasch QC, President-elect • Mr Tass Liveris, Treasurer • Mr Ross Drinnan, Executive Member • Mr Greg McIntyre SC, Executive Member • Ms Caroline Counsel, Executive Member The Secretariat serves the Law Council nationally and is based in Canberra. Crimes Legislation Amendment (Economic Disruption) Bill 2020 Page 3 Acknowledgement The Law Council is grateful for the assistance of its National Criminal Law Committee, its Anti-Money Laundering and Counter-Terrorism Financing Working Group and the Queensland Law Society in the preparation of this submission. Crimes Legislation Amendment (Economic Disruption) Bill 2020 Page 4 Executive Summary 1. The Law Council of Australia is pleased to provide this submission to the Senate Legal and Constitutional Affairs Legislation Committee (Committee) inquiry into the Crimes Legislation Amendment (Economic Disruption) Bill 2020 (Bill). Focus of submission 2. This submission comments on the measures in Schedules 1 and 2 to the Bill, which respectively propose amendments to the money laundering offences in Division 400 of the Criminal Code Act 1995 (Cth) (Criminal Code); and certain investigative provisions in Part IC of the Crimes Act 1914 (Cth) (Crimes Act). The Law Council would be pleased to assist the Committee with any questions it may have about the measures in Schedules 3-7, in relation to the Proceeds of Crime Act 2002 (Cth). Law Council position 3. The Law Council supports the intent of the Bill to ensure that Commonwealth money laundering offences and investigative powers are adapted to the contemporary modus operandi of groups engaged in transnational serious and organised crime. 4. The Law Council recognises that money laundering is a significant enabler of transnational, serious and organised crime because it is a mechanism through which criminal organisations realise, conceal and reinvest profits from illicit activity. The Law Council also acknowledges the significant difficulties identified in the Explanatory Memorandum to the Bill in relation to the investigation and enforcement of money laundering offences in contemporary circumstances.1 5. These difficulties are said to have arisen from the diffuse, opaque and dynamic nature of the legal, financial and administrative arrangements that organised crime syndicates have adopted to conceal the criminal origins of the funds and evade tracing, particularly by establishing complex distribution chains, and tightly limiting the information that is known to each person in a chain about the origins and ultimate destinations of funds. It has also been observed
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