Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016
An Act to amend legislation relating to the criminal law, law enforcement and background checking, and for other purposes
1 Short title
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.6
2 Commencement
1 Section 1
Table of sections and commencement provision
29 February
2 Section 2
The day after this Act receives the Royal Assent.
1 March 2016
3 Section 3
29 August 2016
3 Schedules
Legislation in schedules is amended or repealed according to its terms.
1 Subsection 266A(2)
Permits disclosure of information under certain conditions.
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.8
Grants permission to disclose information.
Requires belief on reasonable grounds for disclosure.
Disclosure is permitted if certain conditions are met.
2 Section 315A
3 At the end of section 315A
Court may only hear application for forfeiture order after exclusion order has been determined.
Application for exclusion order has not been withdrawn.
Court may only hear application for forfeiture order.
4 Section 319
Repeal section and substitute with new content.
319 Stay of proceedings
319(1) Stay of proceedings
Court may stay proceedings in the interests of justice.
Court considers it in the interests of justice
319(2) Stay of proceedings
Court cannot stay POCA proceedings on certain grounds
(2) The court must not stay the POCA proceedings...
319(3) Stay of proceedings
Paragraph (2)(a) applies even if circumstances are the same or substantially similar.
even if circumstances are the same or substantially similar
319(4) Stay of proceedings
Paragraph (2)(b) applies even if the subject matter of the POCA proceedings is the same as, or substantially similar to, the matter at issue in the criminal proceedings.
The provision applies regardless of similarity in subject matter.
319(5) Stay of proceedings
Paragraph (2)(d) applies even if the staying of POCA proceedings would avoid a multiplicity of POCA proceedings.
319(6) Stay of proceedings
Court must consider certain matters when deciding whether to grant a stay of proceedings.
(6) In considering whether a stay of the POCA proceedings is in the interests of justice...
The court must have regard to the following matters:
319A Closed court
Court may order closed proceedings for administration of criminal justice.
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.10
5 Application provisions
1 At the end of Chapter 10 of the Criminal Code
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.12
490 Section 490
490(1) Section 490
Making, altering, destroying or concealing an accounting document is prohibited.
Prohibition of making, altering, destroying or concealing an accounting document.
490(2) Section 490
Definition of who is subject to the accounting document requirements.
490(3) Section 490
Absolute liability applies to paragraph (1)(c).
490(4) Section 490
Offence punishable by imprisonment, fine or both
490(5) Section 490
Offence against section 490 punishable by fine not exceeding certain amounts.
Prohibits punishment of certain amounts.
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.14
(1) A person commits an offence if: (a) the person: (i) makes, alters, destroys or conceals an accounting document;
Reckless failure to make or alter an accounting document is prohibited.
(b) the person is reckless as to whether the making, alteration, destruction or concealment of the document (or the failure to make or alter the document) facilitates, conceals or disguises...
Reckless facilitation of illegitimate benefits is prohibited.
(ii) the person receiving a benefit that is not legitimately due to the person;
Reckless concealment of illegitimate benefits is prohibited.
(iv) another person giving a benefit that is not legitimately due to the recipient, or intended recipient, of the benefit (who may be the first-mentioned person);
Reckless loss to another person is prohibited.
(v) loss to another person that is not legitimately incurred by the other person;
(4) An offence against this section committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:
Defines a temporal interval for determining the value of the benefit.
if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence—
Defines a recurring trace for determining the annual turnover.
5% of the annual turnover of the body corporate during the period (the turnover period) of 12 months ending at the end of the month in which the conduct constituting the offence occurred.
Diffuses the punishment amount based on the value of the benefit.
(b) if the court can determine the value of that benefit—1.5 times the value of that benefit;
Classifies the punishment amount based on the value of the benefit.
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.15
Excludes certain supplies from annual turnover calculation
Same meaning as in A New Tax System (Goods and Services Tax) Act 1999
Determine related bodies corporate for purposes of this Division
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.16
Obligation to determine related bodies corporate
No proof of certain matters is necessary in a prosecution for an offence against this Division.
No proof is necessary for the following matters:
Proceedings for an offence against this Division must not be commenced without the Attorney-General’s written consent under certain conditions.
Cannot commence proceedings without Attorney-General's written consent.
(1) Proceedings for an offence against this Division must not be commenced without the Attorney-General’s written consent if:
Defines a temporal interval for commencement of proceedings.
Provides justification for prohibition of proceedings.
Diffuses information about prohibited proceedings.
Recognizes the role of Attorney-General in prohibiting proceedings.
Arrest before consent is given is prohibited.
(2) However, a person may be arrested...
No exclusion or limitation of other laws
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.17
2 Dictionary of the Criminal Code
1 Paragraph 301.9(1)(b) of the Criminal Code
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.18
2 Subparagraph 301.9(1)(c)(iii) of the Criminal Code
Replace groups or atoms with other specified groups or atoms.
3 Subsection 301.9(2) of the Criminal Code
3(2) Subsection 301.9(2) of the Criminal Code
3(3) Subsection 301.9(2) of the Criminal Code
Excludes certain substances from being classified as drug analogues.
Prohibits certain substances from being classified as drug analogues.
Excludes substances that are themselves listed controlled drugs from being classified as drug analogues.
(b) a drug analogue of a listed border controlled drug does not include a substance that is itself a listed border controlled drug;
3(4) Subsection 301.9(2) of the Criminal Code
Definitions of 'addition' and 'replacement'
4 Subsection 305.1(1) of the Criminal Code
Defines manufacture for the purposes of this Part.
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.19
Includes specific processes in the definition of manufacture.
1 Section 5 (after paragraph (u) of the definition of
Designated agency includes Independent Commissioner Against Corruption of South Australia.
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.20
2 Section 5 (definition of foreign law enforcement agency)
Definition of foreign law enforcement agency
Defines the term 'foreign law enforcement agency'
Substitutes a new definition for the existing one
3 At the end of subsection 22(1)
List of persons appointed under the Independent Commissioner Against Corruption Act 2012 (SA)
Temporal relation between appointment and office
4 After paragraph 122(3)(b)
Duty to disclose information for the purposes of performing duties as an investigating official.
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.21
Imposes a duty on the agent to disclose information.
5 Application provision
Application provision for disclosure of information after commencement
1 Subsection 4(1) (definition of Commonwealth authority)
crimes-legislation-amendment-proceeds-of-crime-and-other-measures-act-2016.pdf, p.22
Substitutes a new definition for Commonwealth authority
2 Subsection 4(1)
Definition of State or Territory authority
3 Subparagraph 14(2)(b)(iii)
Repeal certain functions relating to law enforcement or national security.
4 Subparagraph 14(2)(b)(iv)
Insertion of clause after specific paragraph
Amendments apply in relation to use or disclosure of information after commencement.