Commonwealth Consolidated Acts

CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) ACT 2010 - SCHEDULE 4

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.

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

  (c)   to the extent that a physical element of the joint offence 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

  (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)".

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".

Part   2 -- Amendment of the Telecommunications (Interception and Access) Act 1979

Division   1--Offences involving criminal organisations

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

  (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.

16A   After subsection 5D(3)

Insert:

Offences relating to criminal groups

  (3AA)   An offence is also a serious offence if it is an offence against section   93T of the Crimes Act 1900 of New South Wales.

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; or

  (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

  (c)   if the offence is covered by subparagraph   (a)(ii)--the 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

Subsections 5D(3AA) and (9) of the Telecommunications (Interception and Access) Act 1979 apply whether the conduct constituting the offences concerned was engaged in before or after the commencement of this item.

Division   2--Use of information for purposes of organised crime control laws

Telecommunications (Interception and Access) Act 1979

18A   Subsection 5(1)

Insert:

"organised crime control law" means a law of a State, a purpose of which is to combat organised crime or restrict the activities of criminal organisations, that provides for:

  (a)   the declaration of an organisation as a declared organisation; or

  (b)   the making of orders described as control orders or interim control orders in relation to members of criminal organisations.

18B   Subsection 5(1) (at the end of subparagraphs   (c)(i), (ii), (iia) and (iib) of the definition of permitted purpose )

Add "or".

18C   Subsection 5(1) (at the end of paragraph   (c) of the definition of permitted purpose )

Add:

  (v)   the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, an organised crime control law of that State; or

18D   After paragraph 5B(1)(c)

Insert:

  (ca)   a proceeding under, or a proceeding relating to a matter arising under, an organised crime control law; or

18E   At the end of paragraphs 6L(1)(a), (b) and (c)

Add "or".

18F   After paragraph 6L(1)(c)

Insert:

  (ca)   a proceeding under, or in relation to a matter arising under, an organised crime control law of that State; or

18G   At the end of paragraph 6L(1)(d)

Add "or".

18H   After subparagraph 68(d)(i)

Insert:

  (ia)   the subject matter of a proceeding under, or in relation to a matter arising under, an organised crime control law of a State; or

18J   Application

The Telecommunications (Interception and Access) Act 1979 , as amended by this Division, applies in relation to the communication, use and making of a record of information, and the giving of information in evidence in proceedings, on or after the commencement of this item, whether the information was obtained before or after that commencement.

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.

Notes to the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010

Note 1

The Crimes Legislation Amendment (Serious and Organised Crime) Act 20 10 as shown in this compilation comprises Act No.   3 , 20 10 amended as indicated in the Tables below.

Table of Acts

Table of Amendments