Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016 (CTH)

On 19 October 2016, the Federal Government introduced the Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016 into the lower house with the aim of making  amendments to a number of acts to ensure state integrity and anti-corruption bodies have the necessary powers to discharge their functions and to ensure property acquired unlawfully is not kept by criminals.

Background to the Bill

The Bill contains a range of measures to:

• support the establishment of the NSW Law Enforcement Conduct Commission (LECC) and its Inspector;
• align the Independent Broad-based Anti-corruption Commission of Victoria (IBAC) investigative powers with those available to other state anti-corruption bodies; and
• amend the Proceeds of Crime Act 2002 (POC Act) to clarify the definition of ‘lawfully acquired’ to address the issues raised in Commissioner of the Australian Federal Police v Huang [2016] WASC 5 (Huang). 

Amendments in the Bill

This Bill amends the following CTH Acts - 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.

The Bill comprises 3 schedules, and, according to the Explanatory Memorandum, they comprise of the following amendments.

Schedule 1 will amend the Telecommunications (Interception and Access) Act 1979 (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. 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.

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 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.

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’.

The Western Australian Supreme Court in Huang 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.

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.

The Bill is currently awaiting Second Reading Debate in the House of Representatives.

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Law Enforcement Legislation Amendment (State Bodies and Other Measures) Bill 2016 and secondary materials as reproduced in TimeBase LawOne