Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015
1. The Law Council is pleased to provide the following submission to the Senate Legal and Constitutional Affairs Committee (the Committee) on the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 (the Bill).
2. This submission focuses on the following aspects of the Bill.
3. Schedule 1 of the Bill would amend the Proceeds of Crime Act 2002 (Cth) (POCA) to clarify the operation of the non-conviction based proceeds of crime regime. This Schedule aims to override two Court decisions1 and appears to be testing the limits of Constitutional validity. There is a question as to whether provisions in this Schedule may be constitutionally invalid on the basis that it is inimical to the exclusivity of the exercise of Commonwealth judicial power and the inherent powers of the court and/or contrary to an inviolable feature of the institution of trial by jury in section 80 of the Commonwealth Constitution.
4. For this reason, the POCA amendments in Schedule 1 should not be enacted. If they are to proceed, the provisions directing the court as to when it may not grant a stay of proceedings should be removed and replaced by a general discretion in the court that identifies various factors for a court to consider and weigh. These factors include those outlined in this submission.
5. The Bill would also create two new offences of false dealing with accounting documents. The proposed offences would carry significant penalties and should require, as a minimum, an intention on behalf of the defendant that a person receive or give a benefit, or incur a loss.