Corruption, Crime and Misconduct and Criminal Property Confiscation Amendment Act 2018 00-00-01 Xml

Western Australia

Corruption, Crime and Misconduct and Criminal Property Confiscation Amendment Act 2018

No. 10 of 2018

An Act to —

•amend the Corruption, Crime and Misconduct Act 2003 in relation to unexplained wealth and other matters; and

•amend the Criminal Property Confiscation Act 2000 in relation to the role of the Corruption and Crime Commission.

[Assented to 13 July 2018]

The Parliament of Western Australia enacts as follows:

Part 1 — Preliminary

1.Short title

This is the Corruption, Crime and Misconduct and Criminal Property Confiscation Amendment Act 2018.

2.Commencement

This Act comes into operation as follows —

(a)Part 1 — on the day on which this Act receives the Royal Assent;

(b)the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

Part 2 — Corruption, Crime and Misconduct Act 2003 amended

3.Act amended

This Part amends the Corruption, Crime and Misconduct Act 2003.

4.Long title amended

In the long title delete “organised crime; and” and insert:

organised crime and with respect to the confiscation of unexplained wealth and criminal benefits; and

5.Section 3 amended

(1)In section 3(1) insert in alphabetical order:

authorised officer has the meaning given in section 184(1);

criminal benefit has the meaning given in the Criminal Property Confiscation Act 2000 section 145;

unexplained wealth has the meaning given in the Criminal Property Confiscation Act 2000 section 144;

(2)In section 3(1) in the definition of investigation after “under” insert:

section 21AD or

6.Section 7A amended

In section 7A:

(a)in paragraph (b) delete “sector.” and insert:

sector; and

(b)after paragraph (b) insert:

(c)to facilitate the exercise of the Commission’s functions under the Criminal Property Confiscation Act 2000.

7.Section 7B amended

After section 7B(6) insert:

(7)The Commission is to be able to investigate matters in relation to unexplained wealth and criminal benefits for the purpose of the exercise of its functions under the Criminal Property Confiscation Act 2000.

8.Section 21AD inserted

At the end of Part 2 Division 2 insert:

21AD.Unexplained wealth functions

(1)The Commission has the functions (unexplained wealth functions) that are conferred on it under the Criminal Property Confiscation Act 2000.

(2)The Commission may decide to exercise its unexplained wealth functions on the basis of —

(a)consultations, and investigations and other actions (either by itself or in cooperation with independent agencies, appropriate authorities and other relevant persons or bodies); or

(b)information otherwise given to the Commission.

(3)The Commission may exercise its powers under this Act to assist in the performance of its functions under the Criminal Property Confiscation Act 2000.

(4)For the purposes of the Criminal Property Confiscation Act 2000, the Commission may make such use as it thinks fit of any information obtained by it under this Act.

(5)Without limiting how the Commission may perform its unexplained wealth functions, the Commission may —

(a)investigate, either by itself or in cooperation with another body, whether a person has or may have acquired unexplained wealth or a criminal benefit; and

(b)consult, cooperate and exchange information with independent agencies, appropriate authorities and any other relevant persons and bodies.

9.Section 91 amended

In section 91(2):

(a)in paragraph (q) delete “functions.” and insert:

functions; and

(b)after paragraph (q) insert:

(r)a description of the Commission’s activities during that year in relation to its unexplained wealth functions.

10.Section 94 amended

(1)In section 94(1) delete “investigation,” and insert:

investigation under Part 3,

(2)After section 94(1) insert:

(1A)For the purposes of its functions under section 21AD, the Commission may, by written notice served on a person, require the person to produce a statement of information.

(3)In section 94(3)(a) delete “authority or public officer; and” and insert:

authority, public officer or other person served with the notice; and

(4)In section 94(4)(c) delete “authority or public officer.” and insert:

authority, public officer or other person served with the notice.

(5)In section 94(5):

(a)in paragraph (c) delete “action.” and insert:

action; or

(b)after paragraph (c) insert:

(d)under subsection (5A).

(6)After section 94(5) insert:

(5A)A statement of information produced in compliance with a notice served under subsection (1A) is admissible in evidence in any proceeding under the Criminal Property Confiscation Act 2000.

11.Section 122 amended

After section 122(2) insert:

(2A)Subsection (2) does not apply to an authority to conduct a controlled operation in respect of a matter relating to the Commission’s functions under section 21AD.

12.Section 136 amended

In section 136 delete “functions under this Part.” and insert:

functions.

13.Section 137 amended

(1)In section 137 delete “The” and insert:

(1)The

(2)At the end of section 137 insert:

(2)Except as specified in the Criminal Property Confiscation Act 2000 section 60A, this Part does not apply to examinations conducted by the Commission under Part 5 Division 2 of that Act.

14.Section 144 amended

(1)Before section 144(1) insert:

(1A)In this section —

unexplained wealth requirement means —

(a)a requirement under section 94(1A); or

(b)a requirement under section 95 made for the purposes of the Commission’s functions under section 21AD.

(2)In section 144(1) delete “subsection (2),” and insert:

subsections (2) to (5),

(3)After section 144(2) insert:

(3)A person is not entitled to contravene an unexplained wealth requirement in relation to any information, document or other thing on the basis that the information, document or thing is subject to legal professional privilege, or contains or is likely to contain information that would, apart from this subsection, be subject to legal professional privilege.

(4)Any information, document or other thing produced or obtained under an unexplained wealth requirement is not inadmissible in any proceedings under this Act or the Criminal Property Confiscation Act 2000 only because the information, document or other thing would, apart from this subsection, be subject to legal professional privilege.

(5)Nothing in this section affects the operation of the Criminal Property Confiscation Act 2000 section 139.

15.Section 145 amended

(1)In section 145(1):

(a)after “statement” (each occurrence) insert:

or disclosure

(b)delete paragraph (a) and insert:

(a)any criminal proceedings other than proceedings for an offence under this Act; or

(c)in paragraph (b)(ii) delete “against” and insert:

under

(2)After section 145(1) insert:

(1A)Despite subsection (1), a statement or disclosure made by a witness in answer to a question that the Commission requires the witness to answer is admissible in evidence against the person making the statement or disclosure —

(a)in any proceedings under the Criminal Property Confiscation Act 2000; and

(b)in any civil proceeding.

(3)In section 145(2) after “statement” insert:

or disclosure

(4)After section 145(2) insert:

(3)For the purposes of this section, the transcript of an examination of a witness is admissible as evidence of a statement or disclosure made by the witness in answer to a question that the Commission requires the witness to answer.

16.Section 148 amended

After section 148(1) insert:

(1A)If a person who has been served under the Criminal Property Confiscation Act 2000 section 59 with a copy of an examination order made by the Commission fails to attend before the Commission as required under the examination order, the Commission may, on proof by a statement verified by statutory declaration that the examination order was served, issue a warrant for the apprehension of that person.

17.Section 151 amended

In section 151(1) in the definition of restricted matter paragraph (c) delete “this Act;” and insert:

this Act or by an authorised officer under the Criminal Property Confiscation Act 2000;

18.Section 157 amended

In section 157 in the definition of reasonable excuse:

(a)delete “otherwise.” and insert:

otherwise; or

(b)after paragraph (b) insert:

(c)the production of the document or other thing might, but for section 144(3), be subject to legal professional privilege.

19.Section 160A inserted

After section 160 insert:

160A.Contempts in relation to examination orders under the Criminal Property Confiscation Act 2000

(1)Subsection (2) applies to a person who has been served under the Criminal Property Confiscation Act 2000 section 59 with an examination order made by the Commission.

(2)A person to whom this subsection applies is in contempt of the Commission if the person fails, without reasonable excuse, to —

(a)attend before the Commission as required under the examination order; or

(b)produce any document or other thing as required under the examination order.

(3)Subsection (4) applies to a person who has been served under the Criminal Property Confiscation Act 2000 section 59 with an examination order made by the Commission requiring the person to attend before the Commission and give information.

(4)A person to whom this subsection applies is in contempt of the Commission if the person —

(a)refuses or fails to be sworn or make an affirmation; or

(b)fails to answer any question relevant to the examination that the Commission requires the person to answer.

20.Section 162 amended

Before section 162(1) insert:

(1A)In this section —

examination includes an examination conducted by the Commission under the Criminal Property Confiscation Act 2000.

21.Section 163 amended

In section 163(5) delete “summons.” and insert:

summons served under section 96.

22.Section 184 amended

(1)After section 184(3b) insert:

(3BA)For the purposes of the Criminal Property Confiscation Act 2000, an authorised officer has the powers that are specified in that Act as powers of an authorised CCC officer.

(2)In section 184(3c) delete “(3b).” and insert:

(3BA).

23.Section 217 amended

After section 217(3) insert:

(4)In any proceeding under this or any other Act, or application for an order or declaration under the Criminal Property Confiscation Act 2000, a document signed by the Commission and stating that an examination order has been made by the Commission under the Criminal Property Confiscation Act 2000 section 58(1) is evidence of the matter stated.

24.Section 223A amended

Delete section 223A(1) and insert:

(1)The Criminal and Found Property Disposal Act 2006 applies to and in respect of —

(a)anything seized under this Act, other than a thing seized under section 75(4); and

(b)anything seized by an authorised officer under the Criminal Property Confiscation Act 2000.

25.Section 226A inserted

After section 226 insert:

226A.Review of 2018 amendments to Act

(1)The Minister must carry out a review of the operation and effectiveness of the amendments made to this Act by the Corruption, Crime and Misconduct and Criminal Property Confiscation Amendment Act 2018 as soon as is practicable after every 5th anniversary of the date on which the Corruption, Crime and Misconduct and Criminal Property Confiscation Amendment Act 2018 section 8 comes into operation.

(2)The Minister must prepare a report based on each review and cause it to be laid before each House of Parliament —

(a)as soon as practicable after the review is completed; but

(b)not later than 1 year after each 5 year anniversary.

Part 3 — Criminal Property Confiscation Act 2000 amended

26.Act amended

This Part amends the Criminal Property Confiscation Act 2000.

27.Section 10 amended

In section 10(2) delete “DPP must notify the” and insert:

DPP or the CCC, as the case requires, must notify the relevant

28.Section 11 amended

In section 11(1) after “DPP” insert:

or the CCC

29.Section 12 amended

In section 12(1) delete “person’s” (each occurrence) and insert:

respondent’s

30.Section 15 amended

In section 15(1) after “DPP” insert:

or the CCC

31.Section 27 amended

In section 27(1) after “DPP” insert:

or the CCC

32.Section 30 amended

In section 30(1) after “DPP” insert:

or the CCC

33.Section 31 amended

(1)In section 31(1) delete “DPP” and insert:

applicant for the declaration

(2)In section 31(2) delete “DPP must lodge with the” and insert:

applicant for the declaration must lodge with the relevant

Note:The heading to amended section 31 is to read:

Applicant’s duty to lodge memorial of confiscation

34.Section 32 amended

In section 32 delete “DPP” and insert:

applicant for the declaration

35.Section 36 amended

In section 36(3) after “notify the” insert:

relevant

36.Section 39 amended

In section 39(5) after “notify the” insert:

relevant

37.Section 41 amended

In section 41(1) after “DPP” insert:

or the CCC

38.Section 43 amended

(1)Delete section 43(1) and insert:

(1)The court may make a freezing order for property if —

(a)an examination order, a monitoring order or a suspension order obtained by the applicant for the freezing order is in force in relation to the property; or

(b)the applicant for the freezing order advises the court that the applicant has applied for an examination order, monitoring order or suspension order in relation to the property or is likely to apply for such an order within 21 days after the freezing order is made; or

(c)the CCC advises the court that the CCC has made an examination order in relation to the property, or is likely to make an examination order in relation to the property within 21 days after the freezing order is made.

(2)In section 43(3)(c) delete “DPP” and insert:

applicant for the freezing order

39.Section 45 amended

In section 45(c) delete “DPP,” and insert:

applicant for the order,

40.Section 46 amended

In section 46(3) after “notify the” insert:

relevant

41.Section 47 amended

In section 47(1) delete “DPP.” and insert:

applicant for the order.

42.Section 48 amended

In section 48(4):

(a)after “likely to be made,” insert:

or that an examination order is likely to be made by the CCC,

(b)after paragraph (a) insert:

(ab)where the freezing order was made on the basis of advice given to the court under section 43(1)(c) that an examination order is likely to be made — the examination order is not made within 21 days after the date of the freezing order; or

43.Section 49 amended

In section 49(2):

(a)after “likely to be made,” insert:

or that an examination order is likely to be made by the CCC,

(b)after paragraph (a) insert:

(ab)if the freezing order was made on the basis of advice given to the court under section 43(1)(c) that an examination order is likely to be made — the examination order is not made within 21 days after the date of the freezing order;

44.Section 53 amended

In section 53 delete “DPP or a police officer” and insert:

DPP, a police officer or an authorised CCC officer

45.Section 54 amended

(1)In section 54(1) delete “DPP or a police officer” and insert:

DPP, a police officer or an authorised CCC officer

(2)After section 54(1) insert:

(1A)Without limiting subsection (1), an authorised CCC officer may require a financial institution to do any or all of the actions set out in subsection (1)(a) to (f) for the purposes of any of the following —

(a)any proceeding under the Corruption, Crime and Misconduct Act 2003 that relates to the performance of the CCC’s functions under section 21AD of that Act;

(b)assisting the CCC to decide whether to make an examination order under this Act;

(c)assisting the CCC to decide whether to apply for, or make, any order under the Corruption, Crime and Misconduct Act 2003 that relates to the performance of the CCC’s functions under section 21AD of that Act.

46.Section 58 amended

(1)In section 58(1) after “court” insert:

or the CCC

(2)In section 58(2)(a), (b), (c) and (d) after “court” insert:

or the CCC, as the case requires,

(3)In section 58(2)(e) after “court” insert:

or before the CCC at a place specified in the order, as the case requires,

Note:The heading to amended section 58 is to read:

Court and CCC powers when making examination order

47.Section 59 amended

In section 59(1) after “examination order” insert:

or, if the examination order is made by the CCC, the CCC

48.Section 60A inserted

After section 60 insert:

60A.Examination by CCC

The Corruption, Crime and Misconduct Act 2003 sections 135, 136, 138(3), 141, 142, 143 and 147 apply in relation to an examination order made by the CCC and to an examination conducted by the CCC under this Division as if the examination were being conducted for the purposes of an investigation under that Act.

49.Section 61 amended

(1)After section 61(5) insert:

(5A)Subsection (5) applies in relation to an examination order made by the CCC and an examination conducted by the CCC under this Division despite the Corruption, Crime and Misconduct Act 2003 section 147(3) as applied under section 60A.

(2)In section 61(7) after “examination order” insert:

made by the court

(3)After section 61(7) insert:

(8)The Corruption, Crime and Misconduct Act 2003 section 145 applies in relation to the admissibility in evidence of a statement or disclosure made by a person in the course of complying with an examination order made by the CCC.

50.Section 62 amended

In section 62(1) after “DPP” insert:

or the CCC

51.Section 63 amended

Delete section 63(2) and insert:

(2)The order may direct the person —

(a)to give the property‑tracking document to —

(i)the DPP or a police officer, if the DPP applied for the order; or

(ii)the CCC or an authorised CCC officer, if the CCC applied for the order;

(b)to make the property‑tracking document available to —

(i)the DPP or a police officer for inspection, if the DPP applied for the order; or

(ii)the CCC or an authorised CCC officer, if the CCC applied for the order.

52.Section 64 amended

(1)In section 64(1):

(a)delete “DPP or a police officer” and insert:

DPP, a police officer, the CCC or an authorised CCC officer

(b)delete “DPP or police officer” and insert:

DPP, police officer, CCC or authorised CCC officer

(2)In section 64(2) delete “DPP or police officer” (each occurrence) and insert:

DPP, police officer, CCC or authorised CCC officer

(3)In section 64(3):

(a)delete “DPP or a police officer,” and insert:

DPP, a police officer, the CCC or an authorised CCC officer

(b)delete “DPP or police officer” and insert:

DPP, police officer, CCC or authorised CCC officer

53.Section 65 amended

(1)In section 65(2) delete “DPP or a police officer” and insert:

DPP, a police officer, the CCC or an authorised CCC officer

(2)In section 65(3)(a) and (c) delete “DPP or a police officer” and insert:

DPP, a police officer, the CCC or an authorised CCC officer

54.Section 66 amended

In section 66(1):

(a)delete “DPP or a police officer,” and insert:

DPP, a police officer, the CCC or an authorised CCC officer,

(b)delete “DPP or a police officer for” and insert:

DPP, a police officer or the CCC (as the case requires) for

55.Section 67 amended

In section 67(1) and (2) after “DPP” insert:

or the CCC

56.Section 68 amended

(1)Delete section 68(1) and insert:

(1)The court may order a financial institution to give information about all transactions carried out through an account held with the institution by a person named in the order to —

(a)the DPP or a police officer, if the DPP applied for the order; or

(b)the CCC, if the CCC applied for the order.

(2)Delete section 68(2)(a) and (b) and insert:

(a)to notify the following persons immediately of any transaction that has been initiated in connection with an account held with the institution by a person named in the order —

(i)the DPP or a police officer, if the DPP applied for the order;

(ii)the CCC, if the CCC applied for the order;

and

(b)to notify the following persons immediately if there are reasonable grounds for suspecting that a transaction is about to be initiated in connection with the account —

(i)the DPP or a police officer, if the DPP applied for the order;

(ii)the CCC, if the CCC applied for the order;

and

57.Section 70 amended

In section 70(1)(a) delete “DPP” and insert:

DPP, a police officer or an authorised CCC officer

58.Section 71 amended

(1)Delete section 71(1)(a) and insert:

(a)the DPP or a police officer, if the restricted disclosure relates to —

(i)information intended to be given to, or that has been given to, the DPP or a police officer under section 53; or

(ii)a requirement made by, or response given to, the DPP or a police officer under section 54; or

(iii)a production order, examination order, monitoring order or suspension order for which the DPP applied;

(aa)the CCC or an authorised CCC officer, if the restricted disclosure relates to —

(i)information intended to be given to, or that has been given to, the CCC or an authorised CCC officer under section 53; or

(ii)a requirement made by, or response given to, the CCC or an authorised CCC officer under section 54; or

(iii)an examination order made by the CCC or a monitoring order or suspension order for which the CCC applied;

(2)Delete section 71(2) and insert:

(2)An individual who is not acting in the capacity of an officer of a corporation or of a legal practitioner may make a restricted disclosure to any one or more of the following —

(a)the DPP or a police officer, if the restricted disclosure relates to —

(i)information intended to be given to, or that has been given to, the DPP or a police officer under section 53; or

(ii)a requirement made by, or response given to, the DPP or a police officer under section 54; or

(iii)a production order, examination order, monitoring order or suspension order for which the DPP applied;

(b)the CCC or an authorised CCC officer, if the restricted disclosure relates to —

(i)information intended to be given to, or that has been given to, the CCC or an authorised CCC officer under section 53; or

(ii)a requirement made by, or response given to, the CCC or an authorised CCC officer under section 54; or

(iii)an examination order made by the CCC or a monitoring order or suspension order for which the CCC applied;

(c)a legal practitioner, but only for the purpose of obtaining legal advice or representation in relation to an examination order, if the restricted disclosure is about information intended to be given to or that has been given to, the DPP, a police officer, the CCC or an authorised CCC officer.

59.Section 73 amended

(1)In section 73(1) and (2) after “police officer” insert:

or an authorised CCC officer

(2)In section 73(3):

(a)delete “his or her” and insert:

their

(b)after “police officer” insert:

or an authorised CCC officer

(3)In section 73(4) after “police officer” insert:

or an authorised CCC officer

(4)In section 73(5):

(a)delete “his or her” and insert:

their

(b)after “police officer” insert:

or an authorised CCC officer

60.Section 74 amended

In section 74(1) and (3) after “police officer” insert:

or an authorised CCC officer

61.Section 75 amended

(1)In section 75(1) delete “exercises his or her” and insert:

or an authorised CCC officer exercises their

(2)In section 75(2) after “police officer” insert:

or authorised CCC officer

62.Section 76 amended

In section 76(1) delete “exercises any of his or her” and insert:

or an authorised CCC officer exercises any of their

63.Section 77 amended

In section 77 after “police officer” insert:

or an authorised CCC officer

64.Section 78 amended

In section 78 after “police officer” insert:

or an authorised CCC officer

65.Section 88 amended

(1)In section 88(1) after “seized” insert:

by a police officer, whether

(2)After section 88(1) insert:

(1A)The CCC has responsibility for the control and management of property seized by an authorised CCC officer under a warrant under section 74.

66.Section 89 amended

(1)In section 89(1) after “frozen property” insert:

(except frozen property to which subsection (1A) relates)

(2)After section 89(1) insert:

(1A)The CCC has responsibility for the control and management of frozen property that is subject to a freezing order applied for by the CCC unless the court otherwise orders under section 45(c) or 91(2).

(3)In section 89(2) after “confiscated property” insert:

(except confiscated property to which subsection (2A) relates)

(4)After section 89(2) insert:

(2A)Until the property is disposed of, the CCC has responsibility for the control and management of confiscated property that is —

(a)property confiscated under section 6 to pay the amount specified in an unexplained wealth declaration or criminal benefits declaration obtained by the CCC; or

(b)frozen property confiscated under section 7 that is the subject of a freezing order obtained by the CCC.

(5)In section 89(3):

(a)delete “The DPP” and insert:

The DPP or the CCC

(b)delete “the DPP has responsibility under subsection (1) or (2) —” and insert:

the DPP or CCC (as the case requires) has responsibility under this section —

67.Section 90 amended

In section 90 after “DPP” insert:

or the CCC

Note:The heading to amended section 90 is to read:

Capacity of DPP or CCC to carry out transactions

68.Section 103 amended

In section 103 after “DPP” insert:

or the CCC

69.Section 108 amended

(1)In section 108:

(a)delete “For the” and insert:

(1)For the

(b)after “under an examination order” insert:

made by the court

(2)At the end of section 108 insert:

(2)The Corruption, Crime and Misconduct Act 2003 section 145 applies in relation to the admissibility in evidence of a statement or disclosure made by a person in the course of complying with an examination order made by the CCC.

70.Section 118 amended

In section 118(4) after “DPP,” insert:

the CCC

71.Section 122 amended

In section 122(2) after “DPP,” insert:

the CCC

72.Section 126 amended

In section 126(1) and (3) delete “DPP” and insert:

DPP, the CCC

73.Section 127 amended

In section 127(1) and (3) delete “DPP” and insert:

DPP, the CCC

74.Section 131 amended

In section 131(2):

(a)in paragraph (e) after “Police” insert:

or the CCC

(b)in paragraph (f) delete “DPP” and insert:

DPP, the CCC

75.Section 132 amended

(1)In section 132(1):

(a)delete “in the performance of the functions of a police officer” and insert:

or an authorised CCC officer in the performance of the officer’s functions

(b)delete “assisting a police officer” and insert:

assisting a police officer or an authorised CCC officer

(2)In section 132(2):

(a)delete “in the performance of the police” and insert:

or an authorised CCC officer in the performance of the

(b)delete “assisting a police officer” and insert:

assisting a police officer or an authorised CCC officer

Note:The heading to amended section 132 is to read:

Obstructing police officers or authorised CCC officers

76.Section 134A inserted

After section 134 insert:

134A.CCC’s power to delegate

(1)The CCC may delegate to an officer of the CCC the performance of any of the functions of the CCC under this Act, except the following —

(a)the power to make an order under section 58(1);

(b)the power to examine a person under oath;

(c)this power of delegation.

(2)A delegation —

(a)must be made by written instrument; and

(b)is made on behalf of and subject to the direction and control of the CCC; and

(c)may be made generally or as otherwise provided by the instrument.

77.Section 135 amended

In section 135(1) after “DPP” insert:

or the CCC

78.Section 140A inserted

After section 140 insert:

140A.Review of 2018 amendments to Act

(2)The Minister must prepare a report based on each review and cause it to be laid before each House of Parliament —

(a)as soon as practicable after the review is completed; but

(b)not later than 1 year after each 5 year anniversary.

79.Glossary clause 1 amended

In the Glossary clause 1 insert in alphabetical order:

authorised CCC officer means an authorised officer as defined in the Corruption, Crime and Misconduct Act 2003 section 184(1);

CCC means the Corruption and Crime Commission established under the Corruption, Crime and Misconduct Act 2003 section 8(1);

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By Authority: KEVIN J. McRAE, Government Printer