2010 THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Attorney-General) Crimes (Serious Organised Crime) Amendment Bill 2010 Contents Page Part 1 Preliminary 1 Name of Act 2 2 Commencement 2 Part 2 Crimes Act 1900 3 Legislation amended--pt 2 3 4 New section 35A 3 Part 3 Criminal Code 2002 5 Legislation amended--pt 3 4 J2009-830 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page 6 Complicity and common purpose Section 45 (1) to (6) 4 7 New section 45A 5 8 Section 46 heading 7 9 New chapter 6A 8 10 New section 709A 12 11 Dictionary, note 2 13 12 Dictionary, new definitions 13 contents 2 Crimes (Serious Organised Crime) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Attorney-General) Crimes (Serious Organised Crime) Amendment Bill 2010 A Bill for An Act to amend the Crimes Act 1900 and the Criminal Code in relation to serious organised crime The Legislative Assembly for the Australian Capital Territory enacts as follows: J2009-830 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 1 1 Part 1 Preliminary 2 1 Name of Act 3 This Act is the Crimes (Serious Organised Crime) Amendment Act 4 2010. 5 2 Commencement 6 This Act commences on the day after its notification day. 7 Note The naming and commencement provisions automatically commence on 8 the notification day (see Legislation Act, s 75 (1)). page 2 Crimes (Serious Organised Crime) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 3 1 Part 2 Crimes Act 1900 2 3 Legislation amended--pt 2 3 This part amends the Crimes Act 1900. 4 4 New section 35A 5 insert 6 35A Affray 7 A person commits an offence if-- 8 (a) the person uses, or threatens to use, unlawful violence towards 9 someone else; and 10 (b) the use or threat would be likely to cause a reasonable person 11 to fear for his or her safety; and 12 (c) either-- 13 (i) the person intends to use or threaten unlawful violence; 14 or 15 (ii) the person is, or ought to be, aware that the use or threat 16 of unlawful violence would be likely to cause a 17 reasonable person to fear for his or her safety. 18 Maximum penalty: imprisonment for 10 years. Crimes (Serious Organised Crime) Amendment Bill 2010 page 3 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 5 1 Part 3 Criminal Code 2002 2 5 Legislation amended--pt 3 3 This part amends the Criminal Code 2002. 4 6 Complicity and common purpose 5 Section 45 (1) to (6) 6 substitute 7 (1) A person is taken to have committed an offence if the person aids, 8 abets, counsels, procures, or is knowingly concerned in or a party to, 9 the commission of the offence by someone else. 10 (2) However, the person commits the offence because of this section 11 only if-- 12 (a) either-- 13 (i) the person's conduct in fact aids, abets, counsels, or 14 procures the commission of the offence by the other 15 person; or 16 (ii) as a result of the person's conduct, the person in fact is 17 knowingly concerned in or a party to the commission of 18 the offence by the other person; and 19 (b) when carrying out the conduct, the person either-- 20 (i) intends the conduct to aid, abet, counsel, procure, or result 21 in the person being knowingly concerned in or a party to, 22 the commission of any offence (including its fault 23 elements) of the type committed by the other person; or page 4 Crimes (Serious Organised Crime) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 7 1 (ii) intends the conduct to aid, abet, counsel, procure, or result 2 in the person being knowingly concerned in or a party to, 3 the commission of an offence by the other person and is 4 reckless about the commission of the offence (including 5 its fault elements) in fact committed by the other person. 6 (3) To remove any doubt, the person is taken to have committed the 7 offence only if the other person commits the offence. 8 (4) Despite subsection (2), any special liability provisions that apply to 9 an offence apply also to the offence of aiding, abetting, counselling, 10 procuring, or being knowingly concerned in or a party to, the 11 commission of the offence. 12 (5) A person must not be found guilty of aiding, abetting, counselling, 13 procuring, or being knowingly concerned in or a party to, the 14 commission of an offence if, before the offence was committed, the 15 person-- 16 (a) ended the person's involvement; and 17 (b) took all reasonable steps to prevent the commission of the 18 offence. 19 (6) A person may be found guilty of aiding, abetting, counselling, 20 procuring, or being knowingly concerned in or a party to, the 21 commission of an offence even if the person who committed the 22 offence is not prosecuted or found guilty. 23 7 New section 45A 24 insert 25 45A Joint commission 26 (1) A person is taken to have committed an offence if-- 27 (a) the person and at least 1 other person enter into an agreement 28 to commit an offence; and Crimes (Serious Organised Crime) Amendment Bill 2010 page 5 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 7 1 (b) either-- 2 (i) an offence is committed in accordance with the 3 agreement; or 4 (ii) an offence is committed in the course of carrying out the 5 agreement. 6 (2) For subsection (1) (b) (i), an offence is committed in accordance 7 with an agreement if-- 8 (a) the conduct of 1 or more parties in accordance with the 9 agreement makes up the physical elements consisting of 10 conduct of an offence (the joint offence) of the same type as 11 the offence agreed to; and 12 (b) to the extent that a physical element of the joint offence 13 consists of a result of conduct--the result arises from the 14 conduct engaged in; and 15 (c) to the extent that a physical element of the joint offence 16 consists of a circumstance--the conduct engaged in, or a result 17 of the conduct engaged in, happens in the circumstance. 18 (3) For subsection (1) (b) (ii), an offence is committed in the course of 19 carrying out an agreement if a person is reckless about the 20 commission of an offence (the joint offence) that another person in 21 fact commits in the course of carrying out the agreement. 22 (4) A person commits an offence because of this section only if the 23 person and at least 1 other party to the agreement intend that an 24 offence will be committed under the agreement. 25 (5) An agreement-- 26 (a) may consist of a non-verbal understanding; and 27 (b) may be entered into before, or at the same time as, the conduct 28 making up any of the physical elements of the joint offence 29 was engaged in. page 6 Crimes (Serious Organised Crime) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 8 1 (6) A person must not be found guilty of an offence because of this 2 section if, before the conduct making up any of the physical 3 elements of the joint offence concerned was engaged in, the 4 person-- 5 (a) ended the person's involvement; and 6 (b) took all reasonable steps to prevent the conduct from being 7 engaged in. 8 (7) A person may be found guilty of an offence because of this section 9 even if-- 10 (a) another party to the agreement is not prosecuted or found 11 guilty; or 12 (b) the person was not present when any of the conduct making up 13 the physical elements of the joint offence was engaged in. 14 (8) Any special liability provisions that apply to the joint offence apply 15 also for the purposes of deciding whether a person commits the 16 offence because of the operation of this section. 17 (9) To remove any doubt, if a person is taken to have committed an 18 offence because of this section, the offence is punishable as if, apart 19 from the operation of this section, the person had committed the 20 offence. 21 8 Section 46 heading 22 substitute 23 46 Commission by proxy Crimes (Serious Organised Crime) Amendment Bill 2010 page 7 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 9 1 9 New chapter 6A 2 insert 3 Chapter 6A Participation in criminal groups 4 650 Meaning of criminal activity--ch 6A 5 In this chapter: 6 criminal activity means conduct that constitutes an indictable 7 offence. 8 651 Meaning of criminal group--ch 6A 9 (1) In this chapter: 10 criminal group means a group of 3 or more people who have either 11 or both of the following objectives: 12 (a) to obtain a material benefit from conduct engaged in in or 13 outside the ACT (including outside Australia) that, if it 14 occurred in the ACT, would constitute an indictable offence 15 under a territory law; 16 (b) to commit serious violence offences (whether in or outside the 17 ACT). 18 (2) A group of people can be a criminal group whether or not-- 19 (a) any of them are subordinates or employees of others; or 20 (b) only some of the people involved in the group are involved in 21 planning, organising or carrying out a particular activity; or 22 (c) its membership changes from time to time. page 8 Crimes (Serious Organised Crime) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 9 1 (3) In this section: 2 serious violence offence--an offence is a serious violence offence 3 if-- 4 (a) it is punishable by imprisonment for a term of 5 years or more; 5 and 6 (b) the conduct constituting the offence involves any of the 7 following: 8 (i) loss of a person's life or serious risk of loss of a person's 9 life; 10 (ii) serious injury to a person or serious risk of serious injury 11 to a person; 12 (iii) serious damage to property in circumstances endangering 13 the safety of any person. 14 652 Participating in a criminal group 15 A person commits an offence if the person-- 16 (a) participates in a criminal group; and 17 (b) knows that the group is a criminal group; and 18 (c) knows, or ought to have known, that the person's participation 19 in the criminal group contributes to criminal activity. 20 Maximum penalty: imprisonment for 5 years. 21 653 Participating in a criminal group--causing harm 22 (1) A person commits an offence if the person-- 23 (a) participates in, or intends to participate in, a criminal group; 24 and Crimes (Serious Organised Crime) Amendment Bill 2010 page 9 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 9 1 (b) in the course of participating in, or intending to participate in, 2 the criminal group, engages in conduct that causes harm to 3 someone else; and 4 (c) is reckless about causing harm to that person or another person 5 by the conduct. 6 Maximum penalty: imprisonment for 10 years. 7 Note The fault element of recklessness can be satisfied by proof of intention, 8 knowledge or recklessness (see Criminal Code, s 20 (4)). 9 (2) A person commits an offence if the person-- 10 (a) participates in, or intends to participate in, a criminal group; 11 and 12 (b) in the course of participating in, or intending to participate in, 13 the criminal group, intentionally makes to someone else a 14 threat to cause harm to the other person or a third person; and 15 (c) intends the other person to fear that the threat will be carried 16 out. 17 Maximum penalty: imprisonment for 10 years. 18 654 Participating in a criminal group--property damage 19 (1) A person commits an offence if the person-- 20 (a) participates in, or intends to participate in, a criminal group; 21 and 22 (b) in the course of participating in, or intending to participate in, 23 the criminal group, engages in conduct that causes damage to 24 property belonging to someone else; and 25 (c) is reckless about causing, damage to that property or any other 26 property belonging to the other person. 27 Maximum penalty: imprisonment for 10 years. page 10 Crimes (Serious Organised Crime) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 9 1 (2) A person commits an offence if the person-- 2 (a) participates in, or intends to participate in, a criminal group; 3 and 4 (b) in the course of participating in, or intending to participate in, 5 the criminal group, intentionally makes to someone else a 6 threat to damage property belonging to the other person or a 7 third person; and 8 (c) intends the other person to fear that the threat will be carried 9 out. 10 Maximum penalty: imprisonment for 10 years. 11 (3) In the prosecution of an offence against subsection (2), it is not 12 necessary to prove that the person threatened actually feared that the 13 threat would be carried. 14 (4) In this section: 15 causes damage or another result--see section 400 (Definitions-- 16 pt 4.1). 17 damage property--see section 400 (Definitions--pt 4.1). 18 property--see section 400 (Definitions--pt 4.1). 19 threat--see section 402 (Meaning of threat for pt 4.1). 20 (5) Section 401 (Person to whom property belongs) applies for the 21 purposes of this section. Crimes (Serious Organised Crime) Amendment Bill 2010 page 11 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 10 1 655 Recruiting people to engage in criminal activity 2 (1) A person commits an offence if the person recruits someone else to 3 carry out, or assist in carrying out, a criminal activity. 4 Maximum penalty: imprisonment for 7 years. 5 (2) A person commits an offence if the person recruits a child to carry 6 out, or assist in carrying out, a criminal activity. 7 Maximum penalty: imprisonment for 10 years. 8 (3) In this section: 9 recruit means counsel, procure, solicit, incite or induce. 10 10 New section 709A 11 insert 12 709A Threatening etc participant in criminal investigation 13 (1) A person commits an offence if the person causes or threatens to 14 cause a detriment to someone else with the intention that the other 15 person or a third person will-- 16 (a) not participate in a criminal investigation; or 17 (b) give false or misleading evidence in a criminal investigation; 18 or 19 (c) withhold true evidence in a criminal investigation; or 20 (d) give a false or misleading interpretation as an interpreter in a 21 criminal investigation; or 22 (e) improperly make a decision as a participant in a criminal 23 investigation; or 24 (f) improperly influence a participant in a criminal investigation. 25 Maximum penalty: 500 penalty units, imprisonment for 5 years or 26 both. page 12 Crimes (Serious Organised Crime) Amendment Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 11 1 (2) In this section, a person participates in a criminal investigation if 2 the person participates in the investigation as a witness, victim or 3 legal practitioner or is otherwise assisting police with their inquiries. 4 11 Dictionary, note 2 5 insert 6 · indictable offence (see s 190) 7 · summary offence (see s 190) 8 12 Dictionary, new definitions 9 insert 10 criminal activity, for chapter 6A (Participation in criminal 11 groups)--see section 650. 12 criminal group, for chapter 6A (Participation in criminal groups)-- 13 see section 651. Endnotes 1 Presentation speech Presentation speech made in the Legislative Assembly on 2010. 2 Notification Notified under the Legislation Act on 2010. 3 Republications of amended laws For the latest republication of amended laws, see www.legislation.act.gov.au. © Australian Capital Territory 2010 Crimes (Serious Organised Crime) Amendment Bill 2010 page 13 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au