Recent Changes in Commonwealth Criminal Law

David Adsett, Deputy DirectorBrisbane OfficeCommonwealth Director of Public Prosecutions

Aims and Objectives

Commonwealth Criminal law environment

offences, procedural matters and the interface between State and Commonwealth legislation

recent changes

Overview of Topics

Commonwealth agencies

federal jurisdiction

Criminal Code

New areas

Commonwealth Agencies

Regulatory roles

Civil enforcement regimes

Diversity of interests and core business

Collaboration and co-operation

Federal jurisdiction

‘permeating’ constitutional features

enumerated powers – ss 51 and 52

conferral of jurisdiction – s 71

Judiciary Act – s 68

Federal jurisdiction

State courts exercise federal jurisdiction

Federal offence →

Investigation Federal

Arrest Federal

Charge State*

Bail State*

Committal State

Trial State*

Evidence State / federal

Sentence Federal*

Sentence admin Federal

Federal jurisdiction

1980s ‘package’ of federal legislation:1. NCA (now ACC)2. Telephone interception3. Mutual Assistance in Criminal Matters4. Cash Transactions Reports (now FTRA)5. Proceeds of Crime Act

Federal jurisdiction

local to international sovereignty over criminal law

Extended geographical jurisdiction

Nature of offending

victims

Federal jurisdiction

expanded in response to new technology, social conditions, and threatsinternational aspectImpact on State and Territory stake-holders, as well as local legal practitionersInformation management National Security Information (Criminal and Civil Proceedings) Act 2004

Criminal Code

Gibbs Committee (1987)“Principles of Criminal Responsibility” (1990)Criminal Code Act 1995 Chapter 215 December 2001 – fully operationalHarmonisation

What does this mean for the practice of federal criminal law in the 21st century?

DefendantsWitnessesPractitionersJurorsCourtsJudicial Officers

Recent legislation

Online child exploitationCounter-terrorismAnti-money launderingHuman traffickingBail SentencingProceeds of Crime

Online child exploitation

Internet Federal nexus - s51(5)Criminal Code Part 10.6“Child pornography material” and “child abuse material”Grooming and procuring

Counter-terrorism

Constitutional bases: - Referral of powers - External Affairs power- Defence power

Part 5.3 Criminal CodeMatters in NSW and VictoriaLogistical issues

Anti-Money Laundering

to protect the integrity of Australian financial systemAnti-Money Laundering and Counter-Terrorism Financing Act 2006Staged introductionBearer Negotiable Instruments (BNI)

Human trafficking

People smuggling

Sexual servitude

Slavery

Bail and Sentencing

13 December 2006

potential impact of bail on victims and witnesses

‘customary law or cultural practice’ not to be taken into account

ALRC Report

Same Crime, Same TimeFederal Sentencing ActDatabaseSentence Indication Scheme federal parole authorityOffice for the Management of Federal Offenders.

Proceeds of Crime

POCA 2002

Civil forfeiture as well as conviction based

Examination and information gathering

Future Developments in Commonwealth Criminal Law

Trade Practices Amendment (Cartel Conduct and Other Measures) Bill criminal penalties for serious cartel conduct. International Trade Integrity Bill 2007response to Cole Inquiry Report.

Introduction

CDPP as an organisationCDPP as a legal practiceAims and Objectives of SeminarOverview of Topics

The Commonwealth Director of Public Prosecutions

Director of Public Prosecutions Act 1983Vision: a fair and just society, where laws are respected and obeyed and there is public confidence in the justice system.Mission: to operate a high quality Commonwealth prosecution service for the benefit of the Australian people. Prosecution Policy of the Commonwealth

The Commonwealth Director of Public Prosecutions (cont.)

8 offices nationally, including 3 offices in Queensland (Brisbane, Townsville and Cairns)541 staff employed nationallyIn 2006/7 referrals were received from 33 Commonwealth Government agenciesIn 2006/7 charges were laid under 68 pieces of Commonwealth legislation

Federal jurisdiction in State Courts

Commonwealth offences are prosecuted in State courts exercising federal jurisdiction pursuant to the Judiciary Act 1903Exceptions: Trade Practices and Copyright Combination of State and Federal law:

1. Offence against Commonwealth legislation2. Chapter 2 Criminal Code3. State/Territory Evidence, Procedure, Custody4. Part 1B Crimes Act 1914