CONFISCATION OF CRIMINAL ASSETS BILL 2002 Explanatory Statement

Clause 11 defines the concept of “unclaimed tainted property”, which covers tainted property that no-one has come forward to claim. The examples given in the Bill provide an indication of the circumstances in which property is unclaimed tainted property. This concept is related to Division 5.3 of the Bill, which provides for the restraint and automatic forfeiture of unclaimed untainted property.

Clause 12 explains the concept of property being “derived” from an offence. The concept is intended to operate broadly to cover any property derived or realised from an offence, whether in whole or in part and whether directly or indirectly. It includes property derived by one person at the express or implied direction of another person. A broad definition of "derived" is important to ensure that all material benefits from an offence are available for forfeiture action under the Bill. Money-laundering activities intended to conceal the criminal origins of assets can make it very difficult for law enforcement authorities to link assets of a suspected offender with an offence. Accordingly, the concept of "derived" necessarily includes the indirect derivation or realisation of property, which includes money and other assets.

Clause 13 explains which offences come within the ambit of the Bill. The concept of "offence" includes offences against the law of the Territory, the Commonwealth, a State or another Territory. As organised crime is increasingly cross-jurisdictional in scope, it can be difficult to ascertain exactly where the elements of an offence (particularly one involving financial transactions) have taken place, especially given the use of information technology by organised crime groups. It is therefore appropriate for the Territory to be able to take confiscation action against offenders in relation to offences under Territory, Commonwealth, and other Australian jurisdictions' laws.

It is also necessary for the Bill to cover interstate and Commonwealth offences to give effect to the provisions in part 11 of the Bill, which provide for the registration of interstate orders. Part 10 of the Bill contains provisions for Territory participation in an "equitable sharing program" under which the Territory and other jurisdictions agree to share the value of property forfeited to the Territory under the Bill.

Clause 13 also defines the concepts of "ordinary indictable offence" and "serious offence". Different options for forfeiture action and penalty orders are available depending on whether the relevant offence is an ordinary indictable offence or a serious offence. For example, civil forfeiture orders and civil penalty orders may only be made in relation to serious offences.

Clause 14 explains the concept of "effective control" of property. This concept is necessary to give full effect to the purposes of the Bill, by making it more difficult for offenders to conceal assets by placing them in the name of other persons. This clause will enable confiscation action to be taken in relation to property that an offender has attempted to protect or conceal by giving or transferring it to another person for less than full value within the preceding six years, or by using a trust or corporate structure. The ALRC Report recommended the adoption of this broader concept of "effective control" in Recommendation 55.

Clause 15 explains the concepts of "convicted" and "quashed", which have a specific meaning in the Bill. The broad definition of "convicted" will ensure that conviction based forfeiture action can be taken in relation to a person who is deemed to have been convicted of an offence because that person absconded before trial, as well as in relation to offences for which an offender has been found guilty but no conviction has been recorded. The definition of "quashed" is necessary to ensure that conviction based forfeiture action ceases if the person’s "conviction" is quashed or otherwise set aside. It should be noted that the quashing of a person's conviction for a serious offence will not necessarily mean that no forfeiture action can be taken against that person under the Bill. Civil confiscation action will be available if a court is satisfied on the balance of probabilities that the person committed a serious offence.

Clause 16 explains when someone is taken to "abscond". This term is linked to the concept of "convicted" in clause 15. As previously explained, the intention of this clause is to ensure that offenders do not frustrate the purposes of the Bill by fleeing the Territory after being committed for trial. Where a person flees the Territory before committal proceedings are finalised, clause 16(1)(c)(ii) ensures that the person is effectively deemed to have absconded if a court, during a confiscation proceeding, finds that the offence is of sufficient weight to support the offender's conviction for the offence. This test is substantially similar to the test that applies in committal proceedings in the ACT. The effect is that a person who would have been committed if he or she had remained in the ACT, can be taken to have "absconded".

Clause 17 explains when someone is cleared of an offence. This concept is important for determining when a restraining order made in relation to an ordinary indictable offence ceases to have effect.

Clause 18 explains when confiscation proceedings and criminal proceedings are finalised. The concepts are also relevant to determining when restraining orders and other confiscation actions under the Bill cease to have effect.

PART 4 RESTRAINT OF PROPERTY

This part deals with restraining property so that it remains available for confiscation action under the Bill. An effective restraining order system is essential if the purposes of the Bill are to be realised – the Territory will not be able to deprive a person of property in relation to an offence if that property is hidden or otherwise disposed of while applications for forfeiture orders or penalty orders are being determined. The provisions in this part are intended to be far more effective than Division 4.2 of the ACT POCA (which deals with restraining orders), in terms of ensuring that relevant property remains available for confiscation action.

To be effective, restraining orders need to:
• be capable of being made quickly and efficiently by the courts
• cover the whole range of assets likely to be required to satisfy a forfeiture or penalty order under the Bill
• be made without prior notice to the offender.

Clauses 19 to 21 contain definitions of key terms used in part 4, and are
self-explanatory.

Clause 22 sets out the purposes for which restraining orders can be made. Given that a restraining order prevents any unauthorised dealing with restrained property, which can have a very significant impact on a person’s lifestyle or income, it is important that restraining orders are made only to ensure that property is available for confiscation action under the Bill. It would not be appropriate for restraining orders to be made for purposes unrelated to the Bill.

Clauses 23 and 24 give restraining orders “teeth” by making it an offence (with a maximum penalty of up to 2 years imprisonment, a 200 penalty unit fine or both) to contravene a restraining order, and by giving the court the power to set aside unauthorised dealings with restrained property.

Clauses 25 to 29 detail the requirements and procedures for restraining order applications.

Clause 25 deals with applications concerning unclaimed tainted property. It will apply where law enforcement authorities wish to take confiscation action against unclaimed property (such as cash or jewellery) believed to be proceeds of crime.

Clause 26 applies to property where the owner is known. It provides that an application for a restraining order can cover stated property of a person, or all of a person’s property – it is not necessary for the DPP to specify every item of property to be restrained. This flexibility enables the court to restrain a person's property even before it has been identified, located or quantified, to maximise the prospects of ensuring that an offender's property is available for confiscation action under the Bill.

Clause 27 sets out the time limits for making applications. It should be noted that under clause 245, the Court has a discretion to extend the time limits in special circumstances.

Clauses 28 and 29 set out the matters to be included in the affidavit that must support an application for a restraining order. The affidavit for an application will form the main part of the evidence before the court when the court decides the application, therefore it is necessary for the affidavits to contain sufficient information about the relevant offence(s) and property to enable the court to make a properly informed decision.

Clause 30 sets out the criteria for making a restraining order over unclaimed tainted property, and clause 31 contains the criteria for making a restraining order over other property. In summary, the court must make a restraining order if it is satisfied that the criteria for making the order have been met - the court does not have a discretion as to whether or not to make an order. Importantly, clauses 30(4)and 31(5)(d) make it clear it is irrelevant whether there is any actual risk of the property being dealt with in a way that would defeat the purpose of the Bill.

Clause 32 makes it clear that, when considering whether it is satisfied under clause 31 that a person has committed a serious offence, the court does not need to be satisfied about any belief of the police officer who made the affidavit as to when the relevant offence was committed. The purpose of this provision is to ensure that confiscation can be taken in relation to criminal activity even if it is not possible to prove when exactly that activity occurred.

Clause 32 also makes it clear the order can be made even if no indictment has been presented against the offender, or the offender has not been convicted (or has been cleared) of the offence, or a doubt has been raised about the offender's guilt. The intention of clause 32 is to ensure that the new provisions for civil forfeiture orders and civil penalty orders are properly supported by the restraining order provisions, by allowing restraining orders to be made in these circumstances. Clearly, the value of the new civil forfeiture and civil penalty provisions would be considerably diminished if the property to which they relate is not preserved for confiscation action under the Bill.

Clause 86 explains how the amount of the penalty is to be calculated. First, the court must assess the value of any benefits derived by the offender from the commission of the offence and any related offence. Then, the court has a discretion to reduce that amount by an amount equal to:
• the value of property that has already been forfeited under the Bill or a corresponding law
• another penalty order, or other form of financial penalty, payable under a corresponding law
• any reparation order payable by the offender
• any amount payable by the offender for restitution, compensation or damages
• any amount of tax payable in relation to benefits.
The net amount is the amount that is payable under the penalty order by the offender.

Clause 87 requires a penalty order to state the amount of the penalty and by whom it is to be paid. This information is required because the order acts as a formal debt owed by the offender to the Territory (see clause 88) and it is desirable that the details of that debt should be certain, for enforcement purposes.

Clause 88 explains that penalty orders are judgment debts owing to the Territory. This means that if the value of any restrained property is not sufficient to satisfy a penalty order, the remainder of the penalty (or the whole penalty, if there is no restraining order in place) can be recovered as a debt in a court of competent jurisdiction.

Clause 89 enables the amount of the penalty order to be varied to reflect the assessed value of any relevant benefits at the time the variation to the penalty order is made. The purpose of this clause is to ensure that if the value of benefits actually derived by an offender increases significantly after a penalty order is made, the penalty order can be adjusted to take account of this increase in value.

Division 7.3 explains how the value of benefits is to be calculated. Among other matters, the provisions in this division ensure that the court can take account of expert evidence when determining the value of benefits for the purpose of making a penalty order under part 7.

Clause 90 contains definitions of "narcotic substance" and "property".

Under clause 91, where the value of benefits needs to be determined in relation to an ordinary indictable offence, the value of the benefits is taken to include any increase in the value of the offender's property since immediately before the offence was committed. It also includes the value of any narcotic substance involved in the offence.

Under clause 92, the value of benefits derived from a serious offence is taken to include:
• the value of all the offender's property when the application is made
• the value of any property held by the offender either six years immediately before the application for the penalty order is made, or between the time of the alleged commission of the offence and the making of the application, whichever is shorter
• the value of any narcotic substance involved in the offence
• the value of any expenditure by the person during the relevant period, apart from expenditure involved in acquiring property that has already been taken into account in calculating the value of benefits derived by the offender.

The value of benefits assessed by the court will not include any property that the offender satisfies the court was lawfully acquired and is not tainted property. The value of benefits will also not include the value of expenditure derived from lawfully acquired property or benefits, or from property that is not tainted property.

Clause 93 sets out other relevant matters that the court must consider when assessing the value of benefits derived by an offender. The court must assess the value of the benefits by reference to the highest value of the benefits since the commission of the offence. The court may value the benefits differently, having regard to the purposes of the Bill. The intention of this clause is to ensure that offenders do not inadvertently retain some of the benefits from the commission of an offence due to a fluctuation in the value of those benefits.

Clause 93 also explains that in determining the value of any narcotic substance, the court can rely on expert evidence from police officers experienced in narcotics investigations. If the offender shows that all or part of the increase in value of his or her property relates to property or benefits lawfully acquired by that offender, the court's calculation of assessed value does not include that amount.

Division 7.4 of the Bill explains the way in which penalty orders can be satisfied.

Clause 94 provides that when a penalty order is made, any restrained property of the offender becomes subject to a penalty charge. This charge secures the payment to the Territory of the amount of the penalty order.

Clause 95 explains that a penalty charge over particular property ends when:
• the associated penalty order ends;
• the associated restraining order ends;
• the restrained property is sold or otherwise disposed of.

Clause 96 explains that a penalty order empowers the public trustee to satisfy a penalty order out of any restrained property or by enforcing the penalty order as a judgment debt. This means that the public trustee does not need to obtain additional court orders to give effect to the penalty order. The public trustee can dispose of restrained property in any way that he or she considers appropriate.

Clause 97 requires the public trustee to repay any surplus funds from the sale or disposal of property to the relevant offender.

Division 7.5 of the Bill consists of clause 98, which explains how penalty orders end. In summary, a penalty order ends when it is fully satisfied, it is set aside or discharged on appeal, or the offender is cleared of all relevant offences.

PART 8 RESTRAINED PROPERTY

This part contains provisions dealing with the management of restrained property by the public trustee. The purpose of these provisions is to ensure that the public trustee has sufficient powers to manage property pending the resolution of any confiscation proceedings under the Bill.

Clause 99 explains that Division 8.1 applies where the public trustee is directed to take control of restrained property by an order made under the Bill. This division enables the public trustee to do anything reasonably necessary to preserve restrained property.

The examples set out in clause 100 provide guidance as to the sorts of actions that the public trustee may take under this division. Clause 100 also makes it an offence for a person not to disclose a tax file number when required to do so by the public trustee.

Clause 101 makes it clear that the public trustee is empowered to sell restrained property if it is deteriorating or substantially losing value, or if the cost of maintaining the property would exceed the value of the property when forfeited. The public trustee may destroy or modify restrained property if necessary to protect the public interest, for example, if the restrained property could not be used legally or represents a threat to public health or safety.

In exercising these powers, clause 102 requires the public trustee to give written notice of the proposed sale, modification or destruction to the owner of the property and anyone else who has an interest in it. The purpose of this clause is to enable such persons to seek an order under clause 104 preventing the proposed sale, destruction or modification.

In some cases, it will be necessary for the public trustee to modify or destroy restrained property immediately, where property is a serious threat to public health or safety. In these circumstances, clause 103 ensures that the public trustee may act immediately without giving prior notice of the proposed destruction or modification to persons with an interest in the property.

Division 8.2 explains what happens when property that is restrained under the Bill is jointly owned and one of the joint owners dies. In the normal course of events, the death of a joint owner would vest the deceased joint owner's interest in the surviving joint owner. The effect of clause 105 is that the death of a joint owner does not vest that person's interest in the surviving joint owner. Where the interest was held by the dead person as a tenant in common, that person's interest cannot be transferred to anyone else by that person's estate. The restraining order continues to apply to the property as though the person had not died. The purpose of this clause is to ensure that the death of an offender, who has placed tainted property in joint names, does not place that tainted property beyond the reach of confiscation action under the Bill.

PART 9 FORFEITED PROPERTY

This part explains what happens when property is forfeited to the Territory under the Bill.

Clause 106 explains the concept of "interested person", which covers the persons who may take certain steps under Part 9.

Under clause 107, the public trustee is empowered to take any steps that are reasonable or desirable to vest forfeited property in the Territory and to bring the property under the public trustee's control.

Clause 108 explains that forfeited property vests absolutely in the Territory. This means that the Territory becomes the full legal and beneficial owner of the property. Clause 108 is subject to clause 109, which clarifies the status of forfeited registrable property before registration processes are complete. In this situation, the property vests in equity in the Territory until registration is complete, whereupon it vests in law in the Territory.

Clause 110 deals with the disposal of forfeited property. The public trustee must pay property, that is money, into the confiscated asset trust fund (established under Part 10). The public trustee is empowered to sell or otherwise dispose of other types of property (with the proceeds being paid into the trust fund). If the forfeited property has evidentiary value, any such disposal or sale can occur only:
• under a direction by the DPP
• for the purpose of vesting the property at law in the Territory or allowing the public trustee to take control of the property.
This restriction ensures that property with evidentiary value is preserved so that it can be used in criminal proceedings where necessary.

Division 9.3 of the Bill deals with the way in which improperly obtained registered property interests are to be dealt with when the relevant property is forfeited to the Territory. These provisions are necessary because the rules relating to the registration of property interests provide certain protections for such interests which could otherwise prevent the effective forfeiture of registered property that is tainted property.

Clause 111 explains when division 9.3 applies to forfeited property. In brief, it applies where property is jointly owned and has vested in a trustee for sale, or where the property that has vested in the Territory was subject to a registrable interest (for example, a mortgage) when forfeiture occurred.

Clause 112 allows the court to order the discharge of improperly obtained registered property interests. The effect of discharge is to extinguish the interest. The court must order the discharge of a registered property interest unless it is satisfied that:
• it was acquired honestly and for consideration and the person acquiring the interest took reasonable care to ensure that it could be lawfully acquired
• if the interest was not acquired in the ordinary course of business (i.e. if it was a dealing between family members or friends), the person who acquired the interest was not involved in the relevant criminal activity, and the offender has not retained effective control of the interest in the property.

The interests of banks and other financial institutions will be protected providing that they have not "turned a blind eye" to their clients' criminal activities when lending against property that becomes forfeited. Similarly, the interests of an offender's family members will be protected providing they are not complicit in the offender's activities and the relevant property interest is genuinely not under the offender's control.

Division 9.4 sets out the processes for selling jointly owned property that has been forfeited. These processes will apply where the interest in property that has been forfeited to the Territory does not represent the whole of the property. An example would be where an offender owned a quarter share of a racehorse and that share is forfeited to the Territory.

Clause 113 explains the application of division 9.4. It makes it clear that division 9.4 does not affect a person's right to sell an interest in property where that interest has not been forfeited to the Territory and an order for the sale of jointly owned property has not been made. Clause 114 explains the interaction between the provisions of the Bill and the provisions of the Trustee Act 1925 and the Conveyancing Act 1919. It provides that Division 9.4, and any court order made under it, prevail over those Acts to the extent of any inconsistency.

Clause 115 enables the court to order a sale under a trust for sale in relation to any jointly owned property forfeited under the Bill. An order can be made if the court considers that the sale of the property is the most practical way for the public trustee to obtain a reasonable price for the forfeited property, or the sale is just and equitable in all the circumstances. The court may permit a joint owner of the property to buy the property, but without such a direction the purchase will not be permitted.

The court is required to appoint trustees for the sale under clause 116 . The role of the trustees is to hold the property under a trust pending its sale, and to pay the balance of the proceeds of the sale (less any expenses and costs relating to the sale) to the court.

Under clause 117, the joint ownership of the property ends when the property vests in the trustee for sale under the court order for the sale of the property. This means that the legal interest of the joint owners in the property is terminated by the creation of the trust for sale.

Clause 118 explains how the proceeds of the sale are to be distributed by the court. The general principle is that the net proceeds of the sale are payable to the Territory, but the court can order payment of part or all of the sale proceeds to any innocent former joint owners of the property. Such an order may only be made if:
• the innocent joint owner was not a party to the offence
• that person's interest was not under the effective control of the offender
• for property that was acquired from the offender, the property was acquired honestly and for sufficient consideration, and the innocent joint owner took reasonable care to establish that the property could be lawfully acquired.

Clause 119 allows the court to vary an order for sale. This power includes a power to vary any associated court directions about the property, its sale or the proceeds of the sale.

Division 9.5 contains provisions dealing with the return of forfeited property and the payment of compensation for forfeited property, where forfeiture action or forfeiture orders are set aside (for example, because the person is cleared of an offence).

Clause 120 defines the term "return or compensation order".

Clause 121 allows a person who held an interest in forfeited property to apply for a return or compensation order, in certain circumstances:
• where a person is cleared of the offence on which the forfeiture was based
• where a forfeiture order is overturned an appeal.

If either of these circumstances apply, the court can make a return or compensation order under clause 122. Depending on whether the forfeited interest has already been sold or disposed of, the court can either order the return of the forfeited property or the payment of its value.

Division 9.6 contains provisions allowing a person to buy back a forfeited interest. In order to ensure that offenders are not permitted to regain property used to commit crimes, buyback orders must be made by a court.

Clause 123 defines the term "buyback order".

Clause 124 allows a person who held an interest in forfeited property to apply for a buyback order. An application must be made within 14 days of the forfeiture of the property, or the date the person became aware the property was forfeited.

Under clause 125, the court can make a buyback order if the property is still vested in the Territory and the buyback order would not be contrary to the public interest. Where the buyback order would apply to a different interest in the property to that previously held by the applicant, the buyback order can be made only if the person who previously held that interest does not object.

Clause 126 requires the Territory to transfer the interest to the applicant under the buyback order within one month of the applicant paying the relevant sum to the Territory.

PART 10 CONFISCATED ASSETS TRUST FUND

This part of the Bill contains provisions dealing with the establishment and operation of the confiscated assets trust fund. It also provides for the Territory to participate with other jurisdictions in the equitable sharing program. Its provisions are substantially based on Part 3 of the ACT POCA.

Clauses 127 and 128 explain key terms used in part 10, including the concept of "equitable sharing program". This program is a mechanism whereby those jurisdictions that cooperate in confiscation proceedings can share the value of any recovered property and assets.

Clause 129 provides for the establishment of the confiscated assets trust fund.

Clause 130 explains which amounts must be paid into the trust fund. None of the property confiscated under the Bill is paid into consolidated revenue, it is all paid into the trust fund. The amounts paid into the trust fund include:
• income from the administration of restrained property
• any forfeited property that is money
• income earned from forfeited property
• money from the sale of forfeited property
• payments for forfeited property that has been bought back under a buyback order
• proceeds from the enforcement of interstate orders
• proceeds from the sale of items forfeited under section 250 of the Crimes Act 1900
• payments received under the equitable sharing program.

Clauses 131 to 132 explain the purposes of the trust fund, and set out how payments may be made from the fund. Among other matters, reserved funds can be used to cover the costs of the public trustee in relation to its functions under the Bill. The distributable funds can be used for a variety of purposes, as set out in clause 131, including:
• law enforcement
• criminal justice activities
• crime prevention
• assistance to victims of crime
• prevention of drug abuse
• rehabilitation of drug users.

These purposes ensure that the proceeds of crime recovered under the Bill can be used productively to address the impact of crime on the community, to prevent future crime and to assist in the rehabilitation of persons who may be involved in committing crime because of drug abuse problems.

Clause 134 requires the public trustee to review the trust fund at least once every six months. The purpose of the six-monthly review is to determine whether there are enough reserved funds to cover all the payments that must be made within the next six months. If the reserved funds are not enough, the public trustee can make a written declaration to convert distributable funds into reserved funds. If the reserved funds exceed expected requirements, the public trustee can declare the surplus to be distributable funds.

PART 11 INTERSTATE ORDERS

This part explains how confiscation orders from other jurisdictions can be enforced in the Territory. The concept of "corresponding law order" is explained in the dictionary at the back of the Bill. It encompasses a range of orders, notices, declarations and other forms of authorisation made under an enactment of another jurisdiction declared to be a corresponding law by the regulations.

Clause 135 explains when a corresponding law order is taken to "authenticated". Authentication is necessary if a corresponding law order is to be registered in the ACT.

Clause 136 provides for the registration in ACT courts of interstate restraining orders, interstate forfeiture orders and interstate automatic forfeiture decisions.

Clause 137 provides for interim registration of corresponding law orders when an originating jurisdiction provides the ACT an electronic copy of an order. This clause is included to facilitate prompt registration where any ACT-based assets covered by a corresponding law order need to be restrained immediately. Interim registration lasts for five days only. Within this period, the originating jurisdiction must send the relevant Territory court an authenticated copy of the order to be registered under clause 136.

Clause 138 explains the effect of registration. Once registered in the ACT, corresponding law orders have effect as though they were orders made under the Bill.

Clause 139 explains when corresponding law orders cease to be registered under the Bill.

Clause 140 explains when the registration of a corresponding law order can be cancelled.

Clause 141 deals with the creation of interstate penalty charges. When an ACT court registers an interstate restraining order, a related interstate penalty order is made and that order is registered in the ACT under the Service and Execution of Process Act 1992 of the Commonwealth, an interstate penalty charge arises in relation to the restrained property.

Clause 142 makes it clear that an interstate penalty charge is taken to be a penalty charge made under the Bill. This means that the provisions in the Bill for registering a penalty charge and for securing payment apply to the registration and enforcement of interstate penalty charges.

PART 12 INFORMATION GATHERING

The provisions in this part deal with the way in which law enforcement agencies can collect information about tainted property and other criminal assets. They will assist those agencies to track and locate such property through the various transactions and other activities used by offenders to conceal its origins. These information gathering powers are essential for giving effect to the purposes of the Bill, as confiscation action cannot be taken unless the proceeds of crime can be located and linked to criminal activity and particular offenders.

Division 12.1 deals with inquiry notices. The purpose of this division is to enable law enforcement authorities to obtain relevant information from financial institutions about accounts and transactions which may be connected to criminal activity. The clauses in this division give effect to recommendation 76 of the ALRC report.

Clause 143 defines the term "inquiry notice".

Under clause 144, a police officer of the rank of commander or higher may give an inquiry notice to a financial institution. A notice requests the institution to provide information about specified accounts or transactions. An inquiry notice can be given only if the police officer is satisfied that the information is needed to decide whether to apply for an order under the Bill or to begin proceedings for an offence.

Clause 145 explains the information to be contained in an inquiry notice. The notice must:
• explain that it is an inquiry notice under the Bill
• specify which financial institution is required to provide information
• specify the information to be provided
• indicate how the information is to be given
• alert the financial institution to the consequences of non-compliance.

Clause 146 provides the financial institution with immunity from civil proceedings in relation to loss, damage or injury of any kind arising from the giving of information in good faith to a police officer in accordance with an inquiry notice.

Division 12.2 deals with monitoring orders. The clauses in this division have a similar effect to those in Division 5.3 of the ACT POCA.

Clause 147 explains that a monitoring order requires a financial institution to give a police officer stated information about transactions that have been conducted or that will be conducted by that institution in relation to a person.

Under clause 148, a police officer can apply to a court for a monitoring order if the officer has reasonable grounds for suspecting that the person to whom the application relates is involved in the commission of a serious offence, or has or will derive property or a benefit from the commission of a serious offence.

Clause 149 details the requirements for an affidavit to support an application for a monitoring order.

Clause 150 details the grounds on which the court may make a monitoring order. It also sets out the matters which must be included in the order. The order must state:
• that it is a monitoring order
• the financial institution to which it applies
• the person covered by the order
• the types of transaction covered by the order
• the kind of information the financial institution must provide
• how the information is to be given
• the duration of the order
• the effect of non-compliance with the order.

Division 12.3 deals with transaction suspension orders. While not expressly stated in the Bill, the objective of this division is to give law enforcement authorities an opportunity to consider whether to seek a restraining order, or to take other action, before the transaction is processed. The provisions in this division give effect to recommendation 29 of the ALRC report.

Clause 151 explains that transaction suspension orders are orders requiring a financial institution to keep law enforcement authorities informed about transactions conducted through stated accounts, and to delay the processing of transactions for 48 hours after becoming aware of the transaction.

Under clause 152, a police officer can apply to a court for a transaction suspension order where the police officer has reasonable grounds to suspect that a person is, or will be, involved in a money-laundering offence. The police officer must also have reasonable grounds to believe that the relevant account is under the effective control of that person. Clause 153 requires the police officer to provide an affidavit to support the application.

Clause 154 explains the process whereby a court may make a transaction suspension order, and details the matters to be included in the order. In brief, a transaction suspension order must state:
• that it is a transaction suspension order
• what its effect is and to which financial institution it applies
• which accounts it applies to
• how notice of transactions is to be given to the police
• its duration
• the effect of non-compliance.

Division 12.4 deals with production orders for property tracking documents. These provisions are similar in effect to Division 5.1 of the ACT POCA.

Clause 155 defines "production order" and clause 156 defines "property-tracking document".

Under clause 157, a police officer can apply to a court for a production order, where the police officer has reasonable grounds to suspect that someone has committed an indictable offence and the person covered by the order possesses property-tracking documents relating to that offence. Clause 158 requires the application to be supported by an affidavit.

Under clause 159, the court may make a production order if it is satisfied that there are reasonable grounds for the police officer's suspicions. The court may also declare that the order is a non-disclosable production order. This option will ensure that the person required to produce the property-tracking documents can be prevented from disclosing that he or she has been required to provide the documents to law enforcement authorities, where the disclosure might alert the offender that an investigation is underway or that confiscation action under the Bill is imminent.

Clause 160 enables the court to declare that an order is a non-disclosable production order.

Clause 161 confers a power on the court to vary the terms of a production order.

Clause 162 explains that, where a document is given to a police officer under a production order, that officer is entitled to take possession of it, to make copies of it or to take extracts from it, and to keep it while it is required for the purposes of the Bill.

Division 12.5 deals with examination orders and notices. An examination order permits an unauthorised investigator to issue a notice to require a person to give a document or other information to the investigator in relation to an investigation. It should be noted that Clause 257 details the special reporting arrangements that apply to the use of the examination notice powers.

Clause 163 contains definitions of key terms used in division 12.5. These terms are "associate", "authorised investigator" and "investigation".

Clause 164 provides that the chief police officer can authorise a police officer of the rank of superintendent or higher to be an authorised investigator for a particular investigation. In order to ensure that persons who are appointed as authorised officers use their special powers appropriately, the chief police officer can only appoint persons who have the necessary qualifications, expertise and experience for the relevant investigation. An authorised investigator must exercise his or her functions in consultation with, and in accordance with any direction given by, the DPP. This provision ensures investigations are carried out with the full concurrence of the DPP, who will initiate any resultant confiscation proceedings and conduct any resultant criminal trials.

Clause 165 explains that an "examination order" authorises an authorised investigator to issue examination notices for an investigation.

Clause 166 provides that an unauthorised investigator can apply for an examination order if the investigator has reasonable grounds to suspect that the people to whom an examination notice would be given, if an examination order were made, could give the investigator information or documents relevant to the investigation for which the authorised investigator has been appointed.

Clause 167 details the requirements for affidavits to support applications for examination orders.

Clause 168 deals with making examination orders. Our court can make an examination order if it is satisfied that the authorised investigator has been properly appointed and that there are reasonable grounds for the investigator's suspicions as outlined in the affidavit required by clause 167. An examination order must state, among other matters, the persons to whom examination notices may be issued under the order, whether the order applies to documents and if so, the kind of documents to which it applies.

Clause 169 provides that the court may order that an examination order is to be a
non-disclosable order.

Clause 170 defines the term "examination notice".

Under clause 171, an authorised investigator can give a person an investigation notice pursuant to an examination order. If the order under which the examination notices issued is non-disclosable, any examination notices issued under that order will also be non-disclosable.

Clause 172 sets out the matters that must be contained in an examination notice. The notice must state:
• that it is an examination notice
• to whom it applies
• the investigation to which relates
• the information or documents it covers
• where and when the information or documents must be given to the authorised investigator
• how the information or documents must be given to the authorised investigator
• whether the examination notice is non-disclosable
• the effect of non-compliance with the notice.

Clause 173 covers the time and place of an examination.

Clause 174 explains that an authorised investigator can examine a person on oath or affirmation, and persons are required to answer questions put to them. Examinations are quasi-judicial in nature.

Clause 175 explains how examinations are to be conducted. Examinations are to be held in private and the authorised investigator can give directions about people who may attend. A person who is being examined is entitled to be represented by a lawyer. Proceedings may be recorded, and evidence can be given by audio or audiovisual link, under the Evidence (Miscellaneous Provisions) Act 1991.

Clause 176 explains the role of the examined person's lawyer. The lawyer may address the authorised investigator and can examine the person in relation to any matters that the authorised investigator has already examined the person. If a legal representative is considered by the authorised investigator to be obstructing an examination, the investigator can stop the lawyer from addressing the investigator or from examining the person.

Clause 177 explains that an authorised investigator who is given documents under an examination notice may take possession of the documents, or make copies or take extracts from those documents. The authorised investigator may also retain the documents for as long as needed.

Clause 178 enables an unauthorised investigator to make directions to prohibit or restrict the publication or disclosure of information about examination notices or examinations.

Clause 179 makes it clear that an authorised investigator conducting an examination has the same protections and immunities as a judge. Again, this provision emphasises the quasi-judicial nature of the examination notice mechanism.

Clause 180 to 184 contain offences relating to the conduct of examinations.

Clause 180 makes it an offence to hinder or obstruct an authorised investigator in an examination.

Clause 181 makes it an offence to fail to attend an examination.

Clause 182 makes it an offence for a person who attends an examination to fail to be sworn or make an affirmation, fail to answer a question, fail to produce a document or leave before being excused.

Clause 183 makes it an offence for a person to be present at an examination if he or she is not entitled to be present.

Clause 184 contained offences relating to the disclosure of non-disclosable information about examinations.

Division 12.6 contains additional offences relating to "information orders" under part 12 of the Bill.

Clause 185 explains that the concept of "information order" encompasses inquiry notices, monitoring orders, transaction suspension orders, production orders, examination orders and examination notices.

Clause 186 provides that is an offence to fail to comply with an information order.

Clause 187 makes it an offence to give false or misleading information under an information order, while clause 188 makes it an offence to give false or misleading documents under an information order.

Clause 189 makes it an offence to destroy, damage, change or otherwise interfere with a property-tracking document that is subject to a production order or an examination notice.

Clause 190 explains the term "non-disclosable information order", which is relevant to the offence in clause 191.
Clause 191 contains offences relating to the disclosure of a non-disclosable information order.

Clause 192 explains that while a police officer may disclose the existence or operation of a non-disclosable information order in the context of legal proceedings, any police officer is not obliged to make such disclosures.

Clause 193 provides protection to financial institutions who comply with information orders by providing information that relates to money laundering offences. It ensures that financial institutions are taken not to have been in possession of the information given under the notice.

The purpose of this provision is to ensure that financial institutions are not taken to have been parties to the commission of relevant money-laundering offences.

PART 13 SEARCH WARRANTS

The provisions in this part cover police officers' powers to obtain and execute search warrants under the Bill.

A key concept in part 13 is "target material", which is defined in clause 194. "Target material" means any property that can be subject to action under the Bill, benefits derived from the commission of an indictable offence, any evidence relating to such property or benefits and evidence relating to an indictable offence.

Division 13.2 contains general provisions relating to the application and issuing of search warrants.

Clause 195 deals with applications for search warrants. Applications may be made to "issuing officers", which include judges, a registrar or deputy registrar of the Supreme Court, a magistrate or a registrar or deputy registrar of the Magistrates Court (if authorised by the Chief Magistrate to do so).

Clause 196 makes it an offence to include a false or misleading statement in an application for a search warrant.

Clause 197 imposes additional requirements for search warrant applications where the police officer suspects it may be necessary to use firearms when executing the warrant.

Clause 198 explains that the search warrant can be issued if there are reasonable grounds to suspect that there is target material at the premises, or that there will be such material at those premises within the next 72 hours.

Clause 199 explains the relationship between the power to obtain and execute search warrants under part 13 and the power to obtain a property-tracking document under part 12. A search warrant can only be issued in relation to a property-tracking document if:
• it would not be possible to identify or describe the documents sufficiently clearly to obtain a production order
• a production order has already been made but has not been complied with
• there are reasonable grounds to suspect that there would be non-compliance with a production order
• the relevant investigation would be seriously prejudiced if a police officer had to obtain a production order rather than a search warrant.

Clause 200 lists the matters that must be stated in a search warrant. These details are required to ensure that a person to whom a search warrant is given when it is executed can be properly informed about the terms of the warrant.

Clause 201 deals with the authorisation given by a search warrant. The purpose of these provisions is to ensure that police officers and persons affected by a search warrant can be certain as to the matters and actions that are, and are not, covered by the warrant. The certainty is important for determining whether target material recovered under the search warrant is properly admissible in a subsequent proceeding.

Division 13.3 deals with obtaining warrants by telephone or other electronic means. The purpose of these provisions is to ensure that police officers are able to obtain search warrants in an emergency (for example, where there is a risk that the delay associated in obtaining a search warrant by ordinary means may impair their ability to obtain the target material).

Clause 202 sets out the process for applying for a search warrant by telephone or other electronic means. In summary, the officer applying for the warrant will contact the issuing officer and, by telephone or that other electronic means, provide all the information that would usually be required for ordinary warrants.

Under clause 203, the person that issues a telephone or electronic warrant is to complete and sign the ordinary form used for a search warrant. He or she must then inform the applicant of the terms of the warrant and when it was signed. The applicant for the warrant must then make a record of the terms of the warrant, the name of the issuing officer and when the warrant was made. Once the warrant has been executed, or if it expires before it is executed, the applicant for the warrant must give the issuing officer the form of search warrant completed by the applicant (with any sworn information) and the issuing officer must attach the warrant signed by him or her to that form of warrant. This process ensures that the records of the applicant and the issuing officer can be held together, should it be necessary to locate them at a later date. It also enables the issuing officer to check that the terms of the warrant as recorded by the applicant match the terms of the warrant authorised by the issuing officer.

Clause 204 creates an assumption, to apply in court proceedings, that if a form of search warrant signed by the issuing officer is not produced in evidence, the court must assume that the powers under the search warrant were not properly authorised unless the contrary is proved. The purpose of this provision is to make it clear to police officers and issuing officers that they run the risk of jeopardising an investigation, and any subsequent proceedings, if they fail to comply with the requirements for making and recording search warrants.

Clauses 205 to 208 contain offences relating to incorrectly stating, including or recording matters covered by telephone or electronic warrant. The purpose of these provisions is to ensure that applicants for a telephone or electronic warrant take particular care to ensure that such warrants accurately reflect the terms of the warrant as issued and accurately identify when and by whom it was issued.

Division 13.4 deals with executing search warrants. Its provisions are similar to the search warrant provisions contained in the Crimes Act 1900 and deal with matters such as:
• when warrants can be executed (clause 209)
• restrictions on personal searches (clause 210)
• when force and assistance can be used (clause 211)
• requirements for announcement before entry (clause 212)
• requirements to give the occupier details of the warrant (clause 213)
• occupiers' rights to be present (clause 214)
• powers available to executing officers (clause 215)
• use of equipment, including electronic equipment (clause 216)
• powers to move things elsewhere for examination or processing (clause 217)
• powers in relation to electronic equipment at premises (clause 218)
• assistance by persons with knowledge of computer or computer systems, including an offence for failing to assist when directed to do so (clause 219)
• securing electronic equipment that may provide access to target material (clause 220)
• requirements to provide copies of seized things (clause 221)
• requirements to provide documents after the execution of search warrants (clause 222).

Division 13.5 explains the powers that are available to police for stopping and searching vehicles.

Clause 223 provides the police with the power to stop and search a vehicle without a warrant in emergency situations. This power can be used only where a police officer suspects on reasonable grounds that there is target material in a vehicle and the search is urgently necessary to prevent that target material from being concealed, lost or destroyed.

Clause 224 explains how searches under clause 23 are to be carried out. Importantly, the police cannot detain the vehicle for longer than necessary and reasonable to conduct the search and can only use reasonable force in conducting the search.

Division 13.6 explains what is to happen to items that are seized under search warrants.

Clause 225 requires the police to give a receipt for seized items to the person from whom those items were seized.

Clause 226 requires a police officer to take reasonable steps to return seized items to their owners when they are no longer needed for use in evidence.

Clause 227 allows the police to retain items beyond the period authorised by clause 226, by applying to an issuing officer for an order to allow the further retention of the item. The issuing officer can make an order under clause 228 to allow the item to be retained for longer.

Clause 229 requires a police officer to transfer seized items to the public trustee, if so directed by the public trustee.

Division 13.7 contains miscellaneous provisions relating to search warrants, including offences associated with search warrants.

Clause 230 makes it an offence to give false or misleading information in purported compliance with a requirement under part 13.

Clause 231 makes it an offence to provide false or misleading documents in purported compliance with a requirement under part 13.

Clause 232 makes it an offence to hinder or obstruct police officers (and any persons assisting them) while they are exercising their functions under part 13.

Clause 233 requires police officers (and any persons assisting them) to take care to ensure that they cause as little inconvenience, detriment and damage as possible, when exercising their functions under part 13.

Clause 234 enables a person who suffers loss or expense because of the exercise of functions under part 13 to seek reasonable compensation from the Territory for that loss or expense.

PART 14 COURT PROCEDURE

This part contains provisions dealing with court procedures that apply in confiscation proceedings under the Bill.

Clause 235 explains the term "confiscation proceeding". In essence, a confiscation proceeding is a court proceeding for certain orders that may be made under the Bill. These include restraining orders, conviction forfeiture orders, civil forfeiture orders, exclusion orders, penalty orders, monitoring orders, transaction suspension orders, production orders, return compensation orders, orders for the sale of jointly owned property, buyback orders and ancillary/additional orders. Proceedings relating to corresponding law orders (that is, interstate orders) are not regarded as confiscation proceedings for clause 235 .

Clause 236 explains that confiscation proceedings and proceedings for corresponding law orders are not criminal proceedings. This provision means that the rules of court and the rules of evidence that apply to civil proceedings will apply to these proceedings.

Clause 237 explains the meaning of "relevant court". The relevant court is the court that has jurisdiction to hear and determine a confiscation proceeding. One of the changes made by the Bill is to confer jurisdiction on the Magistrates Court for some confiscation proceedings – under the ACT POCA, only the Supreme Court had jurisdiction to deal with proceeds of crime matters.

Clause 238 explains when the Magistrates Court will have jurisdiction in confiscation proceedings. In brief, the Magistrates Court has jurisdiction if the value of the property and benefits covered by the proceeding does not exceed the jurisdictional limit of that court in personal actions at law, and if title to land is not in issue. In some cases, the Magistrates Court will have jurisdiction to deal with a matter even if the jurisdictional limit is exceeded. For example, the court can dismiss the proceeding on its merits, make an order in relation to property or benefits up to the amount of the jurisdictional limit or order the transfer of the proceedings to the Supreme Court. The Magistrates Court also has unlimited jurisdiction to deal with applications for monitoring orders, transaction suspension orders or production orders, for applications relating to indictable offences that have been dealt with summarily by the court and in relation to proceedings transferred to the Magistrates Court by the Supreme Court.

Under clause 239, the Magistrates Court also has jurisdiction for orders made under part 11 in relation to corresponding law orders.

Under clause 240, the Supreme Court has jurisdiction to hear and decide any confiscation proceeding or corresponding law order proceeding. The Supreme Court can transfer proceedings to the Magistrates Court if the proceeding does not exceed the Magistrates Court jurisdictional limit and title to land is not genuinely in issue.

Clause 241 explains that if a proceeding has been transferred from one court to another, the proceeding is deemed to have commenced in the court to which the matter has been transferred.

Clause 242 explains that restricted access proceedings can be commenced without notice. Restricted access proceedings include proceedings for a restraining order (and associated orders), a monitoring order, a transaction suspension order or a production order. The purpose of this clause is to ensure that the objectives of these orders are not frustrated by giving offenders premature warning of impending action to restrain and confiscate their property, thereby giving them time to destroy or conceal relevant information or property.

Clause 243 deals with the notice requirements for applications for other types of confiscation proceedings. The purpose of the notice requirements is to ensure that relevant people have an opportunity to be present in court and to put arguments to the court before decisions are made. Clause 243(7) makes it clear that the absence from the court of a person who has been given notice does not prevent the court from making an order.

Clause 244 explains that once a confiscation proceeding has begun in relation to an offence, any other related confiscation proceeding for that offence can be commenced by way of notice of motion, or by motion, and is taken to be an interlocutory application.

Clause 245 permits the court to extend the time in which applications may be made. The court can give leave to make an application out of time if it is satisfied that:
• property or benefits covered by the application were only derived or identified after the normal time limit expired
• crucial evidence became available only after the normal time limit expired
• it is otherwise desirable having regard to the purposes of the Bill.

Clause 246 explains how the court can grant leave to amend applications. Applications can be amended at any time before the relevant proceeding has been finalised.

Clause 247 confers a general power on the court to take into account any material it considers appropriate. This power is subject to the normal rules of evidence such as those relating to relevance and admissibility.

Clause 248 is particularly important to preserve the integrity of ongoing investigations into criminal activity. It exempts a witness in confiscation proceeding from answering questions or producing documents where doing so may prejudice an investigation or prosecution in relation to an indictable offence.

Clause 249 confers a general power on the court to make additional orders associated with confiscation proceedings, other than proceedings relating to restraining orders. This restriction is included because clause 39 deals with additional orders about restraining orders.

Clause 250 makes it an offence to contravene an additional order made under clause 249.

Clause 251 explains that orders in confiscation proceedings may be made by consent. In such cases, the court need not be satisfied that the grounds for making the order exist.

Clause 252 details the requirements for giving notice of the making of orders. The purpose of this provision is to ensure that all persons with an interest in the outcome of confiscation proceedings are given notice of any orders made by the court in those proceedings. The requirement to give notice does not apply where an order has been made to restrict disclosure of the making of a confiscation order, or for restraining orders (which are covered by separate provisions in part 4).

Clause 253 makes it clear that confiscations can proceed concurrently with other legal proceedings dealing with related matters. An example of such a proceeding would be a criminal prosecution for an offence relevant to the confiscation proceeding.

PART 15 MISCELLANEOUS

Clause 254 deals with the privilege against self-incrimination and legal professional privilege. It expressly overrides provisions in the Legislation Act 2001 dealing with these privileges. The purpose of this clause is to ensure that these privileges do not act to protect persons engaged in serious or organised criminal activity from effective action under the Bill, or from prosecution in relation to criminal activity that is uncovered in the course of an investigation under the Bill.

In relation to the privilege against self-incrimination, clause 254(2) makes it clear that the person is not excused from disclosing a matter because it might tend to incriminate that person, make that person liable to a penalty, or make that person' s property liable for forfeiture.

Clause 254(3) explains that a person is not excused from disclosure because the disclosure would breach that person's obligation not to disclose a matter. The effect of this clause is to override legal professional privilege. This provision has not been included lightly. It is included in recognition of the circumstance that offenders involved in serious or organised criminal activity, particularly money laundering, may employ legal and other professionals to assist with transactions which are intended to hide property or obscure its criminal origins. This provision ensures that the offender cannot rely on legal professional privilege to prevent a legal adviser from disclosing details of these transactions when required to do so under the Bill.

Clause 254(4) provides that anything disclosed to the authorities because of the requirement to disclose cannot be used in legal proceedings against the person, except in limited circumstances. These circumstances include prosecutions for offences under the Bill in relation to making a false or misleading disclosure and confiscation proceedings under the Bill. It should be noted that the prohibition on using disclosures against the person in legal proceedings does not extend to information derived from such disclosures. The reason for excluding derivative use immunity is that it is not unusual for a person suspected of involvement in an offence for which there is a criminal proceeds investigation underway may also be involved in other criminal activities, which come to light only as a result of a disclosure made during the investigation. If none of the information derived from a disclosure were to be admissible in other legal proceedings, the ability of the police to use the powers in the Bill to obtain crucial information would be significantly impaired.

Clause 254(5) explains that a person cannot be sued for disclosing information in breach of an obligation of confidentiality, where obliged to do under the Bill.

Clause 255 puts it beyond doubt that a person must comply with an order under the Bill even if a criminal proceeding has begun, or is about to begin, against a person.

Clause 256 explains the interaction of the Bill with other laws, by making it clear that a power under the Bill does not limit or exclude the operation of any other powers conferred by law.

Clause 257 is included to provide an additional safeguard against any misuse of the quasi-judicial powers conferred on the police under the examination notice provisions in Division 12.5. Similar reporting requirements are found in legislation in other jurisdictions, dealing with matters such as telephone intercept warrants and electronic surveillance warrants, in order to ensure that there is independent scrutiny of the exercise of these intrusive types of police powers. The purpose of the report under clause 257 is to ensure that the government and the Legislative Assembly are kept informed about how frequently these special powers are used, whether they are effective and whether they are being used appropriately.

The Chief Police Officer is required to prepare a report for the Minister for each financial year about the use of examination notice powers during the reporting period. The Minister must table the report in the Legislative Assembly. The report must detail:
• the number of persons served with examination notices in the relevant year
• the number of investigations related to those notices (for example, in a very complex investigation many individuals could be issued with an examination notice)
• the number of examinations actually conducted in that year.

The report must also contain information about other action arising during the year from the use of examination notices. To take account of lag times between the issuing of a notice and the action which may result from it, it does not matter whether the particular notice giving rise to the action was issued during the reporting year, or in a previous year. For each reporting year, the report must include details of:
• the number and type of confiscation proceedings commenced for matters where an examination notice applied
• the estimated value of property restrained or confiscated for matters where an examination notice applied
• the number of charges laid for examination notice offences
• the number of arrests made for matters where an examination notice applied
• the number and kind of complaints made to the police or the Commonwealth Ombudsman about the use of examination notices
• the number of complaints resolved, and the outcome
• the number of legal proceedings commenced about the use of examination notices
• the number of such proceedings finalised during the year and the outcome.

Clause 258 authorises the Minister to approve forms for the purposes of the Bill.

Clause 259 contains regulation making powers for the Bill.

PART 16 CONSEQUENTIAL AND TRANSITIONAL MATTERS

Clause 260 provides for the repeal of the Proceeds of Crime Act 1991 and the Proceeds of Crime Regulations 1993.

Clause 261 explains how the repealed provisions will continue to apply in relation to property or benefits subject to a proceeding or order under the repealed provisions. Importantly, clause 261(3) provides that a restraining order made under the repealed Act is taken to be a restraining order made under the Bill. This provision will ensure that the transition period from the repealed legislation to the new legislation does not provide offenders with an opportunity to dispose of or conceal such property.

Clause 262 makes it clear that an application can be made for a civil forfeiture order or a civil penalty order for an offence under the new provisions even if an earlier application under the repealed provisions had been made in relation to the same offence or related offence.

Clause 263 explains that property, documents or information that was seized or otherwise obtained under the repealed legislation may be used for the purposes of the new legislation.

Clause 264 explains that the funds contained in the confiscated assets trust fund established under the repealed legislation are transferred into the confiscated assets trust fund established under part 10 of the Bill.

Clauses 265 and 266 create regulation making powers that allow the Executive to make regulations dealing with transitional matters. These clauses will facilitate a smooth transition from the previous scheme under the ACT POCA to the new scheme under the Bill.

Clause 267 explains that amendments to other legislation are contained in schedule 1.

Clause 268 explains that part 16 will expire two years after its commencement. The purpose of this clause is to ensure that the transitional provisions in this part automatically omitted from later reprints of the Bill after they have served their purpose.

SCHEDULE 1 AMENDMENTS OF OTHER LEGISLATION

Part 1.1 Administrative Decisions (Judicial Review) Act 1989

Item 1.1 inserts a reference to the Confiscation of Criminal Assets Act 2002 into schedule 1 of the Administrative Decisions (Judicial Review) Act 1989. The purpose of this amendment is to ensure that well-resourced offenders do not tie up valuable court and prosecutorial resources by making interlocutory challenges to administrative decisions associated with proceeds of crime investigations.

Part 1.2 Crimes Act 1900

This part of the schedule contains amendments to the Crimes Act 1900.

Item 1.2 of the Schedule inserts new section 7A into the Crimes Act 1900. This section explains that the principles of criminal responsibility contained in the Criminal Code 2002 apply to the new money-laundering and organised fraud offences, and the offence of unlawful possession of money or goods. These offences will be inserted into the Crimes Act 1900 by the Schedule to the Bill.

Item 1.3 of the Schedule inserts new division 6.2A into the Crimes Act 1900. This division deals with money laundering and organised fraud offences. These offences are currently located in the ACT POCA but with the repeal of that Act, they will be moved to the Crimes Act 1900. This relocation is an interim measure, as it is envisaged that in the longer term these provisions will be placed in the proposed ACT Criminal Code 2002. The offences have been re-written in language that is consistent with the Criminal Code 2002.

Item 1.4 of the Schedule inserts new definitions of "tainted property" and "target material" into section 185 of the Crimes Act 1900.

Items 1.5, 1.6 and 1.7 of the Schedule amend sections 194 and 195 of the Crimes Act 1900 (which deal with search warrants) to include references to "target material" and "tainted property", as used in the Confiscation of Criminal Assets Act 2002.

Item 1.8 replaces sections 250 and 251 of the Crimes Act 1900 with new section 250. This new provision provides for the disposal of forfeited articles by the public trustee, and makes it clear that proceeds from the sale or disposition of forfeited articles are disbursed to cover the public trustee's costs in relation to that sale or disposition, with the balance to be paid into the confiscated assets trust fund. The Minister is able to direct the public trustee to deal in another way with a forfeited article, and where such a direction is made, the public trustee must comply with it.

Items 1.9 and 1.10 of the Schedule amend section 344 of the Crimes Act 1900 to clarify the courts' powers when sentencing an offender against whom confiscation action has been taken, or may be taken, under the Bill. The effect of these amendments is to emphasise that confiscation action is not primarily punitive in nature and to make it clear that the court cannot reduce the severity of the sentence that would otherwise be imposed because confiscation action has been taken against the offender in relation to that offence.

Item 1.11 amends section 350(1A) of the Crimes Act 1900 to provide that an offender cannot be ordered to make reparation to a person simply because that person's property has become subject to a restraining order or forfeiture order under the Confiscation of Criminal Assets Act 2002 (for example, where the person jointly owned property with the offender and the property is restrained because of the offender's criminal behaviour).

Item 1.12 provides for the section 350 of the Crimes Act 1900 to be renumbered when that Act is next republished.

Item 1.13 provides for the repeal of section 386 of the Crimes Act 1900 and its replacement with new sections 386, 386A, 386 and 386C.

New section 386 makes it an offence to have custody of unlawfully obtained money or goods, to keep unlawfully obtained money or goods in premises, or to give custody of unlawfully obtained money or goods to someone not entitled to that custody. In essence, these are offences about "fencing" stolen goods and helping people to launder money. Under new section 386A, where a person is convicted of an offence under section 386, the relevant money or goods become forfeited to the Territory, unless the owner of the goods is located and is not a person who has been convicted of a relevant offence. The forfeited money or goods are transferred to the public trustee.

Under new section 386B, the public trustee must pay any forfeited money obtained under new section 386A into the confiscated assets trust fund. Similarly, any proceeds from the sale of goods forfeited under new section 386A are to be paid into the confiscated assets trust fund.

New section 386C allows the previously unknown owner of any money or goods that have been forfeited under new section 386 to come forward and seek to return of the forfeited goods or money, or compensation.

Item 1.14 amends the dictionary to the Crimes Act 1900 to include new definitions of "tainted property" and "target material", while item 1.15 omits the definition of "trust fund".

Part 1.3 Prostitution Act 1992

Item 1.16 of the schedule makes a consequential amendment to the Prostitution Act 1992 to reflect the transfer of money laundering offences from the repealed Proceeds of Crime Act 1991 to the Crimes Act 1900.

DICTIONARY

The dictionary to the Bill contains definitions of key terms and phrases in the Bill.

Australian Capital Territory Bills Explanatory Statements

CONFISCATION OF CRIMINAL ASSETS BILL 2002

EXPLANATORY MEMORANDUM

CONFISCATION OF CRIMINAL ASSETS BILL 2002

OUTLINE

REVENUE/COST IMPLICATIONS

CONFISCATION OF CRIMINAL ASSETS BILL 2002

NOTES ON CLAUSES