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2002
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PROCEEDS OF CRIME (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2002
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice and Customs
Senator the Honourable Chris Ellison)
Proceeds of Crime (Consequential Amendments and Transitional
Provisions) Bill 2002
General Outline
This Bill supplements the provisions of the
Proceeds of Crime Bill 2002 by providing transitional provisions and making
consequential amendments to other Commonwealth legislation. The Bill repeals
the existing money laundering offences in the Proceeds of Crime Act 1987 and
replaces them with new provisions in the Criminal Code which are graded both in
terms of the mental element required to be established and the value of the
property the subject of the dealing which constitutes money laundering.
The Mutual Assistance in Criminal Matters Act is also amended not only
to reflect the provisions of the new proceeds regime but also to move many of
the provisions which relate to foreign orders and offences from the Proceeds of
Crime Act 1987 into that Act. These provisions will also enable the enforcement
of civil forfeiture related orders in relation to prescribed countries. It is
envisaged that only those countries would be proscribed which provide
reciprocity and where there is confidence that the confiscation regime is fair,
adequately supervised by an independent judiciary and provides adequate
safeguards for innocent third parties.
The Financial Transaction Reports
Act 1988 is amended to include the record retention provisions previously
included in the Proceeds of Crime Act 1987.
The Bankruptcy and Family Law
Acts are amended to clarify the relationship between proceedings under those
Acts and proceedings under the Proceeds of Crime Bill 2002.
Consistent with
the recommendations of the Australian Law Reform Commission proceeds of crime
proceedings will normally take precedence over those other
proceedings.
The Taxation Administration Act is amended to expand access
by authorised law enforcement agencies to taxation information for the purpose
of civil forfeiture investigations and proceedings. The Telecommunications
(Interception) Act 1979 is amended to enable the NCA to pass information gained
through telephone interception to the Commonwealth DPP and state and territory
equivalents in conviction-based proceeds of crime proceedings.
The
Administrative Decisions (Judicial Review) Act 1977 is amended to ensure that
decisions by the DPP and an approved examiner relating to the conduct of a
compulsory examination under the Proceeds of Crime Act are not subject to that
Act. The AFP Act is amended to specifically confer powers under the Proceeds
of Crime legislation on the AFP.
The amendments to other legislation
are purely consequential.
Schedule 7 to the Bill contains the
transitional provisions for the phasing out of the confiscation regime in the
Proceeds of Crime Act 1987. Generally speaking after the commencement of the
new legislation the existing information gathering powers can only be used to
execute existing warrants or orders. All orders and warrants are to be sought
under the new provisions and information already obtained under the 1987 Act is
to be treated as if it were obtained under the new regime. In relation to
confiscation action if no restraining order exists at the time of commencement
all orders must be sought under the new legislation. Where a restraining order
exists all action and enforcement continues under the 1987
Act.
Financial Impact
There is no financial impact flowing
directly from the provisions of this Bill. However, as these provisions will
render the confiscation regime more effective both in its international
operation and in avoiding abuse of bankruptcy and family law proceedings to
dissipate assets the impact should be to significantly increase Government
revenue. There may be some effect on creditors and divorcing couples as
proceeds of criminal activity can no longer be used to satisfy bankruptcy
creditors or to support former spouses.
Abbreviations used in the
Explanatory Memorandum
ACS Australian Customs Service
AFP
Act Australian Federal Police Act 1979
AFP Australian Federal
Police
ALRC Australian Law Reform Commission
ASIC Australian
Securities and Investments Commission
Bankruptcy Act Bankruptcy Act
1966
CAA Confiscated Assets Account
CRF Consolidated Revenue
Fund
Crimes Act Crimes Act 1914
Customs Act Customs Act
1901
DPP Director of Public Prosecutions (Commonwealth)
FL
Act Family Law Act 1975
FTR Act Financial Transaction Reports
Act 1988
FTRA Financial Transaction Reports Act
1988
IFO interstate forfeiture order
IRO interstate restraining
order
IWCT Act International War Crimes Tribunals Act
1995
LAC legal aid commission
LPO literary proceeds order
MA
Act Mutual Assistance in Criminal Matters Act 1987
NCA National
Crime Authority
OT Official Trustee
PoC Act 1987 Proceeds of Crime
Act 1987
PoC Bill 2002 Proceeds of Crime Bill
2002
PPO pecuniary penalty order
TI Act Telecommunications
(Interception) Act 1979
NOTES ON CLAUSES
Clause 1 Short Title
This is a formal clause which provides for the citation of the
Bill.
Clause 2 Commencement
This clause sets out when each
provision in this Act commences, or is taken to have commenced.
Clauses 1
to 3 commence on the day on which the Bill receives Royal Assent.
The
provisions relating to money laundering (Schedule 1); foreign proceeds of crime
orders and requests by Australia for orders in foreign countries (Schedule 2);
the retention of financial transaction documents (Schedule 3); and bankruptcy
(Schedule 4) all commence on the day specified in a proclamation as the day on
which sections 3 to 332 of the Proceeds of Crime Act 2002 commence.
Schedule 5 relates to property settlement and spousal maintenance
proceedings. Items 1 to 9 of this schedule similarly commence on the day
specified in a proclamation as the day on which sections 3 to 332 of the
Proceeds of Crime Act 2002 commence. Item 10 of this schedule commences either
on the above-mentioned day or immediately after the commencement of section 5 of
the Family Law Legislation Amendment (Superannuation) Act 2001, whichever is the
later.
Schedules 6 and 7, which covers all other amendments, also
commence on the day on which sections 3 to 332 of the Proceeds of Crime Act 2002
commence.
Clause 3 Schedule(s)
This clause makes it clear
that each Act which is specified in one of the Schedules to this Act is amended
or repealed in accordance with the relevant provisions.
SCHEDULE 1 – MONEY
LAUNDERING
Criminal Code Act 1995
Item
1 - Schedule. The offences in the Criminal Code Act 1995 are
contained in a schedule. This item amends that schedule by adding new Part 10.2
and Division 400, both of which are headed ‘Money Laundering’ and
contain new money laundering offences. These replace the money laundering
offences in sections 81 and 82 of the Proceeds of Crime Act 1987. All
very serious offences are placed in the Criminal Code for convenience.
The Criminal Code contains the general principles by which offences are
interpreted as well as other serious offences which in many cases will be
relevant to the money laundering offences. The policy of placing the very
serious offences together in this way is not only a feature of the Commonwealth
Criminal Code but also the legislation of most jurisdictions throughout
the world. It is also a feature of the Model Criminal Code which was developed
by Commonwealth, State and Territory officers and by implication was favoured by
the ALRC when it suggested it should be located in the old central criminal
statute, the Crimes Act 1914 (recommendation 32). Most of the Criminal
Code is based on the Model Criminal Code.
Proposed section 400.1
Definitions. The first definition that requires explanation is
‘authorised deposit-taking institution’. It nominates
financial institutions over which the Commonwealth has jurisdiction and ensures
the offences apply to money laundering through such institutions. These are a
body corporate involved in a banking type business, the Reserve Bank and State
banks that have business extending beyond the limits of the particular State
(paragraph 51(xiii) of the Constitution. The definition is identical to that in
section 3 of the PoC Act 1987. ‘Instrument of crime’
introduces a new concept for the purposes of the money laundering
offences which were previously only concerned with ‘proceeds of
crime.’ Consistent with recommendation 22 of the ALRC report, the
definition extends the coverage to money or property used in the commission of,
or to facilitate the commission of, an indictable offence. However, it is not a
new concept in the context of proceeds of crime legislation. A similar concept
is used as part of the definition of ‘tainted property’ in section 4
of the PoC Act 1987 and in clause 338 of the PoC Bill. ‘Proceeds of
crime’ is similar in effect to the definition in section 4 of the
PoC Act 1987, so this aspect of the new money laundering offences remains much
the same. It is restricted to the proceeds of indictable offences.
‘Property’ is defined in the same way as in section 4
of the PoC Act 1987 and clause 338 of the PoC Bill. It covers real and personal
property whether in or outside Australia and interests in such property. In
accordance with recommendation 27 of the ALRC report, proposed subsection
400.1(2) is included to make it clear it includes financial instruments, cards
and other such items regardless of whether they have intrinsic value.
Proposed section 400.2 - Meaning of dealing with money or other
property
Dealing with money or other property is a key element of the
serious money laundering offences in proposed sections 400.3 to 400.8. This
differs from the existing serious money laundering offence at section 81 of the
PoC Act 1987 and extends the scope of the Commonwealth offences more closely to
Constitutional limits. Section 81 was limited to transactions related to
Commonwealth and certain Territory indictable offences, foreign offences or
which involved bringing proceeds into Australia. Proposed subsection 400.2(1)
covers exports as well as imports and other dealings, including banking
transactions. This is in accord with recommendation 24 of the ALRC report.
Under proposed subsection 400.2(2) the ‘dealing’ definition covers
transactions related to State and Territory offences where it involves the
import or export of goods, electronic communications, postal or telegraphic
communications or a transaction in the course of banking (other than certain
State banking). In accordance with recommendation 22 of the ALRC report it also
extends the offences to cover ‘instruments of crime’. Proposed
subsection 400.2(3) makes it clear that ‘banking
transactions’ include transactions involving a money order and that
exports and imports of money or other property includes the transfer of
money or property by an electronic communication. These definitions modernise
the offences in line with contemporary methods of engaging in financial
transactions. There are also definitions of ‘Commonwealth indictable
offence’ and ‘foreign indictable offence’ which do
not require further explanation.
Proposed section 400.3 - Dealings
worth $1,000,000 or more
This is the most serious of 5 offences
which prohibit the more significant types of money laundering. A criticism of
the old offence in section 81 of the PoC Act 1987 was that for an offence
carrying a maximum penalty of 20 years imprisonment it was far too broad. It
could apply where the money or property was small in value and even where the
defendant did not advert to the fact it was derived or realised from some form
of illegal activity. It was only necessary for the prosecution to prove the
defendant ought reasonably have known of these things.
Chapter 2 of the
Criminal Code has a menu of general fault elements that provide a more
appropriate basis for criminal liability which together with variations in
penalty provide the opportunity to more severely penalise those who are more
culpable and dealing in larger amounts. This also enables the legislature to
be more precise in its signal to the courts about the level of penalty it
considers to be appropriate for the particular conduct. While this means that
there are more offences they provide a level of precision which is warranted
given the consequences of being convicted of money laundering. The ALRC did not
make recommendations in relation to the fault elements for the equivalent
offence but at paragraph 7.18 of page 121 expressed strong support for the
requirement that fault be proved by the prosecution for such a serious offence.
Proposed subsection 400.3(1) is the most serious offence. The maximum
penalty is 25 years imprisonment (an increase of 5 years on the existing
penalty) and/ or a fine of $165,000 for an individual or $825,000 for a body
corporate. However, the offence applies to dealings in very large sums -
proceeds of crime worth $1,000,000 or more and where the person believes
the money or other property to be a proceed of crime or intends that it
will become an instrument of crime.
If the person was reckless
about the money or other property being a proceed or about the risk that it is
an instrument of crime there is a lower maximum penalty. Applying section 5.4
of the Criminal Code which provides for the meaning of recklessness, this
offence would occur where the person is, aware of a substantial risk that the
money or property was, or would become, a proceed or an instrument of crime and
having regard to the circumstances known to him or her it was unjustifiable to
take that risk. Where this is the case the offence at proposed subsection
400.3(2) provides a maximum penalty of 12 years imprisonment and or a fine of
$79,200 for an individual or $325,000 for a body corporate.
Finally,
where the person was negligent about the money or other property being a
proceed or instrument of crime the penalty prescribed is lower again. Applying
section 5.5 of the Criminal Code which provides for the meaning of
negligence, this offence would occur where the dealing involved such a great
falling short of the standard of care that a reasonable person would exercise in
the circumstances, and such a high risk that the dealing merits criminal
punishment. Where this is the case the offence at proposed subsection 400.3(3)
provides a maximum penaltyof5 years imprisonment and or a fine of $33,000 or
$165,000 for an individual.
Proposed subsection 400.3(4) accords with
the usual practice where the Criminal Code applies to an offence.
Due to the strict requirements of the Criminal Code in relation to
proof of fault in relation to all elements of offences, it is necessary to state
that it is not necessary for the prosecution to prove that the defendant knew,
or was aware of, the value of the dealing for him or her to be convicted of
these offences. This is achieved by providing that absolute liability applies
to that element of the offence. This is consistent with other offences that
have been enacted in recent years. It has been accepted that it is not
necessary to prove an element that does not impact on culpability and in some
circumstances would be difficult to establish. However, in this case it is
considered appropriate that special rules should operate to reduce the penalty
where the defendant has made a mistake of fact about the value. This is dealt
with in more detail in the notes on proposed section 400.10.
These
offences cover the conduct and culpability covered by the offence in section 81
of the PoC Act, but provides for much more appropriate
penalties.
Proposed sections 400.4 to 400.8 - Lesser dealings
These provisions provide for offences follow the same pattern as
proposed section 400.3.
Where the dealings involve money or property
with a value of $100,000 or more the maximum penalty is 20 years
imprisonment and or a fine ($132,000:individual; $660,000:body corporate) if the
dealing was intentional, 10 years ($66,000:individual; $330,000:body corporate)
if there was recklessness; and 4 years ($26,400:individual; $132,000:body
corporate) if it was negligent (proposed section 400.4).
Where the
dealings involve property or money with a value of $50,000 or more the
maximum penalty is 15 years and or a fine ($99,000:individual;$495,000:body
corporate) if they were intentional, 7 years ($46,200:individual; $231,000:body
corporate) if there was recklessness; and 3 years ($19,800:individual;
$99,000:body corporate) if it was negligent (proposed section 400.5).
Where the dealings involve property or money with a value of $10,000
or more the maximum penalty is 10 years and or a fine ($66,000:individual;
$330,000:body corporate) if they were intentional, 5 years ($33,000:individual;
$165,000:body corporate) if there was recklessness; and 2 years
($13,200:individual; $66,000:body corporate) if it was negligent (proposed
section 400.6).
Where the dealings involve$1,000 or more the
maximum penalty is 5 years and or a fine ($33,000:individual; $165,000:body
corporate) if they were intentional, 2 years ($13,200:individual; $66,000:body
corporate) if there was recklessness; and 12 months ($6,600:individual;
$33,000:body corporate) if it was negligent (proposed section 400.7).
Finally there is a basic offence with a maximum penalty of 12 months and
or a fine ($6,600:individual; $33,000:body corporate) if the dealing is
intentional, 6 months ($3,300:individual; $16,500:body corporate)
if there
was recklessness; and a $1,100 fine if it was negligent (proposed section
400.8).
This approach provides the courts with very specific guidance
about sentencing of money launderers. It is intended to result in offenders who
are more culpable and have dealt in larger amounts receiving more severe
sentences.
Proposed sections 400.9 - Possession, etc of property
reasonably suspected of being proceeds of crime
This inserts a lesser
money laundering offence based on existing section 82 of the PoC Act 1987. Like
section 82 the proposed offence applies to those who receive, possess, conceal
or dispose of, or bring into Australia any money or other property that may
reasonably be suspected of being proceeds of Commonwealth or foreign crimes.
However, the proposed offence also covers taking money outside Australia
(‘exports’ as well as ‘imports’) and the proceeds of
State and Territory offences where they involve the import or export of goods,
postal or telegraphic communications or a transaction in the course of banking
(other than certain State banking). These changes are in accord with
recommendations 25 and 26 of the ALRC report and are at subsections
400.9(1)(a)(ii) and (3)which mirror those proposed in relation to the more
serious money laundering offences (proposed sections 400.3 to 400.8). The
maximum imprisonment penalty remains the same at 2 years imprisonment. The
fines of $5,500 (individuals) and $27,500 (corporations) have been increased to
reflect those which would apply to similar offences.
Proposed
subsection 400.9(2) takes a different approach to that in section 82. It
specifies a range of activity which is taken to satisfy the reasonable suspicion
element of the offence: structuring transactions to avoid reporting
requirements, the use of false names for accounts, using grossly out of
proportion valuations, contraventions of the Financial Transaction Reports
Act 1988, and engaging in transactions on behalf of others but not being
prepared to identify such persons or their location. This provides a more
specific basis for liability than section 82 and follows the approach of
recommendation 28 of the ALRC report. Note that subsection 400.9(4) contains a
device where absolute liability is used to with respect to paragraph (1)(b) to
facilitate reliance on the matters listed in proposed subsection 400.9(2). This
reflects the transparency about fault required by Chapter 2 of the Criminal
Code in relation to all offences.
At the same time proposed
subsection 400.9(5) retains the defence contained in subsection 82(2) which
applies where the defendant proves that he or she had no reasonable grounds for
suspecting that the money or property was derived or realised from some form of
unlawful activity. As with section 82, the defendant bears the legal burden of
proof in relation to these matters. This is appropriate given the knowledge and
information the defendant will have concerning the transaction, the difficulty
law enforcement agencies are likely to have in obtaining such information and
the relatively low penalty.
Proposed section 400.10 - Mistake of
fact as the value of money or property
Proposed subsection 400.10(1)
provides that where at the time of, or before, the dealing which constitutes one
of the serious money laundering offences, the person considered the value of
the money or property and was under a mistaken but reasonable belief about that
value and, had that belief been correct, a lesser offence would have applied.
The effect of the offences and this provision is that if a person had not
bothered to consider the value and the actual value made the offence one in a
higher offence category, then subsections 400.3(4), 400.4(4), 400.5(4), 400.6(4)
and 400.7(4) which apply absolute liability to the value, will operate to make
belief about the value something that the prosecution does not have to prove.
The approach of applying mistake of fact as in proposed section 400.10 is
consistent with the way the same principle operates in relation to strict
liability (under section 9.2 of the Criminal Code) but is tailored to
provide that the person is not to be completely absolved from liability. The
aim is to ensure that where the person is less culpable about the element of the
offence concerning the value of the dealing, then he or she should be subject to
a lower maximum penalty. Proposed subsection 400.10(2) takes into account
assessments of the value based on previous experience.
Proposed
section 400.11 - Absolute liability - whether indictable
offences
This simply ensures that the prosecution does not have to
prove knowledge about whether the offences relevant to the money laundering are
indictable. Knowledge about this element has nothing to do with the essence of
the offence and would be very difficult to establish.
Proposed section
400.12 - Combining several contraventions in a single charge
In
accordance with recommendation 31, for procedural convenience, this allows for
the combination of charges in relation to the proposed offences. It also
prevents the structuring of dealings with a view to manipulating the value based
penalty scheme. The provision achieves this by allowing the total value to be
taken into account when there are multiple dealings.
Proposed section
400.13 - Proof of other offences is not required
Money laundering is
often linked to other offences, usually referred to as the ‘predicate
offence’. This provision makes it clear that it is not necessary to prove
those other offences with particularity about the exact offence or the
particular offender.
Proposed section 400.14 - Alternative
verdicts
This is a standard provision used elsewhere in the
Criminal Code to ensure that where the trier of fact concludes that the
defendant is not guilty of say a more serious offence, but is guilty of a lesser
offence, the trier may make that finding. This type of provision is used where
there are groups of offences that have similar elements such as those in
relation to money laundering. This means that if the trier considered the
prosecution overestimated the value of the relevant property, and the actual
value makes the charge no longer appropriate, it is open for the trier to
convict the defendant of an appropriate offence with a lower penalty. This is an
alternative verdict mechanism.
Proposed section 400.15 - Geographical
jurisdiction
Category B extended geographical jurisdiction is
appropriate for these offences because they often involve international
dealings. Section 15.2 of the Criminal Code provides that offences
categorised in this way can be committed not only wholly or partly in Australia,
but also wholly outside Australia if the person who committed the offence is an
Australian national or resident. This recognises that there is scope for money
launderers based in Australia to try to avoid authorities in Australia by
dealing in the money or other property off-shore.
Proposed section
400.16 - Saving of other laws
As with quite a number of other
offences in the Criminal Code (for example, theft), there is some overlap
of the proposed money laundering offences with State and Territory offences
(particularly now that it is proposed that the scope of the money laundering
offences be extended to cover dealings other than those involving Commonwealth
and foreign offences). It is not intended that State and Territory authorities
should be precluded by the Commonwealth offences from prosecuting similar
offences under their law. However the normal rules of double jeopardy
apply.
Proceeds of Crime Act 1987
Item 2
This item repeals the definition of ‘proceeds of crime’ from the PoC
Act 1987.
Item 3 This item repeals the old money laundering
offences (sections 81 and 82 of the PoC Act 1987). Differences between them and
the new offences are explained in the notes on the new
offences.
Telecommunications (Interception) Act
1979
Item 4 This item updates cross-references to ensure
interception may be authorised to occur in relation to the more serious money
laundering offences (proposed sections 400.3 to 400.8). As was the case
previously in relation to the offence at section 82 of the PoC Act, interception
is not available in relation to the lesser offence (proposed section 400.9).
This is consistent with general policy that such powers should only be available
for use in relation to serious offences.
SCHEDULE 2 – FOREIGN PROCEEDS OF CRIME ORDERS AND
REQUESTS BY AUSTRALIA FOR ORDERS IN FOREIGN COUNTRIES
This
Schedule amalgamates and co-locates provisions currently in the Proceeds of
Crime Act 1987 and the Mutual Assistance Act in Criminal Matters 1987
which provide for the registration and enforcement of foreign
restraining and confiscation orders in Australia in relation to the confiscation
of assets located in Australia which are the proceeds of a foreign offence. The
Mutual Assistance in Criminal Matters Act 1987 also enables authorised
agencies, as the request of a foreign country and as authorised by the
Attorney-General, to apply for and use production orders, monitoring orders and
search warrants in relation to foreign serious offences where the it is
reasonably suspected that the proceeds or instrument or property-tracking
documents are located in Australia.
The provisions will be located in
the Mutual Assistance in Criminal Matters Act 1987. This Schedule also
widens the existing conviction-based scheme to enable foreign civil-based
restraining and confiscation orders to be registered and enforced, and makes
some procedural amendments to the existing regime.
Further, provisions
in the PoC Act 1987 relating to the enforcement of forfeiture orders made under
the International War Crimes Tribunals Act 1995 have been re-located into
that Act.
International War Crimes Tribunals Act 1995
Item 1 Part 6 of the International War Crimes Tribunals Act 1995 (‘IWCT Act’) enables forfeiture orders of the International War Crimes Tribunal to be enforced in Australia. Once registered, the order currently takes effect as if made under the PoC Act 1987. This amendment will replace the reference to the 1987 Act, and enable the order to take effect as if made under the PoC Bill 2002.
Item 2 This item inserts a new subsection into section 46 of the IWCT Act, to take into account changes made to the proceeds of crime regime by clause 68 of the PoC Bill 2002. This item also amends the effect of clause 64 in relation to the IWCT Act.
Section 68 of the PoC Bill 2002, as amended by this item, provides an exception to the rule that property specified in a forfeiture order vests absolutely in the Commonwealth at the time the order is made. Under clause 68 as amended, property specified in a forfeiture order where a joint owner of the property died before the forfeiture order was made, but after the DPP applied for registration of the forfeiture order under section 45 of the IWCT Act, is taken to have vested in the Commonwealth immediately before the person’s death. Any restraining order is also taken to have continued to apply to the property as if the person had not died.
The effect of this provision is that the property does not form part of the deceased’s estate.
Item 3 This item repeals subsection 46(3) of the IWCT Act, and replaces it with provisions mirroring section 23 the PoC Act 1987 (in so far as it applies to the IWCT Act ). It also updates references to provisions in the PoC Act 1987 in existing subsection 46(3) with the corresponding provisions in PoC Bill 2002.
Item 4 This item inserts a new provision in the IWCT Act which mirrors section 23A of the PoC Act 1987. The provision enables third parties who were not involved in the commission of the offence to which the forfeiture order relates, to in specified circumstances either have their interest in the property transferred to them by the Commonwealth or to be recompensed for their interest in the forfeited property. To be successful, the property must not be the proceeds or instrument of the offence within the meaning of the PoC Bill 2002. Under that Act, property ceases to be proceeds if acquired by a person for value and without knowledge that it was proceeds of the offence (eg an innocent third party).
If the person was given notice or appeared at the forfeiture order hearing, he or she may only apply under proposed section 46A if given leave by the court. Applications should be made within six weeks of the forfeiture order being registered in the court; however, court may give leave to apply in certain circumstances.
Item 5 This item enables regulations which are already in force under the PoC Act 1987 to continue in force as if they were made under the IWCT Act until regulations are made under that Act.
Mutual Assistance in Criminal Matters Act 1987
Item 6 This item inserts a definition of ‘account’.
Item 7 This item inserts a definition of ‘agent’.
Item 8 ‘Ancillary offence’ is currently defined in the MA Act by reference to the PoC Act 1987. This item repeals that definition, and inserts the PoC Act 1987 definition in full. As the PoC Act 1987 is to be repealed in the future, it is more appropriate that relevant definitions appear in the MA Act.
Item 9 This item amends paragraph (a) of the definition of ‘Australian forfeiture order’. It repeals the reference to ‘Proceeds of Crime Act’ and replaces it with a reference to a ‘proceeds of crime law’. A ‘proceeds of crime law’ is defined to include both the PoC Act 1987 and the PoC Bill 2002.
Item 10 This item inserts a new paragraph into the definition of ‘Australian forfeiture orders’, to take into account clause 95 of the PoC Bill 2002, which enables a court to make a declaration that property has been forfeited under Part 2-3 of that Act.
Item 11 This item amends paragraph (ab) of the definition of ‘Australian forfeiture order’. It repeals the reference to ‘Proceeds of Crime Act’ and replaces it with a reference to the PoC Act 1987. This limits the application of that paragraph to the old Act.
Item 12 This item inserts the definition of ‘literary proceeds order’.
Item 13 This item amends paragraph (a) of the definition of
‘Australian pecuniary penalty order’. It repeals the reference to
‘Proceeds of Crime Act’ and replaces it with a reference to a
‘proceeds of crime law’. A ‘proceeds of crime law’ is
defined to include both the PoC Act 1987 and the PoC Bill 2002.
Item
14 This item repeals paragraph (a) of the definition of ‘Australian
restraining order’, which referred to a restraining order within the
meaning of the PoC Act 1987 (other than a restraining order made by virtue of
section 59 of that Act), and replaces it with a reference to a ‘proceeds
of crime order’ (other than a restraining order made by virtue of section
59 of that Act or 34K of the MA Act.
Item 15 This item inserts a
definition of ‘authorised officer’.
Item 16 This item
inserts a definition of ‘Confiscated Assets Account’.
Item
17 This item inserts a definition of ‘enforcement
agency’.
Item 18 this item inserts a definition of
‘foreign confiscation proceedings’
Item 19 This item
inserts a definition of ‘foreign order’.
Item 20
This item repeals the definition of ‘foreign organised fraud
offence’, which is no longer required as proposed section 34R is now
closer to the definition of ‘serious offence’ in the PoC Bill
2002.
Item 21 This item inserts a definition of
‘instrument’.
Item 22 This item inserts a definition
of ‘interest’.
Item 23 This item inserts a definition
of ‘narcotic substance’.
Item 24 This item inserts a
definition of ‘officer’.
Item 25 This item inserts a
definition of ‘Official Trustee’.
Item 26 This item
repeals the definition of ‘proceeds’ and replaces it with a
reference to the definition in the PoC Bill 2002.
Item 27 This
item inserts a definition of ‘proceeds jurisdiction’
Item
28 This item amends the definition of ‘Proceeds of Crime Act’
from the 1987 Act to the 2002 Bill.
Item 29 This item inserts the
definition of ‘proceeds of crime law’, which is defined to include
both the PoC Act 1987 and the PoC Bill 2002.
Item 30 This item
inserts the definition of ‘related foreign serious
offence’.
Item 31 This item repeals the definition of
‘serious narcotic offence’, which is no longer required as proposed
section 34R is now closer to the definition of ‘serious offence’ in
the PoC Bill 2002.
Item 32 This item repeals the definition of
‘tainted property’. This reflects the different way this term is
used in the PoC Bill 2002 and the PoC Act 1987.
Item 33 This
item amends paragraph 32(b) to enable Australia to request an appropriate
authority of a foreign country to make arrangements for the enforcement of
literary proceeds orders (which are new orders under the PoC Bill
2002).
Item 34 This item repeals paragraph 33(a), which enables
Australia to obtain a warrant similar to a search warrant for tainted property
under PoC Act 1987 in a foreign country. In conjunction with item 35, this
reflects the amended search warrant regime in the PoC Bill 2002, which now has
one set of search warrant provisions, enabling ‘tainted property’,
property-tracking documents and evidential material to be searched for under the
one warrant.
Item 35 This item repeals the phrase ‘in
respect of property-tracking documents’ in paragraphs 33(c) and (d). As
noted in the discussion of item 34, this item reflects the amended search
warrant regime in the PoC Bill 2002.
Item 36 This item repeals
Division 2 of Part VI of the MA Act, and inserts a new Division 2 –
Requests by foreign countries
Subdivision A – Enforcement of
foreign orders
This subdivision replaces the existing section 34
of the MA Act, which governs the registration of foreign proceeds of crime
orders in Australia. It provides that once registration is effected, the
relevant order may be enforced as if it were made by a court under the PoC Act
1987. The PoC Act 1987 in turn provides that when enforcing foreign restraining
orders, forfeiture orders and PPOs registered in Australia, certain parts of the
PoC Act 1987 do not applied or are applied in modified form.
This
subdivision combines the provisions of the section 34 of the MA Act with
relevant provisions of the PoC Act 1987 to simplify use of the
legislation.
Proposed section 34 Requests for enforcement of foreign
orders
Proposed subsection 34(1) replicates current subsection 34(1)
of the MA Act, and enables the Attorney-General to authorise the DPP to apply
for the registration of a foreign forfeiture order or a foreign PPO made in
respect of a foreign serious offence. The Attorney-General can only authorise
the application for registration where it is reasonably suspect that relevant
property is located in Australia, and the Attorney-General is satisfied that a
person has been convicted of the offence and there are no appeal proceedings on
foot or able to be taken in relation to either the conviction or the forfeiture
order.
Subsection 34(2) is a new provision, which enables the
Attorney-General to authorise the DPP to apply for registration of a foreign
civil based forfeiture or pecuniary penalty order. This reflects both the
Commonwealth’s move to a civil-forfeiture regime, and the growing trend
worldwide.
The application of the provision is limited to where the
foreign country is specified in the regulations. This will ensure that the
Commonwealth is enforcing civil orders made on a similar basis to PoC Bill
2002.
Subsection 34(3) replicates subsection 34(2), and enables the
Attorney-General to authorise the DPP to apply for the registration of a foreign
restraining order in Australia. The Attorney-General may make such an
authorisation in relation to both civil- and conviction-based restraining
orders.
Subsection 34(4) performs the same function as subsection 34(3),
and sets out which courts have jurisdictions to hear such application. The new
provision reflects the jurisdictional provisions in the PoC Bill 2002.
Proposed section 34A Registration of
foreign orders
Under existing provisions, subsection 34(4) of the
MA Act applies subsection 23A(2) of the PoC Act 1987. Proposed subsections
34A(1) and (2) combine subsection 34(4) of the MA Act and subsection 23A(2) of
PoC Act 1987, and slightly amends those provisions.
The effect of
proposed subsections 34A(1) and (2) is that the DPP must give notice to people
who may have an interest in the property with a power for the court to make
directions if needed. This includes the persons the subject of the order
(currently excluded by subsection 34A(2)). The application must be considered
ex-parte if the DPP requests the court to do so (proposed subsection
34A(3)
Subsection 34A(4) replicates subsection 34(8) of the MA Act, and
enables amendments to a registered foreign PPO or restraining order to also be
registered. Amendments must be registered to have any effect under either the
MA Act of PoC Bill 2002.
Proposed subsection 34A(5) replicates subsection
34(9) of the MA Act, and provides how an order or amendment to an order must be
registered.
Proposed section 34B Enforcement of foreign forfeiture
orders
Proposed subsection 34B(1) replicates subsection 34(5) of the
MA Act, and provides that a registered foreign forfeiture order has effect as it
was made by the court under the PoC Bill 2002 at the time of registration.
Proposed subsection 34B(2) is a new provision which takes into account changes made to the proceeds of crime regime by clause 64 of the PoC Bill 2002. This proposed subsection also amends the effect of clause 64 in relation to the MA Act.
Clause 64 of the PoC Bill 2002, as amended by this proposed subsection,
provides an exception to the rule that property specified in a forfeiture order
vests absolutely in the Commonwealth at the time the order is made. Under
clause 64 as amended, property specified in a forfeiture order where a joint
owner of the property died before the forfeiture order was made, but after the
DPP applied for registration of the forfeiture order under the MA Act, is taken
to have vested in the Commonwealth immediately before the person’s death.
Any restraining order is also taken to have continued to apply to the property
as if the person had not died. The effect of this provision is that the
property does not form part of the deceased’s estate.
Proposed
subsection 34B(3) reproduces subsection 23(2) of the PoC Act 1987, and enables
the Attorney-General to give directions for the disposal of property the subject
of a registered foreign forfeiture order. This proposed subsection is subject
to the operation of the provisions in proposed subsection 34C regarding the
property interests of innocent third parties.
Proposed subsection 34B(4)
replicates subsection 23(1) of the PoC Act 1987 disapplies certain parts of the
PoC Bill 2002 which do not have practical application to the enforcement of
forfeiture orders under the MA Act.
Proposed section 34C Effect on third parties of registration of foreign forfeiture orders
This is largely based on section 23A of the PoC Act 1987, and enables third parties who were not involved in the commission of the offence to which the forfeiture order relates, to either have their interest in the property transferred to them by the Commonwealth or to be recompensed for their interest in the forfeited property. To be successful, the property must not be the proceeds or instrument of the offence within the meaning of the PoC Bill 2002. Under that Bill, property ceases to be proceeds if acquired by a person for value and without knowledge that it was proceeds of the offence (eg an innocent third party).
If the person was given notice or appeared at the forfeiture order hearing, he or she may only apply under section 46A if given leave by the court. Applications should be made within six weeks of the forfeiture order being registered in the court; however, court may give leave to apply in certain circumstances.
Proposed section 34C applies in relation to civil- and conviction-based orders alike.
Proposed section 34D Enforcement of foreign pecuniary penalty orders
Proposed subsection 34D(1) replicates section 34(6) of the MA Act, and
provides a registered foreign PPO may be enforced as if it were made by the
court under the PoC Bill 2002 at the time the order was registered. The
proposed subsection also enables the foreign PPO to be enforced as if it was a
debt due to the Commonwealth.
Proposed subsection 34D(2) is based on
subsection 63(6) of the PoC Act 1987, and provides that where a PPO is
registered in Australia, any subsequent payment made in relation to the PPO is
taken to be made in relation to that PPO. This ensures that the PPO is only
liable to be paid once, and that there are not two separate debts (eg one in
Australia and one in the originating foreign country).
Proposed
subsection 34D(3) disapplies Division 5 of Part 2-4 of the PoC Bill 2002 from
applying to foreign PPOs. Division 5 deals with the effect on PPOs of relevant
convictions being quashed – as a foreign PPO cannot be registered unless
the conviction and order are not subject to any further appeal, Division 5 has
no application.
Proposed section 34E Enforcement of foreign
restraining orders
Proposed subsection 34E(1) replicates subsection
34(7) of the MA Act, and enables a restraining order to have effect and be
enforced as if it were made by the court under the PoC Bill 2002 at the time the
order was registered, and as if it were an order directing that property not be
disposed of or otherwise dealt with.
Proposed subsection 34E(2) is the
equivalent of paragraphs 60(b) – (e) of the PoC Act 1987. The proposed
subsection amends the operation of specified parts of the PoC Bill 2002, to
account for the fact that it is operating in relation to foreign, not domestic,
orders.
Proposed subsection 34E(3) is the equivalent of paragraph 60(a)
of the PoC Act 1987, and operates the exclude a number of provisions from
applying when enforcing a foreign restraining order under PoC Bill
2002.
Proposed section 34F Faxed copies of foreign
orders
This item is similar to subsection 34(10) of the MA Act, but
has been altered to reflect the PoC Bill 2002, which provides that the original
order must be filed in court within twenty-one days of the faxed copy being
registered, without requiring that the original be registered.
Proposed section 34G Cancelling
registration
Proposed section 34G reproduces subsections 34(11), (12)
and (13) of the MA Act, and enables the Attorney-General to direct the DPP to
cancel the registration of a foreign PPO or restraining order. This may occur
where the order ceases to have effect in the foreign country, or the
cancellation of the order is appropriate in light of arrangements between
Australia and the foreign country, or any other circumstance. The
Attorney-General’s discretion to cancel the order is not fettered. Upon
application by the DPP, the court must cancel the
registration.
Proposed section 34H Certain provisions of the Proceeds
of Crime Act not to apply
This item disapplies certain parts of the
PoC Bill 2002, and replicates subsection 34(4) of the MA Act. Sections 317 and
318 and Part 4-2 of the PoC Bill 2002 relate to appeals against forfeiture
orders, recovery of costs for an action and legal assistance.
Subdivision B – Restraining orders relating to foreign
criminal proceedings.
This subdivision replaces the existing
section 36 of the MA Act, which enables the Attorney-General to authorise the
DPP to apply for a restraining order under the PoC Act 1987 in certain
circumstances. The PoC Act 1987 in turn provides that when the DPP makes such
an application, an interim restraining order may be issued. Subsection 59(1) of
that Act specifies provisions relating to the making of restraining orders which
do not apply or apply in modified form.
This subdivision combines the
provisions of section 36 of the MA Act with relevant provisions of the PoC Act
1987 to simplify use of the legislation.
Proposed section 34J
Requests for restraining orders
This item is based on section 36 of
the MA Act, and enables the Attorney-General to authorise the DPP to apply for a
restraining order covering property which is reasonably believed to be in
Australia, and is or is about to be the subject of a foreign restraining order.
Proposed section 34 K Applying for and making restraining
orders
This item is based on subsection 59(1) of the PoC Act 1987.
Proposed subsections 34K(1) and (2) enable the DPP to apply for a restraining
order under the PoC Bill 2002, and provide that Part 2-1 of that Act applies to
both the application and any order.
Proposed subsection 34K(3) is the
equivalent of paragraphs 59(1)(a) – (f) of the PoC Act 1987, and modifies
the operation of Part 2-1 of the PoC Bill 2002.
Proposed section 34L
Excluding property from restraining orders
This item is based on
subsection 59(2) of PoC Act 1987, and enables restrained property to be
recovered in certain circumstances.
The proposed section enables a third
party who was not involved in the commission of the offence to which the
forfeiture order relates, to have his or her interest in the property excluded
from the restraining order. To be successful, the property must not be the
proceeds or instrument of the offence within the meaning of the PoC Bill 2002.
Under that Act, property ceases to be proceeds if acquired by a person for value
and without knowledge that it was proceeds of the offence (eg an innocent third
party).
The proposed section also enables a property to be excluded if
the restraint of the property would cause financial hardship or it is otherwise
in the public interest to do so, regardless of whether the applicant for the
exclusion order is the subject of the order or a third party.
Proposed
section 34M Cessation of restraining orders
This item is based on
subsections 59(3), (4) and (5) of the PoC Act 1987. It provides that a
restraining order made under Subdivision B ceases to have effect 30 days after
it is made, or at a later time if so ordered by the court.
If a
restraining order under Subdivision A is granted within either the 30 days or
the extended timeframe, the restraining order ceases at that
point.
Subdivision C – Production orders relating to foreign
serious offences
This subdivision replaces existing provisions in
section 37 of the MA Act and subsection 69(1) of the PoC Act 1987 which enables
the Attorney-General to authorise a police officer to apply for a production
order under the PoC Act 1987 in certain circumstances. Subsection 69(1) of the
PoC Act 1987 in turn provides that when a police officer is authorised under
the MA Act to apply for a production order, such an order may be made under that
Act. The proposed subsection also specifies provisions relating to the making
of production orders which do not apply, or apply in a modified
form.
This subdivision combines the relevant provisions of subsection
37(1) of the MA Act with relevant provisions of the PoC Act 1987 to simplify use
of the legislation.
Proposed section 34N Requests for production
orders
Upon the request of a foreign country, proposed subsection 34N
enables the Attorney-General to authorise an authorised officer to apply for a
production order under the PoC Bill 2002 to obtain property-tracking documents
relating to criminal proceedings in the requesting foreign country. An
authorised officer may be a member of the AFP, NCA or ASIC, or an officer of
Customs, authorised by the appropriate agency head.
The production order
must be sought in the State or Territory in which the property-tracking
documents are reasonably believed to be located.
Proposed subsection 34N
is based on subsections 37(1) and (2) of the MA Act, in so far as they relate to
production orders.
Proposed section 34P Applying for and making
production orders
Proposed subsections 34P(1) and (2) are based on
subsection 69(1) of the PoC Act 1987, and enable an authorised officer to seek a
production order under the PoC Bill 2002, and that Part 3-2 of that Act is to
apply to both the application and any subsequent order.
Proposed
subsection 34P(3) is based on paragraphs 69(1)(a) and (b) of the PoC Act 1987.
The proposed subsection disapplies certain provisions in Part 3-2 for the
purposes of a production order made on request of a foreign country, and amends
the application of certain other provisions in Part 3-2.
Proposed
section 34Q Retaining produced documents
This proposed subsection
provides that an authorised officer may retain a property-tracking document
obtained as a result of a production order until the Attorney-General provides
written directions on how to deal with the document. It is clear from this
provision that such a direction may include forwarding that document to the
foreign country which requested the production order.
This provision is
based on subsection 69(2) of the PoC Act 1987.
Subdivision D
– Notices to financial institutions
This is a new form of
investigative power included in the PoC Bill 2002. Its exercise allows an
investigator to make a decision on whether to seek a warrant or production
order, or for the purpose of proceedings under the Act. One of the reasons for
the Notice is for AFP or NCA investigators to discover if a person holds an
account with the particular institution: that is, there is a known suspect, but
the location of their funds is not known. The provisions are based on
Recommendation 76 of the 1999 ALRC Report Confiscation that counts: A review
of the Proceeds of Crime Act 1987.
This subdivision enables notices
to financial institutions to be used in relation to proceedings or possible
proceedings under Division 2 of Part VI of the MA Act.
Proposed section 34R sets out the procedure that must be followed where
the Attorney-General or a senior Departmental officer gives a notice to a
financial institution requiring the production of information or documents
relevant to certain matters.
Under proposed subsection 206(1), a
specified officer may give a written notice to a financial institution requiring
the production of any information or documents relevant to certain account and
transaction information. The notice must not be issued unless the officer
reasonably believes that giving the notice is required to determine whether to
take action under Division 2 of Part VI of the MA Act or the PoC Bill 2002 in
connection with proceedings under that Division, or in relation to proceedings
under that Division or the PoC Bill 2002.
Proposed section 34S sets out what a notice must contain. First, it must
state that the officer giving the notice believes that giving the notice is
required to determine whether to take action under Division 2 of Part VI of the
MA Act or the PoC Bill 2002 in connection with proceedings under that Division,
or in relation to proceedings under that Division or the PoC Bill 2002. It must
also specify the name of the financial institution, the kind of information or
documents required to be provided, and the form and manner in which that
information or those documents are to be provided. Further, it must also state
that the information or documents must be provided within 14 days of the notice.
If the notice specifies that information about the notice must not be
disclosed, it must also set out the effect of the offences in proposed sections
34V (disclosing existence or nature of a notice) and 34W (failing to comply with
a notice).
Proposed section 34T provides that a financial institution or one of its
officers, employees or agents are protected from any action, suit or proceeding
in relation to any action taken by the institution or person in relation to its
or their response to a notice under proposed section 34R, or in the mistaken
belief that action was required under the notice. The same parties are also
protected from prosecution for money laundering offences in respect of the
information provided in response to a notice under proposed section 34R.
Proposed section 34U Making false statements in
applications
This proposed section creates the offence of providing a
false or misleading statement in relation to an application for a notice to a
financial institution. The offence applies whether the statement is given
orally or in a document or other form. The maximum penalty which can be imposed
in relation to this offence is 12 months imprisonment, a fine of 60 penalty
units, or both.
Proposed section 34V makes it an offence for a person given a notice
under proposed section 34R to disclose the existence or nature of the notice
where the notice specifies that information about the notice must not be
disclosed. The maximum penalty which can be imposed in relation to this offence
is 2 years’ imprisonment, a fine of 120 penalty units, or both.
Proposed subsection 34W(1) provides that it is an offence for a person to
fail to comply with a notice given under proposed section 206. The maximum
penalty which can be imposed in relation to this offence is 6 months’
imprisonment, a fine of 30 penalty units, or both.
Subdivision E
– Monitoring orders relating to foreign serious
offences
This subdivision replaces existing provisions in
subsection 37(2) of the MA Act and section 75 of the PoC Act 1987 which enable
the Attorney-General to authorise a police officer to apply for a monitoring
order under the PoC Act 1987 in certain circumstances. Subsection 75(1) of the
PoC Act 1987 in turn provides that when a police officer is authorised under the
MA Act to apply for a monitoring order, such an order may be made under that
Act. The subsection also specifies provisions relating to the making of
monitoring orders which do not apply, or apply in a modified form.
This
subdivision combines the relevant provisions of subsection 37(2) of the MA Act
with relevant provisions of the PoC Act 1987 to simplify use of the
legislation.
Proposed section 34X Requests for monitoring
orders
Proposed subsection 34X(1) enables a monitoring order to be
applied for by an authorised officer for the purpose of obtaining information
about account transactions in Australia which is reasonably believed to be
relevant to a proceeding or investigation relating to a serious offence in a
foreign country. An order may only be sought if the foreign country requests
it, and the Attorney-General authorises the authorised officer to so apply.
This provision is based on subsection 37(3) of the MA Act.
Proposed
subsection 34X(2) defines the foreign serious offences in relation to which a
monitoring order may be authorised under proposed subsection 34X(1). The
offences are closely aligned with those defines as ‘serious
offences’ in the PoC Bill 2002, and include offences punishable by 3 or
more years imprisonment where the unlawful conduct involves drugs (ie drug
trafficking), the benefit (or intended benefit) to a person of at least $10,000
or loss or intended loss to the foreign country of the same amount. Offences
relating to money laundering, people smuggling and failure to report financial
transactions are also included.
Proposed subsection 34X(3) specifies that
an order must be sought in a court able to hear matters on indictment – ie
an intermediate or Supreme Court. This provision is similar to subsection 37(4)
of the MA Act.
Proposed section 34Y Applying for and making
monitoring orders
Proposed subsections 34Y(1) and (2) are based on
subsection 75(1) of the PoC Act 1987, and enable an authorised officer to seek a
monitoring order under the PoC Bill 2002, and that Part 3-4 of that Act is to
apply to both the application and any subsequent order.
Proposed
subsection 34Y(3) amends the application of certain provisions in Part 3-4 for
the purposes of a monitoring order made on request of a foreign
country.
Proposed section 34Z Passing on information given under
monitoring orders
This proposed section provides that information
gained under a monitoring order must be passed to the Attorney-General or a
specified officer of the Attorney-General's Department as soon as practicable
after the enforcement agency receives the information.
Subdivision
F – Search warrants relating to foreign serious
offences
This subdivision combines the two search warrant regimes
which existed under section 35 and subsection 37(1) of the MA Act –
namely, the regimes relating to ‘tainted property’ (proceeds and
instruments of an offence) and property-tracking documents respectively. Those
provisions reflected the two different sets of search warrant provisions in
Parts III and IV the PoC Act 1987, which are now combined in
Part 3-5 of the
PoC Bill 2002.
It also incorporates relevant parts of the PoC Act 1987
which govern how the provisions of the PoC Act 1987 apply to such applications.
Proposed section 34ZA Requests for search
warrants
Proposed subsection 34ZA(1) enables a search warrant to be
applied for by an authorised officer for the purpose of obtaining proceeds or an
instrument of an offence, or a property-tracking document in Australia which is
relevant to a proceeding or investigation relating to a serious offence in a
foreign country and os reasonably believed to be located in Australia. An order
may only be sought if the foreign country requests it, and the Attorney-General
authorises the authorised officer to so apply. This provision is based on
section 35 and subsection 37(1) of the MA Act.
Proposed subsection
34ZA(2) specifies in which State or Territory a warrant may be
sought.
Proposed section 34ZB Applying for and issuing search
warrants
Proposed subsections 34ZB(1) and (2) are based on
subsections 42(1) and 72(1) of the PoC Act 1987, and enable an authorised
officer to seek a search warrant under the PoC Bill 2002, and that Part 3-5 of
that Act is to apply to both the application and any subsequent
order.
Proposed subsection 34ZB(3) is based on paragraphs 42(1)(b) and
(c) and paragraph 72(c) of the PoC Act 1987. The proposed subsection disapplies
provisions in Part 3-5 which provide for an incidental power of seizure and
provides for the retention and return of seized property. Those provisions are
set out in sections 34W and 34X of the MA Act. Proposed subsection 34ZB(3) also
amends the application of certain other provisions in Part 3-5.
Proposed section 34ZC Seizure of other property and
documents
This proposed section authorises the incidental seizure of
other things when executing a search warrant, where it is believed that seizure
is necessary to prevent the thing’s destruction, loss or concealment, or
its use in an offence.
Specifically, the provision enables the seizure of
a thing reasonably believed to be a property-tracking document, the proceeds or
an instrument of the offence to which the warrant relates but which is not of
the kind specified in the warrant. If there is another search warrant in force
under Part 3-5 of the PoC Bill 2002 in relation to a serous offence, a thing
reasonably believed to be a property-tracking document related to that offence
and an instrument or proceeds of the offence may also be seized. In addition,
if the authorised officer finds something he or she reasonably believes to be
relevant to the criminal proceedings in respect of the foreign serious offence,
or will afford evidence in relation to an Australian offence, that thing may be
seized.
Proposed section 34ZD Return of seized property to third
parties
This proposed section provides for property (other than
property-tracking documents) that is seized under a search warrant to be
returned to a person who claims an interest in that property.
The person
must apply to the court which issued the search warrant. To order the return of
the property the court must be satisfied that the applicant is entitled to the
return of the property, that the property is be neither the proceeds nor
instrument of the relevant foreign serious offence, and that the person
suspected of committing the relevant offence has not interest in the
property.
However, if the property was seized because it may afford
evidence of an Australian offence, the person cannot apply under this proposed
section to get the property back.
This proposed section is based on
subsections 42(3), (4) and (9) of the PoC Act 1987.
Proposed section
34ZE Dealing with seized property (other than property-tracking
documents)
This proposed section provides how property seized under a
warrant issued in relation to a foreign serious offence and which is not
evidence of an Australian offence or a property-tracking document must be dealt
with.
Proposed subsection 34ZE(2) establishes the general rule that
seized property must be returned if a foreign restraining order or a foreign
forfeiture order has not been registered in an Australian court within 30 days
of the seizure, and a restraining order has not been made under PoC Bill 2002 in
relation to the foreign serious offence.
If a foreign restraining order
is registered or a restraining order made within the 30 day period, the head of
the agency whose officer seized the property must ensure that the property is
given to the OT in accordance with a direction of the court that the OT take
custody and control of the property. If the court has made no such direction,
but has ordered under proposed subsection 34ZE(6) that the head of the relevant
agency may retain the property, that person must retain the property in
accordance with the restraining order (see proposed subsection
34ZE(3)).
Where property is given to the OT under 34ZE(3), the PoC Bill
2002 applies to that property as if it were ‘controlled property’.
‘Controlled property’ is defined in the PoC Bill 2002 as property in
relation to which the OT must exercise the powers, and perform the duties,
conferred or imposed on it, in relation to property of which a court has ordered
the OT to take custody and control.
Proposed subsections 34ZE(5) and (6)
provide that where a foreign restraining order has been registered in an
Australian court or a restraining order has been made under PoC Bill 2002 in
relation to the foreign serious offence, the head of the relevant enforcement
agency may apply to the court to retain the property. The court may grant such
an order is satisfied that retention of the property is necessary for it to be
dealt with in accordance with the relevant restraining order. The order may be
for so long as the property is required to be retained.
Proposed
subsection 34ZE(7) requires the head of the relevant agency to deal with seized
property still in his or her possession when a foreign forfeiture order is
registered in Australia in accordance with the terms of that order.
The
provisions of proposed section 34ZE are based on subsections 45(5) to (8) of the
PoC Act 1987.
Proposed section 34ZF Dealing with seized
property-tracking documents
This proposed section provides that an
authorised officer may retain a property-tracking document obtained as a result
of a search warrant for a period up to one month, pending the Attorney-General
providing written directions on how to deal with the document. It is clear from
this provision that such a direction may include forwarding that document to the
foreign country which requested the search warrant.
This proposed section
is based on subsection 72(3) of the PoC Act 1987.
Division 3 –
Provisions relating to registered foreign restraining orders
This
Division enables property the subject of a registered foreign restraining order
to be put in the custody and control of the OT, in the same way that property
the subject of a domestic restraining order may be.
Proposed
section 35 Court may order Official Trustee to take custody and control
of property
This amendment enables a court to order the Official
Trustee (OT) to take custody and control of restrained property where the DPP
applies for the order, and the court considers it necessary to do so. For
example, the court may order this if there is a risk that the property would
otherwise be dealt with contrary to the restraining order; alternatively, the
property may require the OT to manage it to ensure it does not lose value.
This is similar to clause 38 of the PoC Bill 2002, and is based on
subsection 61(1) of the PoC Act 1987.
Proposed section 35A Procedural
matters
Proposed section 35A sets out that the DPP must give notice
of an application for an order for the OT to take custody and control of
restrained property to the owner of, or any other person the DPP believes has an
interest in, the property. The court may also direct the DPP to publish notice
of the application.
A person with an interest in the property has a right
to appear and adduce evidence at the hearing.
This provision is based on
subsections 61(2)-(4) of the PoC Act 1987.
Proposed section 35B
Ancillary orders
This provision enables a court to make ancillary
orders with respect to the OT having custody and control of restrained property.
Such an order may regulate the way in which the OT performs its functions or
powers, determines questions relating to the property (such as the liabilities
of the owner of the property in the custody and control of the OT) or direct a
person to do give a statement specifying the particulars of the property to the
OT.
Proposed section 35C Dealing with restrained
property
Proposed subsection 35C(1) applies Division 3 of 4-1
of the PoC Bill 2002 to property as if it were controlled property. That
division regulates dealings with or which relate to controlled
property.
Proposed subsection 35C(2) provides that before the OT
exercises a power under clause 278 of the PoC Bill 2002, the OT must consult
with the relevant foreign country. Clause 278 is a new provision, which grants
the OT power to destroy or dispose of controlled property. The OT may destroy
controlled property if it is in the public interest to do so or if it is
required for the health or safety of the public.
The proposed subsection
also grants the OT power to dispose of controlled property, by any means, if the
circumstances described in any of paragraphs 266(2)(a) to (c) of the Bill exist.
Paragraphs 266(2)(a) to (c) concern agreement between all entitled parties to
the disposal, the likelihood of the property losing value in the OT’s
opinion, and the OT’s opinion that the cost of controlling the property
until final resolution will exceed, or represent a significant proportion of,
the value of the property when it is finally dealt with.
Proposed
section 35D Money not to be paid into the Common Investment
Fund
Proposed subsection 35D provides that money that is in the
control of the OT due to a foreign restraining order must not be paid into the
Common Investment Fund under the Bankruptcy Act 1966, despite anything in
that Act. This is similar to clause 287 of the PoC Bill 2002, and is based on
subsection 61(7) of the PoC Act 1987.
Proposed section 35E
Undertakings
This provision enables an affected person to apply to
the court for the DPP to give or carry out an undertaking for damages or costs
relating to the registration, making or operation of the relevant restraining
order.
The provision reflects section 62 of the PoC Act 1987, and is
similar in effect to clause 21 of the PoC Bill 2002.
Proposed section
35F Order to discharge certain registered foreign pecuniary penalty
orders
Where a registered foreign PPO is made and there is a related
registered foreign restraining order, the court in which the PPO is registered
may order the OT to pay the Commonwealth an amount equal to the
PPO.
Proposed subsection 35F(3) enables the court to order the OT to sell
or dispose of the restrained assets to meet the order under proposed subsection
35F(1). The court may also appoint a person to execute a deed or instrument in
the name of the person who has an interest in the property. Proposed subsection
35F(4) confirms that the execution by a person appointed by the court is valid
as it the owner of the interest has themself executed the deed.
Proposed
section 35F is based on subsections 63(1)-(3) of the PoC Act 1987, and has been
amended to enable the OT to carry out the functions in respect of civil-based
PPOs and restraining orders.
Proposed section 35G Official Trustee to
carry out orders
Proposed subsection 35G provides how the OT is to
carry out an order under proposed section 35F. If the OT is given a direction
under proposed subsection 35F(1) in relation to property that is money, the OT
must as soon as practicable apply the money in payment of the costs, charges,
expenses and remuneration of the OT (as set out in clause 288 of the PoC Bill
2002) which were incurred or payable in connection with the restraining order
If the order under proposed subsection 35F(1) relates to property that
is not money, the OT must sell or otherwise dispose of that property, and as
soon as practicable apply the proceeds of sale in payment of the costs, charges,
expenses and remuneration of the OT (as set out in clause 288 of the PoC Bill
2002) which were incurred or payable in connection with the restraining order.
Those costs may include those incurred in disposing of the property.
The
OT must pay the remainder of the money or proceeds received from the sale or
disposition of property to the Confiscated Assets Account.
Proposed
subsection 35G(3) provides that if the remainder of the money and proceeds
received from the sale or disposition of property exceeds the penalty amount,
the OT must pay an amount equal to the penalty amount to the Confiscated Assets
Account, and pay the balance to the person whose property was subject to the
restraining order.
This provision is based on paragraphs 63(4)(a) and
(b), and subsection 63(5) of the PoC Act 1987. There is a similar provision in
clause 284 of the PoC Bill 2002.
Proposed section 35H Discharge of
person’s liability under foreign pecuniary penalty
order
Proposed subsection 35H provides that if the OT pays money to
the Confiscated Assets Account in satisfaction of a person’s liability
under a foreign pecuniary penalty order, the person’s liability under the
foreign pecuniary penalty order is discharged to the extent of the
payment.
The proposed section is similar to clause 286 of the PoC Bill
2002, and is based on subsection 63(6) of the PoC Act 1987.
Proposed
section 35J Creation of charge on property
Upon occurrence of the
events specified in paragraphs 35J(1)(a) to (c), proposed subsection 35J(1)
creates a charge over the property which is the subject of a registered foreign
restraining order to secure the payment of a registered foreign
PPO.
Paragraphs 35J(1)(a) to (c) require a foreign restraining order and
a foreign PPO to have been made against a person, and each of those orders to
have been registered. The foreign PPO must be made in relation to the
person’s conviction for a foreign serious offence, or a related foreign
serious offence.
The charge is created over the property upon the
registration of the foreign restraining order or the foreign PPO, whichever
occurs last. The amount is the amount that would be the penalty amount under
the PoC Bill 2002 as if the foreign PPO had actually been made under that
Act.
A charge made under this proposed section is subject to all earlier
encumbrances that would otherwise have priority.
Proposed section 35J
is based on subsections 64(1) and (3) of the PoC Act
1987.
Proposed section 35K When the charge ceases to have
effect
This proposed section provides for the cessation of the
charge. The charge ceases to have effect if the person pays out the PPO in
full, or where the registration of the foreign restraining order or PPO is
cancelled under proposed section 34G.
Sale or disposal of property by
order of the court under proposed subsection 35F(3), by the owner of the
property with the consent of the foreign court which made the original order, or
by the owner of the property with the consent of the OT, also causes the charge
to cease.
Sale of the property to a purchaser for sufficient
consideration, where the person has no notice of the charge and purchases in
good faith will also cause the charge to cease.
This provision is based
on subsection 64(2) of the PoC Act 1987.
Proposed section 35L
Registering charges
Proposed section 35L provides that where the
Commonwealth, a State or Territory have a system of registration for certain
types of property the OT or the DPP may apply for a charge created by proposed
section 35J to be registered with the relevant authority. Once registration is
effected, any person who purchases or otherwise acquires an interest in the
property is taken to have notice of the charge.
This provision is based
on subsection 64(4) of the PoC Act 1987.
Proposed section 35M When
order ceases to be in force
Proposes subsection 35M provides that
when registration of a foreign restraining order is cancelled under Subdivision
A of Division 2 of the MA Act, the order ceases to be in force. This provision
is based on section 65 of the PoC Act 1987.
Item 37 This item
repeals the reference to ‘Proceeds of Crime Act’ and replaces it
with a reference to a ‘proceeds of crime law’. A ‘proceeds of
crime law’ is defined in subsection 3(1) of the MA Act to include both the
PoC Act 1987 and the PoC Bill 2002.
SCHEDULE 3 – RETAINING FINANCIAL TRANSACTION
DOCUMENTS
This Schedule re-enacts the document retention
provisions currently in the Proceeds of Crime Act 1987 (sections 76-78B)
in the Financial Transaction Reports Act 1988, which already contains
record retention provisions.
Financial Transaction Reports Act
1988
Item 1 This item amends the definition of
‘account’ so that the definition does not apply to the document
retention provisions (which are to be located in Part VIA of the Financial
Transaction Reports Act 1988 (‘FTR Act’)). The document
retention provisions contain a different definition of
‘account’.
Item 2 This item adds a note at the end of
the definition of ‘account’ to make readers of the FTR Act aware
that the document retention provisions contain a different definition of
‘account’.
Item 3 This item notes that the term
‘customer-generated financial transaction document’ is defined
elsewhere in the Act.
Item 4 This item amends the definition of
‘financial institution’ in relation to the document retention
provisions to include financial corporations within the meaning of the
Constitution. This reflects the definition of ‘financial
institution’ currently in the PoC Act 1987.
Item 5 This
item notes that the term ‘minimum retention period’ is defined
elsewhere in the Act.
Item 6 This item inserts Part VIA into
the FTR Act. Part VIA contains the document retention provisions.
Division 1- Meaning of key terms used in the
Part
Proposed section 40C Definitions
This
provision defines ‘account’ and ‘financial transaction
document’ for the purposes of Part
VIA.
‘Account’ is defined to include a safety deposit
box and an arrangement or facility for a ‘fixed-term’ deposit.
‘Financial transaction document’ is defined broadly
to capture any document which relates to a financial transaction carried out by
the financial institution, and can include a document relating to the opening or
closing of the account, as well as documents that relate to operating the
account (for example withdrawal or deposit slips).
Proposed
section 40D Meaning of customer-generated financial transaction
document
This provision defines ‘customer-generated
financial transaction document’ for the purposes of Part VIA.
A
customer-generated financial transaction document is a document given to the
financial institution by or on of behalf a person, which relates to one of the
financial transactions specified in the definition.
Proposed section
40E Meaning of minimum retention period
This provision
defines ‘minimum retention period’ for the purposes of Part
VIA.
This is the period of time which financial institutions must retain
relevant documents under the obligations set out in Division 2. The period
varies depending on the nature of the document – for example, if the
document relates to the opening of an account, the financial institution is
obliged to keep that document for the duration of the life of that account, and
for seven years following the closure of that account. Documents relating to
the opening of a safety deposit box are required to be kept for the same period
of time. However, all other documents are only required to be kept for the
seven years following the relevant transaction, regardless of whether or not the
account is still active at the end of that seven years.
Division 2
– Retaining financial transaction documents
Proposed
section 40F Customer-generated financial transaction documents not relating to
operation of accounts
This provision obliges financial institutions
to retain the original of a customer-generated financial transaction document,
which does not relate to the operation of an account, for the minimum retention
period. For example, this may be a document relating to the opening or closing
of the account, the transmission of funds between Australia and a foreign
country by the financial institution on behalf of a person or a loan
application. However, the financial institution is not obliged to retain
cheques or payment orders.
If the financial institutions fails to retain
the document, and the failure is not attributable to the institution being
required by law to release the document before the end of the minimum retention
period, the institution is guilty of an offence punishable by fine of 100
penalty units.
Proposed section 40G Releasing original documents if
required by law
If the institution is required by law to release the
document before the end of the minimum retention period and fails to keep a
complete copy of the document until the end of the period or until the original
is returned, the institution is guilty of an offence punishable by fine of 100
penalty units.
The financial institution is also obliged to maintain a
register of original documents that it is required by law to release prior to
the end of the minimum retention period. Failure to keep such a register is an
offence punishable by fine of 100 penalty units.
Proposed section 40H
Customer-generated financial transaction documents relating to operation of
accounts
This provision obliges financial institutions to retain
either a copy or the original of a customer-generated financial transaction
document, which relates to the operation of an account, for the minimum
retention period. However, if this document is a cheque or payment order, or
relates to a single transaction not exceeding $200 (or higher amount it
specified in the regulations) the financial institution is not obliged to retain
it.
If the financial institutions fails to retain the document, it is
guilty of an offence punishable by fine of 100 penalty units.
Proposed
section 40J Retaining other financial transaction documents
This
provision obliges financial institutions to retain either a copy or the original
of a financial transaction document that is not a customer-generated financial
transaction document, where retention of the document is necessary to preserve a
record of the transactions concerned. The document must be retained for the
minimum retention period. However, if this document is a cheque or payment
order, or relates to a single transaction not exceeding $200 (or higher amount
it specified in the regulations) the financial institution is not obliged to
retain it.
If the financial institutions fails to retain the document,
it is guilty of an offence punishable by fine of 100 penalty
units.
Division 3 – Obligations relating to active ADI
accounts transferred to another ADI
Proposed section 40K
Transferor ADI must give documents to transferee ADI
This provision
applies where there are live accounts being transferred from one ADI to another.
An ‘ADI’ is an authorised deposit-taking institution, and is defined
in section 3 of the FTR Act to mean a body corporate that is an ADI for the
purposes of the Banking Act 1959, the Reserve Bank of Australia, or a
person who carries on State banking within the meaning of paragraph 51(xiii) of
the Constitution.
Proposed section 40K obliges the ADI which originally
held the account to transfer over all the documents which is it required to
retain by operation of Division 2 within a 120 day period beginning 30 days
before the account is transferred.
If the ADI intentionally fails to
give the relevant documents to the other ADI within the 120 day period, it is
guilty of an offence punishable by a fine of 10 penalty
units.
Proposed section 40L Compliant transferor ADIs
released from retention obligations
This provision releases
transferor ADIs who transferred the documents within the 120 day period from the
retention obligations in proposed sections 40F and
40J.
Proposed section 40M Retention obligations of transferee
ADIs
This provision obliges the transferee ADI to retain the
documents transferred under proposed section 40K as if the minimum retention
period applicable to the document is seven years after the closure of the
transferred account. It also obliges the transferee ADI to retain the document
as if the obligations in proposed sections 40F, 40H and 40J were in relation to
that transferee ADI.
Division 4 – Obligations relating to
closed ADI accounts transferred to another ADI
Proposed
section 40N Transferor ADI may give documents to transferee
ADI
Where an active account has been transferred from one ADI to
another, and the transferor ADI has transferred documents to a transferee ADI
pursuant to Division 3, the account with the transferor ADI will then become a
closed account.
In those circumstances, this provision allows a
transferor ADI to give the original and copies of a document that it is obliged
to retain under Division 2 and which relate to the now closed account, to the
transferee ADI.
For this to occur the two ADIs must agree in writing, and
the document must be transferred within 120 days of the original
transfer.
Proposed section 40P Compliant transferor ADIs released
from retention obligations
This provision releases transferor ADIs
who transferred documents under this Division within 120 days from the initial
transfer of documents from the retention obligations in proposed sections 40F
and 40J.
Proposed section 40Q Retention obligations of transferee
ADIs
This provision obliges the transferee ADI to retain the
documents transferred under proposed section 40K as if the minimum retention
period applicable to the document is seven years after the closure of the
transferred account. It also obliges the transferee ADI to retain the document
as if the obligations in proposed sections 40F, 40H and 40J were in relation to
that transferee ADI.
Division 5 –
Miscellaneous
Proposed section 40R Retrieving documents must
be reasonably practicable
This provision obliges financial
institutions to store documents which it is obliged to retain under this Part in
a way which makes the retrieval of those documents reasonably
practicable.
Failure to so store documents is an offence punishable by a
fine of 100 penalty units.
Proposed section 40S This Part does not
limit any other retention obligations
This provision ensures that
other retention provisions (for examples those in other parts of the FTR Act)
still apply to financial institutions which are subject to Part VIA of the
Act.
Proceeds of Crime Act 1987
Item 7 This
item repeals Division 4 of Part IV of the PoC Act 1987, which contains the
document retention provisions. The provisions governing the transition of the
document retention obligations from the PoC Act 1987 to the FTR Act are set out
in Schedule 7 of this Act.
SCHEDULE 4 – BANKRUPTCY
This
Schedule makes amendments to the Bankruptcy Act 1966, giving priority to
recovery of forfeited property or pecuniary penalty/literary proceeds amounts
due under the PoC Bill 2002 over bankruptcy proceedings.
Part 1
– Effect of proceeds of crime orders
Bankruptcy Act
1966
Item 1 This item inserts a new definition of
‘forfeiture order’, to refer to a forfeiture order made under a
proceeds of crime law. ‘Proceeds of crime law is defined in Part 2 of
Schedule 4.
Item 2 This amends the definition of ‘pecuniary
penalty order’ to include a reference to a literary proceeds order (LPO),
and to provide for PPOs made under the PoC Bill 2002.
Item 3 This
item inserts a new definition of ‘proceeds of crime order’. A
‘proceeds of crime order’ is a restraining order, forfeiture order
or PPO. All orders may be either conviction- or civil-based under the PoC Bill
2002.
Item 4 This inserts a definition of ‘restraining
order’. A restraining order is an order preventing property from being
disposed of or otherwise dealt with.
Item 5 This provision
inserts a new section at the end of Part 1A of the Bankruptcy Act, which is an
interpretative Part. Proposed section 6C provides that for the purposes of the
Bankruptcy Act property is covered by a restraining order or forfeiture order
from the time the order comes into force in relation to the property until it
ceases or the property is excluded from the order.
A restraining order
may cease for many reasons, including because property it covers is forfeited to
the Commonwealth or because there is no relevant conviction or charge (if the
conviction or charge is the basis of the restraining
order).
Sub-paragraph 6C(1)(b)(iii) refers to where there is a
restraining order in force and automatic forfeiture would occur six months after
conviction of the relevant serious offence (unless the time is
extended).
Proposed subsection 6C(2) makes it clear that a PPO ceases to
be in force once it has been satisfied.
Proposed subsection 6C(3)
establishes that for the purposes of the Bankruptcy Act an application for a
proceeds of crime order is finally determined when one of the circumstances in
paragraphs (a)-(c) occurs. Paragraph (a) states that if an application is
withdrawn, it can be taken to be finally determined. Under paragraph (b), an
application is taken to be finally determined where the application is
successful and the resulting proceeds of crime order comes into force. A
proceeds of crime order comes into force upon being made by a court, or in the
case of automatic forfeiture under Part 2-2 of the PoC Bill 2002, upon the
expiry of the relevant time since conviction of the serious offence. Upon an
order being made, or time period expiring, the property vests absolutely in the
Commonwealth (except where the property is real property, in which case it vests
in equity and must be registered to vest is law).
Item 6 This
item amends paragraph 40(1)(hd). Section 40 establishes what is an act of
bankruptcy. One of the grounds which may constitute an act of bankruptcy is if
a debt agreement (to which the debtor is a party as the debtor) is terminated,
under either section 185P or 185Q. Item 25 inserts a new section under which a
debt agreement may be terminated (proposed section 185QA), and the amendment to
paragraph 40(1)(hd) reflects this.
Item 7 This item adds a Note
at the end of subsection 58(1) of the Bankruptcy Act. The Note advises that
subsection 58(1) has limited application if there are orders in force under the
proceeds of crime law, and notes that section 58A is the appropriate section to
look to in those circumstances.
Subsection 58(1) provides that where a
debtor becomes a bankrupt, his or her property vests in the OT or a registered
trustee, and that any after-acquired property also vests in the OT or registered
trustee as soon as it is either acquired by or devolves on the bankrupt.
Item 8 This amendment removes the ability of a creditor to
enforce a remedy against a bankrupt or property of the bankrupt not vested in
the bankrupt, in respect of a liability under a PPO or interstate PPO. PPOs and
interstate PPOs are covered by the proposed amendments at Item 6.
Item
9 This item disapplies subsection 58(1) of the Bankruptcy Act where the
property of the bankrupt is covered by a restraining order or a forfeiture order
made before the bankruptcy. The amendments also disapplies subsection 58(1)
where a PPO is made prior to a bankruptcy.
The effect of the amendment is
that the property of a bankrupt does not vest in the OT or a registered trustee
at bankruptcy, and that any after-acquired property does also not vest in the OT
or registered trustee when it is acquired by or devolves on the bankrupt.
Item 10 This item amends section 82 of the Bankruptcy Act, which
sets out what debts are provable in bankruptcy. The amendment to subsection
82(3) removes the condition relating to PPOs and interstate PPOs. The effect of
this is that penalties and fines imposed by a court in respect of an offence are
not provable in bankruptcy. This item works in conjunction with item
8.
Item 11 This item amends subsection 82(3A) and provides that
whereas PPOs and interstate PPOs were previously provable in bankruptcy, they no
longer are. The effect of this is that the debt survives bankruptcy and thus is
recoverable despite the bankruptcy.
Item 12 This item sets out
when the provisions under this Schedule commence. The amendments are taken to
apply to bankruptcies where the date of bankruptcy is after the commencement of
the Schedule. In addition, the amendments apply to any deed of assignment, deed
of arrangement or composition not accepted, before the commencement of this
Schedule.
Item 13 This item creates a Subdivision A of Division 2
of Part VI of the Bankruptcy Act.
Item 14 This item inserts a
Note at the end of section 108, advising that the rules in section 108 (which
provides that proved debts are to rank equally unless otherwise provided) can be
affected by proceeds of crime orders.
Item 15 This item creates a
Subdivision B of Division 2 of Part VI of the Bankruptcy Act. The item also
inserts three proposed sections, which set out the effects of proceeds of crime
orders and applications for such orders on bankruptcy
proceedings.
Subdivision B - The effect of proceeds of crime orders
and applications for proceeds of crime orders
Proposed section
114A The effect of proceeds of crime orders
Proposed section
114A provides that where property of a bankrupt is covered by a restraining
order or forfeiture order at the same time as the bankruptcy, the proceeds of
any property covered by the relevant proceeds of crime order cannot be applied
under section 108 while such an order is in force.
This amendment
effectively excludes the property covered by a restraining order or forfeiture
order from the property able to be used to pay the debts of the bankrupt.
Proposed section 114B The effect of applications for proceeds of crime
orders
Proposed subsection 114B(1) provides that where an application
for a forfeiture or restraining order is made under a proceeds of crime law, and
the property it would cover if made is the property of a bankrupt, the proceeds
of any property that would be covered by a relevant proceeds of crime order
cannot be applied under section 108 before the application is
determined.
Proposed subsection 114B(2) provides that where an
application for a PPO is made under a proceeds of crime law, and person against
whom the order is made either is or later becomes a bankrupt, the proceeds of
any property of the bankrupt cannot be applied under section 108 before the
application is determined.
Proposed section 114C Director of Public
Prosecutions must notify the trustee of certain matters
Proposed
section 114C requires the DPP to notify the trustee of circumstances which
prevent section 108 from applying to the proceeds of the property of a bankrupt.
The DPP must also notify the trustee when the circumstances change, and section
108 is no longer prevented from applying. For example, if an application for a
restraining order is made which would cover the property of the bankrupt,
proposed section 114B would prevent section 108 from applying. However, if the
application was unsuccessful, proposed section 114B would no longer prevent
section 108 from applying. The DPP would have to notify the trustee in both
circumstances.
Item 16 this item applies new Subdivisions B to
proceeds of crime orders and applications for proceeds of crime orders made
after the commencement of this Schedule, even where the date of bankruptcy is
before that commencement.
Item 17 This item makes paragraphs
153(2)(a)-(b) apply in the alternative.
Item 18 This item works
in conjunction with item 19, which removes paragraph 153(2)(d). This item
removes the word ‘or’ currently between paragraphs 153(2)(c) and
(d).
Item 19 This item removes paragraph 153(2)(d), which states
that upon discharge from bankruptcy, the bankrupt is not released the from any
liability under a pecuniary penalty order or interstate pecuniary penalty order.
This provision is no longer necessary, as the discharged bankrupt will remain
liable for the PPO throughout and after the bankruptcy, as such orders are not
provable in bankruptcy.
Item 20 This item inserts a Note,
advising that a discharged bankrupt will remain liable under any PPO because
such liabilities are not provable in bankruptcy.
Item 21 Item 24
of this Schedule inserts a new section under which a debt agreement may be
terminated (proposed section 185QA), and the amendment to paragraph 185J(2)(a)
reflects this.
Item 22 This item inserts proposed subsection
185K(2), which inserts a liability under a proceeds of crime law as a liability
in respect of which a remedy may be enforced against the debtor or the
debtor’s property.
Item 23 Item 24 of this Schedule
inserts a new section under which a debt agreement may be terminated (proposed
section 185QA), and the amendment to subsection 185N(1) reflects
this.
Item 24 This item inserts proposed section 185QA. Proposed
section 185QA will enable a debt agreement to be terminated by the passing of a
special resolution where property of the debtor is covered by a restraining
order or a forfeiture order or a PPO made against the debtor is in
force.
However, if the property was already covered by a restraining or
forfeiture order, or a PPO was already in force against the debtor at the time
the debt agreement was made, the debt agreement cannot be terminated under this
section.
Item 25 Item 24 of this Schedule inserts a new section
under which a debt agreement may be terminated (proposed section 185QA), and the
amendment to section 185S reflects this.
Item 26 This item amends
subsection 190(5) of the Bankruptcy Act to take account of new Subdivision B of
Division 2 of Part VI of the Bankruptcy Act.
Item 27 This item
inserts a new subsection into section 237 of the Bankruptcy Act, which provides
that nothing in Division 5 of Part X (which contains special provisions
applicable to Deeds of Arrangement) empowers the court to stay proceeds of crime
proceedings.
Item 28 This item inserts a new subsection in
section 241, which provides that a composition may be terminated by the
creditors where property of the debtor is covered by a restraining order or a
forfeiture order or a PPO made against the debtor is in force.
However,
if the property was already covered by a restraining or forfeiture order, or a
PPO was already in force against the debtor at the time the composition was
made, the composition cannot be terminated under this section.
Item
29 This item inserts a new subsection into section 243 of the Bankruptcy
Act, which provides that nothing in Division 6 of Part X (which contains special
provisions applicable to compositions) empowers the court to stay proceeds of
crime proceedings.
Proceeds of Crime Act 1987
Item
30 This item repeals paragraph 50(2)(d) of the PoC Act 1987, which has the
effect of giving bankruptcy proceedings priority over PoC Act 1987
proceedings.
Item 31 This item repeals section 53 of the PoC Act
1987, which has the effect of giving bankruptcy proceedings priority over PoC
Act 1987 proceedings.
Item 32 This item repeals the reference in
paragraph 59(1)(f) of the PoC Act 1987 to section 53 of that Act, which has the
effect of giving bankruptcy proceedings priority over PoC Act 1987
proceedings.
Item 33 This item repeals paragraph 90(2)(d) of the
PoC Act 1987, which has the effect of giving bankruptcy proceedings priority
over PoC Act 1987 proceedings.
Part 2 – Other
amendments
Bankruptcy Act 1966
Item 34 This
item amends the definition of ‘confiscation order’. It repeals the
reference to the PoC Act 1987 and replaces it with a reference to the PoC Bill
2002.
Item 35 This item amends the definition of
‘corresponding law’. It repeals the reference to the PoC Act 1987
and replaces it with a reference to the PoC Bill 2002.
Item 36
This item amends the definition of ‘interstate forfeiture order’.
It repeals the reference to the PoC Act 1987 and replaces it with a reference to
the PoC Bill 2002.
Item 37 This item amends the definition of
‘interstate pecuniary penalty order’. It repeals the reference to
the PoC Act 1987 and replaces it with a reference to the PoC Bill 2002.
Item 38 This item inserts the definition of ‘proceeds of
crime law’, which is defined to include both the PoC Act 1987 and the PoC
Bill 2002, as well as a corresponding law.
Item 39 This item
amends subsection 60(4A). It repeals the reference to the PoC Act 1987 and
replaces it with a reference to a ‘proceeds of crime law’.
Item 40 This item amends sub-paragraph 154(6)(b)(i). It repeals
the reference to the PoC Act 1987 and replaces it with a reference to a
‘proceeds of crime law’.
Item 41 This item amends
subsection 189AA(2). It repeals the reference to the PoC Act 1987 and replaces
it with a reference to a ‘proceeds of crime law’.
Item
42 This item amends sub-paragraph 231A(2)(b)(i). It repeals the reference
to the PoC Act 1987 and replaces it with a reference to a ‘proceeds of
crime law’.
Item 43 This item amends sub-paragraph
237AA(2)(b)(i). It repeals the reference to the PoC Act 1987 and replaces it
with a reference to a ‘proceeds of crime law’.
Item
44 This item amends sub-paragraph 243AA(2)(b)(i). It repeals the reference
to the PoC Act 1987 and replaces it with a reference to a ‘proceeds of
crime law’.
SCHEDULE 5 – PROPERTY SETTLEMENT AND SPOUSAL
MAINTENANCE PROCEEDINGS
This Schedule amends the Family Law
Act 1975 to provide for the stay of family law property settlement and
spousal maintenance proceedings where some or all of the property of one or both
of the parties, is the subject of a forfeiture application or POC order under
the PoC Bill 2002.
Family Law Act 1975
Item 1
This item inserts the definition of DPP into the Family Law Act 1975
(‘the FL Act’). DPP means the Commonwealth Director of
Public Prosecutions.
Item 2 This item inserts the definition of
forfeiture application into the FL Act. A ‘forfeiture application’
is an application under the PoC Bill 2002 for either conviction- or civil-based
forfeiture. It does not include an application for a PPO or literary proceeds
order (LPO).
Item 3 This item defines ‘proceeds of crime
order’, which is either a restraining order or forfeiture order under the
PoC Bill 2002.
Item 4 This item defines ‘property
settlement or spousal maintenance proceedings’ to include proceedings in
relation to either the property of the parties to the marriage or either or
them, or proceedings relating to the maintenance of a party to the marriage.
Item 5 This item inserts a definition of Registry
Manager into the FL Act. This is a new position reflecting changes
to the management structure of the Family Court. Registry Managers rather than
Registrars carry out functions that are primarily administrative in
nature.
Item 6 Item 7 inserts new paragraph 79A(1)(e). This item
inserts the word ‘or’ after existing paragraph 79A(1)(d) to reflect
the inclusion of the new paragraph.
Item 7 This item inserts a
new paragraph into subsection 79A(1) of the FL Act.
The court has a
discretion under section 79A to vary or set aside section 79 orders in
prescribed circumstances. This item inserts an additional circumstance in which
a property settlement order may be set aside by the court – where a
proceeds of crime order has been made covering property of the parties to the
marriage or either of them or that such an order has been made against one of
the parties to the marriage.
This amendment ensures that where an
earlier family law settlement is set aside by a proceeds of crime order the
parties are able to have the property re-distributed.
Item 8 This
item inserts three new sections into the FL Act after existing section 79A. The
proposed sections apply where a proceeds of crime order or forfeiture
application affects an application for an order or proceedings under Part VIII
of the FL Act – there are similar provisions under Item 9 in relation to
proceedings under Part VIIIA of the FL Act.
Proposed section 79B
Notification of proceeds of crime orders etc
This provision imposes
an obligation on the parties to a marriage who are instituting property
settlement or spousal maintenance proceedings under Part VIII of the FL Act to
disclose in the application the existence of a relevant forfeiture application
or proceeds of crime order.
The obligation to disclose is on-going. If
there are no relevant proceeds of crime proceedings on foot at the time that the
relevant family law proceedings are commenced, or the parties are not aware of
any proceedings, but are later notified by the DPP that such proceedings have
been commenced, the person notified by the DPP must notify the Registry Manager
in writing.
Failure to make the disclosure at either time is an offence,
punishable by a fine of 50 penalty units.
The effect of this disclosure
is to stay the property or spousal maintenance proceedings until the relevant
proceeds of crime proceedings are finalised. This ensures that property which
may be forfeited under the PoC Bill 2002 is not dealt with by a court in
property settlement or spousal maintenance proceedings.
Proposed
section 79C Court to stay property or spousal maintenance proceedings affected
by proceeds of crime orders etc.
This proposed section provides that
property settlement or spousal maintenance proceedings are stayed either on
notification by either party pursuant to proposed section 79B or on the
application of the DPP.
Proposed section 79D Lifting a
stay
A stay may be lifted either wholly or in part by the court that
ordered the stay if either party to the proceedings makes an application and the
DPP consents. It may be appropriate to lift the stay where only a small portion
of the property of the marriage is affected by the proceeds of crime proceedings
and the parties wish to continue with the family law action.
It is
appropriate for the consent of the DPP to be needed for a stay to be lifted, as
the DPP is best placed to know whether proceeds of crime proceedings are
finalised or whether there will be some further claim on the property.
Item 9 This item inserts three new sections into the FL Act at
the end of Part VIIIA. The proposed sections apply to proceedings under Part
VIIIA of the FL Act – there are similar provisions under Item 8 in
relation to where an application is made under Part VIII of the FL Act.
Proposed section 90M Notification of proceeds of crime orders
etc
This provision imposes an obligation on the parties to
proceedings under Part VIIIA of the FL Act to disclose in the application the
existence of a relevant forfeiture application or proceeds of crime order.
The obligation to disclose is on-going. If there are no relevant
proceeds of crime proceedings on foot at the time that the relevant family law
proceedings are commenced, or the parties are not aware of any proceedings, but
are later notified by the DPP that such proceedings have been commenced, the
person notified by the DPP must notify the Registry Manager in
writing.
Failure to make the disclosure at either time is an offence,
punishable by a fine of 50 penalty units.
The effect of this disclosure
is to stay the property or spousal maintenance proceedings until the relevant
proceeds of crime proceedings are finalised. This ensures that property which
may be forfeited under the PoC Bill 2002 is not dealt with by a court in
property settlement or spousal maintenance proceedings.
Proposed
section 90N Court to stay property or spousal maintenance proceedings affected
by proceeds of crime orders etc.
This proposed section provides that
property settlement or spousal maintenance proceedings are stayed either on
notification by either party pursuant to proposed section 79B or on the
application of the DPP.
Proposed section 90P Lifting a
stay
A stay may be lifted either wholly or in part by the relevant
court if either party to the proceedings makes an application and the DPP
consents. It may be appropriate to lift the stay where only a small portion of
the property of the marriage is affected by the proceeds of crime proceedings
and the parties wish to continue with the family law action. If that property
is not taken into account by the family law court (or other court exercising
jurisdiction under the FL Act) and is not forfeited, the parties may apply under
section 79A (as amended by Item 7) to have that property distributed.
It
is appropriate for the consent of the DPP to be needed for a stay to be lifted,
as the DPP is best placed to know whether proceeds of crime proceedings are
finalised or whether there will be some further claim on the property.
Family Law Legislation Amendment (Superannuation) Act
2001
Item 9 This item will come into effect after the
Family Law Legislation Amendment (Superannuation) Act 2001 commences. It
will amend subsection 5(3) of that Act, which is the application provision, and
apply the superannuation amendments to paragraph 79A(1)(e).
SCHEDULE 6 – OTHER
AMENDMENTS
Administrative Decisions (Judicial Review) At
1977
Item 1 This amendment affects the Administrative
Decisions (Judicial Review) Act 1977 so that it does not apply to the
decisions of the DPP or an approved examiner under Part 3-1 of the PoC Bill
2002.
Australian Federal Police Act 1979
Item 2
This item amend the AFP Act to specifically include the functions conferred by
the PoC Bill 2002 in the listed functions of the Australian Federal
Police.
Crimes Act 1914
Item 3 Sub-paragraph
3(2)(a)(ii) provides that a reference to a fine in the Crimes Act includes a
reference to a pecuniary penalty other than a pecuniary penalty imposed under
the PoC Act 1987. This amendment amends that reference to include a literary
proceeds order or PPO under the PoC Bill 2002.
Item 4 This item
amends section 3E of the Crimes Act, which sets out when a search warrant can be
issued under that Act. The amendment enables an issuing officer to state in a
warrant relating to a premises that the warrant authorises ‘tainted
property’ and ‘evidential material’ found at the premises to
be seized incidentally when a Crimes Act search warrant is
executed.
‘Tainted property’ is defined in the PoC Bill 2002,
and means the proceeds and instruments of crime. ‘Evidential
material’ for the purpose of this amendment is as defined in the PoC Bill
2002, and encompasses evidence relating to property in respect of which action
has been or could be taken under that Bill, benefits derived from the commission
of an indictable offence and literary proceeds.
Things believed to be evidential material or tainted property may
only be seized where it is believed seizure of the things is necessary to
prevent their concealment, loss or destruction or their use in committing an
offence.
Item 5 This item amends section 3E of the Crimes Act,
which sets out when a search warrant can be issued under that Act. The
amendment enables an issuing officer to state in a warrant relating to a person
that the warrant authorises ‘tainted property’ and ‘evidential
material’ found in the course of the search, on or in the possession of
the person or in a recently used conveyance to be seized incidentally when a
Crimes Act search warrant is executed.
Things believed to be evidential
material or tainted property may only be seized where it is believed seizure of
the things is necessary to prevent their concealment, loss or destruction or
their use in committing an offence.
Item 6 This item amends
section 3F of the Crimes Act, which sets out the things that are authorised by a
search warrant issued under that Act. The amendment will expand the type
of evidential material that is authorised by the warrant to be incidentally
seized when a Crimes Act search warrant is executed in respect of a premises.
The amendment will enable tainted property and evidential material within the
meaning of the PoC Bill 2002 to be seized.
Things believed to be
evidential material or tainted property may only be seized where it is believed
seizure of the things is necessary to prevent their concealment, loss or
destruction or their use in committing an offence.
Item 7 This
item amends section 3F of the Crimes Act, which sets out the things that are
authorised by a search warrant issued under that Act. The amendment will
expand the type of evidential material that is authorised by the warrant to be
incidentally seized when a Crimes Act search warrant is executed in respect of a
person. The amendment will enable tainted property and evidential material
within the meaning of the PoC Bill 2002 to be seized.
Things
believed to be evidential material or tainted property may only be seized where
it is believed seizure of the things is necessary to prevent their concealment,
loss or destruction or their use in committing an offence.
Item 8
Section 9A of the Crimes Act requires the OT to sell or dispose of condemned
articles, and apply the proceeds of the sale to payment of its remuneration and
costs, and to then pay the remainder to the Confiscated Assets Reserve
(‘the CAR’) as required by section 34B of the Proceeds of Crime
Act 1987. This item amends the reference the CAR and PoC Act 1987 to the
Confiscation Assets Account and the PoC Bill 2002.
Item 9 Section 9B of the Crimes Act provides that the regulations to
that Act may make provision in relation to the remuneration, costs etc incurred
by the OT in performing its duties under section 9A of that Act. Where there
are no relevant Crimes Act regulations, the regulations pursuant to section 55
of the PoC Act 1987 (which set out the costs etc. payable to the OT) apply.
This item replaces the reference to section 55 with the equivalent provision in
the PoC Bill 2002 (section 277).
Item 10 This item amends the
definition of ‘confiscation proceedings’ in subsection 21E(4) of the
Crimes Act. It retains the existing definition, and includes references to
relevant orders under the PoC Bill 2002.
Item 11 This item
inserts a definition of ‘narcotic substance’ in subsection 22(7) of
the Crimes Act, as the definition of ‘serious narcotics offence’ (to
which this definition relates) is now contained in that provision.
Item 12 This item inserts a definition of
‘possession’ in subsection 22(7) of the Crimes Act, as the
definition of ‘serious narcotics offence’ (to which this definition
relates) is now contained in that provision.
Item 13 This item
inserts a definition of ‘production’ in the subsection 22(7) of the
Crimes Act, as the definition of ‘serious narcotics offence’ (to
which this definition relates) is now contained in that provision.
Item 14 This item replaces the definition of
‘serious narcotics offence’ in subsection 22(7) of the Crimes Act
with the definition contained in section 7 of the PoC Act 1987. The previous
definition referred to section 7 of the PoC Act 1987. As that Act will be
repealed in the future it is more appropriate for the definition to be contained
in the Crimes Act.
Item 15 This item inserts a definition of
‘trafficable quantity’ in subsection 22(7) of the Crimes Act, as the
definition of ‘serious narcotics offence’ (to which this definition
relates) is now contained in that provision.
Item 16 Subsection
22A(2) of the Crimes Act defines ‘serious narcotics offence’ by
reference to section 7 of the PoC Act 1987. As a consequence of putting that
amendment in the Crimes Act, this subsection has been amended to refer to
section 22 (of the Crimes Act).
Customs Act 1901
Item
17 This item amends section 198 of the Customs Act, which sets out when a
search warrant can be issued under that Act. The amendment enables a judicial
officer to state in a warrant relating to a premises that the warrant authorises
‘tainted property’ and ‘evidential material’ found on or
in the premises to be seized incidentally when a Customs Act search warrant is
executed.
‘Tainted property’ is defined in the PoC Bill 2002,
and means the proceeds and instruments of crime. ‘Evidential
material’ for the purpose of this amendment is as defined in the PoC Bill
2002, and encompasses evidence relating to property in respect of which action
has been or could be taken under that Bill, benefits derived from the commission
of an indictable offence and literary proceeds.
Things believed to be evidential material or tainted property may
only be seized where it is believed seizure of the things is necessary to
prevent their concealment, loss or destruction or their use in committing an
offence.
Item 18 This item amends section 199 of the Customs Act,
which sets out the things that are authorised by a search warrant issued under
that Act. The amendment will expand the type of evidential material that
is authorised by the warrant to be incidentally seized when a Customs Act search
warrant is executed in respect of a premises. The amendment will enable tainted
property and evidential material within the meaning of the PoC Bill 2002 to be
seized.
Things believed to be evidential material or tainted property
may only be seized where it is believed seizure of the things is necessary to
prevent their concealment, loss or destruction or their use in committing an
offence.
Item 19 This item amends section 208DA of the Customs
Act, which provides for the disposal of narcotic-related goods other than
narcotic goods seized under that Act. Where the relevant goods are money,
paragraph 208DA(3)(a) requires the OT to pay it into the Confiscated Assets
Reserve (‘the CAR’) as required by section 34B of the Proceeds of
Crime Act 1987. This item amends the reference the CAR and PoC Act 1987 to
the Confiscation Assets Account and the PoC Bill 2002.
Item 20
This item amends section 208DA of the Customs Act, which provides for
the disposal of narcotic-related goods other than narcotic goods seized under
that Act. Where the relevant goods are not money, they are to be sold or
otherwise disposed of by the OT, who is to apply the proceeds of the sale to
payment of its remuneration and costs, and to then pay the remainder to the
Confiscated Assets Reserve (‘the CAR’) as required by section 34B of
the Proceeds of Crime Act 1987. This item amends the reference the CAR
and PoC Act 1987 to the Confiscation Assets Account and the PoC Bill
2002.
Item 21 This item amends sub-paragraph 219A(2)(c)(iii) of
the Customs Act, which refers to a proceeding by way of an application for an
order or a warrant under the PoC Act 1987, to also refer to such a proceeding
under the PoC Bill 2002.
Item 22 This item amends section 243G
of the Customs Act, which provides for the Official Trustee to discharge
a pecuniary penalty order made under that Act. Where the persons assets have
been restrained and those assets are money, the OT is required to apply the
money to payment of its remuneration and costs and to pay the remainder into the
Confiscated Assets Reserve (‘the CAR’) as required by section 34B of
the Proceeds of Crime Act 1987. This item amends the reference the CAR
and PoC Act 1987 to the Confiscation Assets Account and the PoC Bill
2002.
Item 23 This item amends section 243G of the Customs
Act, which provides for the Official Trustee to discharge a pecuniary
penalty order made under that Act. Where the persons assets have been
restrained and those assets are not money, the OT is required to sell or
otherwise dispose of the assets, and apply the proceeds of the sale to payment
of its remuneration and costs, and pay the remainder into the Confiscated Assets
Reserve (‘the CAR’) as required by section 34B of the Proceeds of
Crime Act 1987. This item amends the reference the CAR and PoC Act 1987 to
the Confiscation Assets Account and the PoC Bill 2002.
Item 24
This item amends subsection 243G(7) of the Customs Act, which provides that
where the restrained assets (or proceeds of the sale of the liquidated assets)
exceed the amount of the PPO, the OT must pay the PPO amount into the
Confiscated Assets Reserve (‘the CAR’) as required by section 34B of
the Proceeds of Crime Act 1987, and pay the rest to the person whose
property was restrained. This item amends the reference the CAR and PoC Act
1987 to the Confiscation Assets Account and the PoC Bill 2002.
Item
25 This item amends subsection 243G(8) of the Customs Act, which provides
that where the OT pays money to the CAR as required by section 34B of the
Proceeds of Crime Act 1987 in satisfaction of the person’s
liability under the PPO, that liability is discharged. This item amends the
reference the CAR and PoC Act 1987 to the Confiscation Assets Account and the
PoC Bill 2002.
Item 26 This item amends section 243P of the
Customs Act, which provides that the regulations to that Act may make provision
in relation to the remuneration, costs etc incurred by the OT in performing its
duties under Division 3 of Part XIII of that Act. Where there are no relevant
Customs Act regulations, the regulations pursuant to section 55 of the PoC Act
1987 (which set out the costs etc. payable to the OT) apply. This item replaces
the reference to section 55 with the equivalent provision in the PoC Bill 2002
(section 277).
Director of Public Prosecutions Act
1983
Item 27 This item gives the DPP a specific function to
institute and carry on proceedings (or co-ordinate or supervise proceedings)
under the PoC Bill 2002.
Item 28 This item amends paragraph
6(1)(n) to include a reference to the additional function of the
DPP.
Item 29 This item amends the definition of ‘specified
proceedings’ in subsection 9(6A) of the DPP Act to include a
reference to the PoC Bill 2002.
Item 30 This item enables a court
to make an order restricting the publication of matters referred to in an
affidavit to the court which was made in connection with an application for a
restraining order where such an order is necessary to prevent prejudice to the
administration of justice. Those matters may include the suspicions held by an
authorised officer about the nature of the property seeking to be restrained, or
that a person engaged in particular criminal conduct.
Item 31
This item inserts a reference to new subsection 16A(1AB).
Foreign
Evidence Act 1994
Item 32 This item amends the definition of
‘related civil proceeding’ (which currently refers to the PoC Act
1987) to include a reference to the PoC Bill 2002.
National Crime
Authority Act 1984
These amendments clarify the ability of the
National Crime Authority (NCA)to assemble evidence that would be admissible in
confiscation proceedings and provide it to authorities that are responsible for
conducting such proceedings.
Item 33 This item inserts a
definition of ‘confiscation proceedings’ in the NCA Act. The term
is defined to include all proceedings under the PoC Act 1987, the PoC Bill 2002
and corresponding states and territory laws, but does not include proceedings
for a criminal prosecution.
Items 34 to 36 These items amend the
definition of “relevant offence” in the NCA Act to include offences
that are defined as “serious offences” under the PoC Bill 2002. The
effect of this amendment is to confer jurisdiction on the NCA to investigate
such offences. However, the NCA will only be able to exercise its compulsory
information gathering powers in relation to the investigation of such offences
where a special reference has been issued to it by the Commonwealth or a State
or Territory.
Item 37 This item clarifies the ability of the NCA
to assemble evidence that would be admissible in confiscation proceedings and
give it to the Commonwealth or a relevant State Attorney-General, or a relevant
law enforcement agency, or any person or authority who is authorised to commence
confiscation proceedings.
Item 38 This item clarifies that
information obtained pursuant to the NCA’s compulsory information
gathering powers will not be inadmissible in confiscation
proceedings.
Item 39 This item requires the NCA to include in its
Annual Report information about the extent to which its investigations have
resulted in confiscation proceedings.
National Environment Protection
Measures (Implementation) Act 1998
Item 40 This amendment
amends the reference to the PoC Act 1987 to include the PoC Bill
2002.
Item 41 This amendment amends the reference to the PoC Act
1987 to include the PoC Bill 2002.
Sea Installations Act
1987
Item 42 This amends the Schedule to the Sea
Installations Act 1987, which contains a reference to the PoC Act 1987, to
include a reference to the PoC Bill 2002.
Service and Execution of
Process Act 1992
Item 43 This item amends the definition of
‘proceeds of crime legislation’ to include a reference to the PoC
Bill 2002.
Taxation Administration Act 1953
Item 44
This item replaces the reference to the Proceeds of Crime Act 1987 with a
reference to the new Act. Section 331 establishes the definition of
“convicted of an offence.”
This definition remains
unchanged from section 5 of the Proceeds of Crime Act 1987. A person is taken
to be convicted of an offence if the person is convicted, whether summarily or
on indictment, of the offence; or the person is charged with, and found guilty
of, the offence but is discharged without conviction; or a court, with the
consent of the person, takes the offence, of which the person has not been
guilty, into account in passing sentence on the person for another offence; or
the person absconds in connection with the offence. This item does not apply to
a foreign serious offence.
Item 45 This item expands the
definition of “proceeds of crime order” for the purposes of section
3E(1)(b) of the Taxation Administration Act. Section 3E(1)(b) gives the
Commissioner of Taxation a discretion to disclose information acquired under a
taxation law to an authorised law enforcement agency. The Commissioner must be
satisfied that the information is relevant to the making, or proposed or
possible making, of a proceeds of crime order.
This new definition of
“proceeds of crime order” gives the Commissioner a further
discretion to disclose information for the purposes of the Commonwealth’s
civil forfeiture regime established by Chapter 2 of the PoC Bill 2002.
Four types of orders may be made under Chapter 2 of the PoC Bill 2002:
restraining orders, forfeiture orders, pecuniary penalty orders and literary
proceeds orders. Division 1 of Part 3-1 of the bill covers examination orders
which form part of the information-gathering scheme established by Chapter 3 of
the Bill.
This definition also includes an order relating to the
commission of a serious offence under relevant provisions of State and Territory
proceeds of crime legislation and Division 3 of Part XIII of the Customs Act
1901.
Telecommunications (Interception) Act
1979
Item 46 This item establishes that a reference in the
Telecommunications (Interception) Act 1979 (‘TI Act) to a
proceeding for the confiscation or forfeiture of property, or for the imposition
of a pecuniary penalty, in connection with the commission of a prescribed
offence, includes a proceeding by way of an application for a restraining order
(or an order that is ancillary to a restraining order) under section 17 of the
PoC Bill 2002. Section 17 enables a restraining order to be made on the basis
that a person has been or is about to be charged with an indictable offence or
convicted of such an offence.
The effect of this item is that the
reference is limited to conviction-based restraining orders. As a result,
agencies will be permitted to employ intercepted information only in connection
with proceedings for an indictable offence and not in connection with the
civil-based forfeiture regime (in which a criminal conviction is not a
precondition and in which a lower civil standard of proof is employed.)
Item 47 This item expands the definition of
“relevant proceeding” for the purposes of section 67 of the TI Act.
Section 67 provides that officers of an agency may only communicate or make a
record of telecommunications interception information for a permitted purpose.
Section 5(1) defines “permitted purpose” to include “a purpose
connected with...(a)...(iii) a relevant proceeding in relation to the agency or
eligible authority.”
This item facilitates the sharing of relevant
intercepted information amongst law enforcement agencies. It enables the
National Crime Authority (NCA) to directly communicate TI information to the
Commonwealth DPP (and State equivalents) in support of proceeds of crime
proceedings connected with a prescribed offence. Previously the definition of
“relevant proceeding” in relation to the NCA was limited to a
proceeding by way of a prosecution for a prescribed offence. This did not
reflect the range of purposes, as contained in section 6L(b) of the TI Act, for
which the AFP and State Police Services were permitted to use intercepted
information.
Trade Marks Act 1995
Item 48 This item
amends the definition of ‘forfeiture order provisions’ to include
Parts 2-2 and 2-3 of the PoC Bill 2002.
Witness Protection
Act 1994
Item 49 This item amends subsection 23(2) of the
Witness Protection Act to include Parts 2-2 and 2-3 of the PoC Bill 2002.
SCHEDULE 7 – TRANSITIONAL AND RELATED
MATTERS
These provisions will facilitate the transition from
the Proceeds of Crime Act 1987 to the PoC Bill 2002.
Part 1
– Application of the Proceeds of Crime Act 1987
Proceeds of
Crime Act 1987
Item 1 This item inserts a definition of
‘commencement of the Proceeds of crime Act 2002’ into the PoC Act
1987.
Item 2 This item repeals subsection 14(2), which sets out
when the DPP can apply for a confiscation order under the PoC Act 1987. That
provision is contained in proposed paragraph 14(2)(a). Proposed paragraph
14(2)(b) prohibits the DPP from making an application for a confiscation order
after the commencement of the PoC Bill 2002 unless there is already a relevant
restraining order in force under the PoC Act 1987. This ensures that no new
proceedings are taken under the PoC Act 1987 once the PoC Bill 2002 has
commenced.
Item 3 This item amends section 22 of the PoC Act 1987
to provide that where a conviction is quashed after the commencement of the PoC
Bill 2002, the effect of that quashing on a proceeds of crime order is to be
dealt with under the PoC Bill 2002, not the PoC Act 1987.
Item 4
Section 30 of the PoC Act 1987 provides for the automatic forfeiture of
restrained property upon a person’s conviction of a serious offence. This
item amends section 30 to provide that it only applies where the conviction
occurs prior to the commencement of the PoC Bill 2002.
Item 5
This item amends section 32 of the PoC Act 1987 to provide that where a
conviction for a serious offence is quashed after the commencement of the PoC
Bill 2002, the effect of that quashing on the forfeiture of that person’s
property is to be dealt with under the PoC Bill 2002, not the PoC Act
1987.
Item 6 Section 35 enables a police officer to search for
and seize tainted property. This item amends that section to provide that a
police officer cannot do anything under that section after the commencement of
the PoC Bill 2002, unless it is done under a warrant which was issued under the
PoC Act 1987 before the PoC Bill 2002 commenced.
Item 7 Section
43 of the PoC Act 1987 enables a DPP to apply for a restraining order. This
item amends section 43 to prohibit the DPP from applying for a restraining order
under that section once the PoC Bill 2002 has commenced. This ensures that all
new actions are commenced under the PoC Bill 2002.
Item 8
Paragraph 57(2)(d) sets out that a restraining order ceases to be in force upon
acquittal if the person the subject of the order is acquitted of the charge on
which the order was based, and is not charged with a related indictable offence
by the time of the acquittal. This item amends that subsection to provide that
if the PoC Bill 2002 is in force at the time of the acquittal, the restraining
order does not cease until 28 days after the acquittal. This reflects the
cessation provisions in the PoC Bill 2002, and that civil-based forfeiture
proceedings are able to be taken in respect of a person who was acquitted of an
offence.
Item 9 Section 66 enables production orders to be
applied for and made. This item amends the section to prohibit a police officer
to apply for a production order under section 66 after the PoC Bill 2002 has
commenced. The PoC Bill 2002 contains its own production order
regime.
Item 10 Section 70 enables a police officer to search for
and seize property-tracking documents. This item amends that section to provide
that a police officer cannot do anything under that section after the
commencement of the PoC Bill 2002, unless it is done under a warrant which was
issued under the PoC Act 1987 before the PoC Bill 2002 commenced.
Item
11 Section 73 enables monitoring orders to be applied for and made. This
item amends the section to prohibit a police officer to apply for a monitoring
order under section 73 after the PoC Bill 2002 has commenced. The PoC Bill 2002
contains its own production order regime.
Item 12 Section 86
provides for the registration of interstate restraining orders under the PoC Act
1987. This item prohibits those orders being registered under the PoC Act 1987
if the PoC Bill 2002 has commended.
Item 13 Section 86 provides
for the registration of interstate forfeiture orders under the PoC Act 1987.
This item prohibits those orders being registered under the PoC Act 1987 if the
PoC Bill 2002 has commended.
Item 14 This item makes it clear
that the transitional amendments in Part 1 of Schedule 7 do not affect
applications or orders made ,or warrants or search warrants issued, under the
PoC Act 1987 made before the commencement of the PoC Bill 2002.
Item
15 This item makes it clear that property, documents or evidence seized or
otherwise obtained pursuant to the operation of the PoC Act 1987 can be used
under the PoC Bill 2002.
Item 16 This item makes it clear that
the document retention obligations of financial institutions continue in force,
despite the move of the provisions from the PoC Act 1987 to the FTR
Act.
Part 2 – Application of the Proceeds of Crime
Act 2002
Item 17 This item provides that references to the
commencement of the PoC Act 2002 in Part 2 of Schedule 7 are references to the
commencement of sections 3 to 332 of that Act, which will commence later than
sections 1 and 2.
Item 18 This item makes it clear that an order
under the PoC Bill 2002 can relate to an offence which was committed prior to
the Bill commencing. However, property cannot be automatically forfeited under
Part 2-3 if the relevant conviction occurred prior to commencement.
Item 19 This item prohibits the DPP from applying for a
restraining order under the PoC Bill 2002 if there is an application for a
restraining order on foot under the PoC Act 1987.
This item also
prohibits the DPP from applying for a restraining order under section 17 of the
PoC Bill 2002 (a ‘conviction-based’ restraining order) if an
application for that type of order has been refused under the PoC Act 1987.
However, the DPP is not prevented from applying for another type of restraining
order under the PoC Bill 2002.
Item 20 This item prohibits the
DPP from applying for a forfeiture order under the PoC Bill 2002 if there is an
application for a forfeiture order on foot under the PoC Act 1987.
This
item also prohibits the DPP from applying for a forfeiture order under section
46 of the PoC Bill 2002 (a ‘conviction-based’ forfeiture order) if
an application for that type of order has been refused under the PoC Act 1987.
However, the DPP is not prevented from applying for another type of forfeiture
order (ie a civil-forfeiture order) under the PoC Bill 2002.
Item 21
Where a forfeiture order has been made under the PoC Act 1987 (whether
before or after the commencement of the PoC Bill 2002) and the conviction on
which that order is based is quashed, and that occurs after the commencement of
the PoC Bill 2002, Division 6 of Part 2-2 of the PoC Bill 2002
applies.
Where a persons property was automatically forfeited under the
PoC Act 1987 as a result of his or her conviction of a serious offence (whether
before or after the commencement of the PoC Bill 2002) and the conviction on
which that order is based is quashed, and that occurs after the commencement of
the PoC Bill 2002, Division 4 of Part 2-3 of the PoC Bill 2002
applies.
Item 22 This item prohibits the DPP from apply for a PPO
under the PoC Bill 2002 if an application for a PPO has been made under the PoC
Act 1987, and that application is still pending.
This item also
prohibits the DPP from applying for a PPO under section 111 of the PoC Bill 2002
if the application is based on the person’s conviction of an offence, an
application for that type of order has been refused under the PoC Act 1987.
However, the DPP is not prevented from applying for a PPO under Part 2-3 of the
PoC Bill 2002 in respect of that offence.
Item 23 Where a PPO
has been made under the PoC Act 1987 (whether before or after the commencement
of the PoC Bill 2002) and the conviction on which that order is based is
quashed, and that occurs after the commencement of the PoC Bill 2002, Division 5
of Part 2-4 of the PoC Bill 2002 applies.
Item 24 Where an
interstate restraining order has been registered under Part 4-5 of the PoC Act
1987, Division 1 of Part 4-5 of PoC Bill 2002 does not apply to that
order.
Item 25 Where an interstate forfeiture order has been
registered under Part 4-5 of the PoC Act 1987, Division 2 of Part 4-5 of PoC
Bill 2002 does not apply to that order.
Item 26 This item enables regulations which are already in force under the PoC Act 1987 to continue in force as if they were made under the PoC Bill 2002 until regulations are made under the Bill. The item sets out the regulations which are in the PoC Act 1987 and the corresponding provisions in the PoC Bill 2002.