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2002
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PROCEEDS OF CRIME BILL 2002
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice and Customs
Senator the Honourable Chris Ellison)
Proceeds of Crime Bill 2002
General Outline
The purpose of the Proceeds of Crime Bill is to
prevent criminals from being able to enjoy the fruits of their crimes, by
depriving them of the proceeds and benefits gained from criminal conduct, and to
prevent the re-investment of those proceeds and benefits in further criminal
activities. The Bill also enables the freezing and confiscation of property
used in, intended to be used in or derived from terrorism offences. It
implements Australia’s obligations under the International Convention for
the Suppression of the Financing of Terrorism and resolutions of the United
Nations Security Council relevant to the seizure of terrorism related
property.
Strong and effective action to confiscate proceeds of crime assists in attacking the profit-motive of organised crime, including illicit activities involving drug trafficking, people smuggling, money laundering and large-scale fraud.
The Bill proposes a civil forfeiture regime, that is, a regime directed to confiscating unlawfully acquired property, without first requiring a conviction. That new regime will operate in addition to the conviction-based confiscation regime.
The procedures for civil forfeiture will enable confiscation by a simpler civil process, where a court decides whether it is more probable than not that a person committed a serious offence and that property has been derived from that conduct, without first needing a criminal prosecution leading to a conviction before that property that can be confiscated. A person will have the opportunity to prove to the court that his or her assets were lawfully derived; if such proof can be provided, those assets will not be forfeited. The civil forfeiture regime will operate in parallel with the existing conviction-based regime.
The Bill also strengthens the provisions relating to the existing conviction-based scheme. Those provisions are based on the Proceeds of Crime Act 1987 which will remain in effect so that matters being dealt with under that Act may continue.
The Bill introduces provisions for the forfeiture of literary proceeds, which are benefits a person derives from the commercial exploitation of their notoriety from committing a criminal offence. The expression “literary proceeds” is intended to include “cheque-book journalism” related to criminal activity. In general those proceeds tend to fall outside the scope of recoverable proceeds of crime as they are often not generated until after the person has been convicted (and achieved notoriety). The Bill sets out provisions for the confiscation of proceeds derived from the exploitation of criminal notoriety by means of a type of pecuniary penalty order against the person.
The Proceeds of Crime Bill has a number of objects intended to enhance the effectiveness of criminal laws of the Commonwealth and external Territories. They are
(a) depriving persons of the fruits of offences;
(b) depriving persons
of literary proceeds gained from exploiting their criminal
notoriety;
(c) punishing and deterring breaches of laws;
(d) preventing
the re-investment of the fruits of offences in further criminal activities;
(e) enabling law enforcement authorities to trace the fruits of
offences;
(f) giving effect to Australia’s obligations under the
Council of Europe Money-Laundering Convention and other international
instruments that deal with confiscating proceeds of crime;
(g) in respect of
offences against the laws of the States, the NT and the ACT, provide for the
effective enforcement of confiscation and restraining in the external
Territories.
The Bill replicates the safeguards for innocent third parties, dependents and people with an interest in property which exist in the current legislation. It also provides ample opportunity for suspects to demonstrate the lawful derivation of their property both at the freezing and confiscation stages. It represents a balanced and fair approach to ensuring that crime particularly financing terrorist activity does not pay.
Financial Impact
It is not possible to estimate the cost of bringing confiscation proceedings, or of preserving and realising property that is the subject of orders under the Bill. However, it is expected that the revenue generated from the confiscation of property will more than offset the investigative and legal costs in bringing proceedings and administering property.
The amendments are expected to have a significant but unquantifiable financial impact on Government revenue.
ACT Australian Capital Territory
AFP Australian Federal Police
AFP Act Australian Federal Police Act 1979
ACS Australian Customs Service
ALRC Australian Law Reform Commission
ASIC Australian Securities and Investments Commission
CAA Confiscated Assets Account
CRF Consolidated Revenue Fund
DPP Director of Public Prosecutions (Commonwealth)
FTRA Financial Transaction Reports Act 1988
IFO interstate forfeiture order
IRO interstate restraining order
LAC legal aid commission
LPO literary proceeds order
MAA Mutual Assistance in Criminal Matters Act 1987
NCA National Crime Authority
NT Northern Territory
OT Official Trustee
PPO pecuniary penalty order
PoC Act Proceeds of Crime Act 1987
PART 1-1 PRELIMINARY
This is a formal clause which provides for the citation of the Bill.
Clauses 1 and 2 commence on the day on which the Bill receives Royal Assent.
Clauses 3 to 338 commence on a day specified in a proclamation as the day on
which they are to commence. If a provision is not proclaimed to commence within
six months of the date of receiving Royal Assent, it commences on the day
following the period ending six months after receiving Assent.
This clause explains that the definition of many of the terms used in the
Act appears in the Dictionary. The Dictionary is a definitional or
interpretative part of the Act and is located in Chapter 6.
Many of the
terms used in the Act are marked with an asterisk. This denotes that the terms
are defined in the Dictionary. Defined terms are generally marked with an
asterisk only at the start of the relevant clause or subclause . However, the
lack of an asterisk does not mean that a relevant definition does not
apply.
Defined terms are not asterisked in parts of the Act other than
the clauses – for example, they are not asterisked in the headings, notes
or examples.
Subclause 3(6) sets out terms which are used throughout
the Act and have a particular meaning under the Act, but are not marked with an
asterisk.
Clause 4 Application of the Criminal
Code
This clause applies Chapter 2 of the Criminal Code,
which sets out the principles of criminal responsibility, to the offences in
the Act.
This clause sets out the seven major objects of the Act.
They
include preventing persons who commit offences against the Commonwealth and
non-governing Territories from enjoying the proceeds of those offences and
preventing the re-investment of the proceeds of a crime in further criminal
activities. The Act also aims to enable law enforcement authorities to
effectively trace and recover the proceeds and instruments of offences, as well
as identify the benefits obtained by criminals from their offending.
This Part provides a general outline of each chapter of the Act, and
assists in locating particular provisions of the Act (for example the forfeiture
provisions).
Clause 6 General
Clause 6 briefly describes
each Part of the Bill.
Clause 7 The confiscation scheme (Chapter
2)
Clause 7 identifies where the restraining order provisions and
various confiscation provisions are located in the Bill, and gives a brief
description of each.
Clause 8 Information gathering (Chapter
3)
Clause 8 sets out the various ways in which information may be
gathered under the Bill, and gives a brief description of each
method.
Clause 9 Administration (Chapter 4)
Clause 9
identifies the administrative matters dealt with in Chapter 4 of the Bill, and
provides a brief description of each.
Clause 10 Miscellaneous
(Chapter 5)
This clause states that Chapter 5 of the Bill deals with
miscellaneous matters.
Clause 11 Interpreting this Act (Chapter
6)
Clause 11 notes that Chapter 6 of the Bill contains the Dictionary
along with other concepts central to the Act, such as ‘proceeds’
‘derived’ and ‘effective
control’.
PART 1-4 –
APPLICATION
This clause provides that the Act binds the Crown in right of the
Commonwealth, of each of the States, the ACT, the NT and Norfolk
Island.
It further provides that nothing in the Act renders the Crown in
right of the Commonwealth, of each of the States, the ACT, the NT and Norfolk
Island liable to be prosecuted for an offence.
This clause extends the Act to acts, matters and things outside
Australia, and to all persons, unless the contrary intention appears.
This clause applies the Act to offences and to criminal convictions for
an offence, which occurred before or after the Act commenced. It is not
necessary that a person be convicted of a criminal offence.
Clause 15
Concurrent operation of State/Territory laws
This clause provides
that the Act is intended not to apply to the exclusion of the concurrent
operation of a law of a State or Territory to the extent that the State or
Territory law is capable of operating concurrently with this Act.
Clause 16 Simplified outline of the Part
This clause gives
a basic outline of the ‘restraining order’ provisions contained in
this Part of the Bill.
The restraint of property suspected of being the proceeds or instrument
of crime is a crucial part of the forfeiture regime. These provisions ensure
that property is preserved and cannot be dealt with to defeat an ultimate
confiscation. This Division provides that a court with proceeds jurisdiction
must issue an order restraining specified property where certain conditions have
been met.
This clause enables a court to make a restraining order where a person
has either been convicted of an indictable offence, or has been, or is about to
be, charged with such an offence. This clause would be used where
conviction-based forfeiture action, under either Part 2-2 or 2-3 of
Chapter 2, is to be taken, or an application for a conviction-based pecuniary
penalty order is to be made.
Paragraphs 17(1)(a) and (b) enable the
court to prohibit a person from dealing with certain property, or prescribe that
the property may only be dealt with it in ways set out in the order. For
example, a restraining order may prohibit a person from selling or mortgaging a
business, but allow him or her to continue to run the business.
The
restraining order may cover all of the property of the person convicted, or
suspected, of the offence (‘the suspect’), or specified parts of
that person’s property. In addition, the order can extend to property of
another person which is suspected of being under the effective control of the
suspect, or that is suspected to be the proceeds or an instrument of the offence
or offences on which the restraining order is based.
The DPP is not
required at this time to prove that the property is effectively controlled by
the person, or is the proceeds or instrument of the offence or offences.
However, an affidavit setting out the suspicions regarding the nature of the
property and the grounds on which those suspicions have been formed must
accompany the application for the order. Where the court is satisfied that
there are reasonable grounds for suspecting that the property specified in the
application is property of the suspect, or proceeds of the offence etc, the
court must restrain that property.
Where the person has not been charged
with or convicted of the offence, the affidavit must also set out the grounds on
which the person is suspected of having committed that offence. The court must
be satisfied that the authorised officer who made the affidavit holds the
suspicion or suspicions on reasonable grounds: paragraph
17(1)(f).
Subclause 17(2) sets out what property can be covered by a
restraining order, and subclause 17(3) states the requirements for an affidavit
supporting the application for the restraining order.
Subclause 17(4)
allows the court to refuse to make the restraining order if it is not in the
public interest to do so. However, the court may only refuse if the offence
with which the person is charged, is about to be charged or is suspected of is
not a serious offence as defined.
Subclause 17(5) provides that the
court must make a restraining order even if there is no risk that the property
will be disposed of or dealt with. A restraining order is a condition precedent
to the court issuing an examination order, which is an important tool which the
DPP may employ to locate further property. It is also necessary for a
restraining order to be in place for the automatic forfeiture provisions to
apply (see Part 2-3).
Subclause 17(6) enables a restraining order to
operate in relation to property which is not yet in the possession of the
suspect at the time the order is made. For example, the suspect’s bank
account may be restrained, and the court may order that any other amounts paid
into that account after the making of the order are also restrained.
Clause 18 Restraining orders – people suspected of committing
serious offences
This clause enables a court to make a restraining
order where there are reasonable grounds to suspect that a person has committed
a serious offence within the six years preceding the application for the
restraining order. If the offence in question is a terrorism offence, however,
no time period applies in relation to its commission.
This clause would
be used where either civil-forfeiture proceedings or civil-based pecuniary
penalty order proceedings were proposed to be instituted. These provisions can
also be used where a person has been convicted of an offence if the DPP so
chooses.
Paragraphs 18(1)(a) and (b) enable the court to prohibit a
person from dealing with certain property, or prescribe that the property is
only to be dealt with it in ways set out in the order.
The restraining
order may cover all of the property of the person suspected of the offence
(‘the suspect’), or specified parts of that person’s property.
In addition, the order can extend to property of another person which is
suspected of being subject to the effective control of the suspect, or that is
suspected to be the proceeds of the offence or offences on which the restraining
order is based. Property which is characterised only as an instrument of the
offence or offences is not able to be restrained as these cannot be the subject
of civil confiscation..
The DPP is not required to prove that the
property is effectively controlled by the person, or is the proceeds of the
offence or offences. However, an affidavit setting out the suspicions regarding
the nature of the property and the grounds on which those suspicions have been
formed must accompany the application for the order. The affidavit must also
set out the grounds on which the person is suspected of having committed the
serious offence.
Where the court is satisfied that there are reasonable
grounds for suspecting that the property specified in the application is
property of the suspect, or proceeds of the offence etc, the court must specify
that property in the restraining order.
A restraining order may only be
applied for by the DPP. Before the court can make a restraining order, it must
be satisfied that the authorised officer who made the affidavit holds those
suspicion or suspicions on reasonable grounds: paragraph
18(1)(f).
Subclause 18(2) sets out what property can be covered by a
restraining order, and subclause 18(3) states the requirements for an affidavit
supporting the application for the restraining order.
Subclause 18(4)
further explains the “reasonable grounds” referred to in paragraph
18(1)(d). It provides that it is not necessary for these grounds to be based on
a finding as to the commission of a particular serious offence ie the conduct
need only be characterised in very general terms and there need not be a
specified perpetrator.
Subclause 18(5) provides that the court must
make a restraining order even if there is no risk that the property will be
disposed of or dealt with. A restraining order is the condition precedent to
obtaining a forfeiture order under clause 47 (see clause 47(1)(b)). In
addition, a court may issue an examination order only where there is a relevant
restraining order in force.
Subclause 18(6) enables a restraining
order to operate in relation to property which is not yet in the possession of
the suspect at the time the order is made.
Clause 19 Restraining
orders - people suspected of committing indictable offences etc
This
clause enables a court to make a restraining order where the property which is
to be the subject of the order is suspected of being the proceeds of either an
indictable offence, a foreign indictable offence or an indictable offence of
Commonwealth concern, which occurred in the 6 years preceding the application.
If the offence in question is a terrorism offence, however, no time period
applies in relation to its commission. Such an order
would be sought where civil-forfeiture proceedings under clause 49 were proposed
to be instituted.
The civil forfeiture procedure under clause 49 does not
require the identification of a particular offender, or a particular offence.
However, the DPP is not prevented from bringing civil-forfeiture proceedings
where the identity of the person who is suspected to have committed the relevant
offence is known. This provision is intended to be used also in cases where
property is found and suspected of being proceeds of crime and no lawful owner
claims it.
As with clauses 17 and 18, the court may prohibit a person
from dealing with certain property, or prescribe that the property is only to be
dealt with it in ways set out in the order.
A restraining order under
this clause covers the property which is reasonably suspected of being the
proceeds of a relevant indictable offence. Instruments cannot be restrained
except where the relevant offence is a terrorism offence. The application may
be brought only by the DPP, and must be supported by an affidavit from an
authorised officer setting out his or her suspicion that the property is the
proceeds of a relevant indictable offence. The affidavit must also include the
grounds on which that suspicion rests. Where the court is satisfied that there
are reasonable grounds for suspecting that the property specified in the
application is the proceeds of a relevant indictable offence, the court must
specify that property in the restraining order.
To make the restraining
order, the court must be satisfied that the authorised officer who made the
affidavit holds the suspicion or suspicions on reasonable
grounds.
Subclause 19(3) allows the court to refuse to make the
restraining order if it is not in the public interest to do so. However, the
court may only refuse if the indictable offence which the property is suspected
of being the proceeds of is not a serious offence.
Subclause 19(4)
further explains the reasonable grounds referred to in paragraph 19(1)(d). It
provides that it is not necessary for these grounds to be based on a finding as
to the commission of a particular serious offence.
Subclause 19(5)
provides that the court must make a restraining order even if there is no risk
that the property will be disposed of or otherwise dealt with.
Clause 20 Restraining orders – people suspected of deriving
literary proceeds from indictable offences etc
This clause provides
for a restraining order to be made where a person is reasonably suspected of
having committed an indictable offence, and the person has derived literary
proceeds from that offence. Where a person has derived literary proceeds in
Australia in relation to a foreign indictable offence, the court may make an
order if there are reasonable grounds to suspect that the person has committed
that foreign indictable offence. The use of the phrase ‘reasonably
suspected of committing an indictable offence’ does no prevent a
restraining order being sought and made where a person has been convicted of a
relevant offence, or is charged or about to be charged with such an offence.
A restraining order would be sought under this clause where proceedings
for a literary proceeds order were to be instituted under Part 2-5 of Chapter
2.
There is no time limit as to when the offence which the person was
convicted of or is reasonably suspected of having committed took place. The
lapse of time since the offence was committed is a matter that court can take
into account in determining whether to make a LPO under paragraph 154(e). The
literary proceeds that may be confiscated are limited to those accrued after the
Act commences. A restraining order made on this basis may be made in respect of
the same conduct which grounded an earlier forfeiture action as the action would
be aimed at confiscating different property.
Paragraphs 20(1)(a) and (b)
enable the court to prohibit a person from dealing with certain property, or to
prescribe that the property may only be dealt with in ways set out in the
order.
The restraining order may cover all of the property of the person
suspected of committing the offence (‘the suspect’), or specified
property of that person. In addition, the order can extend to property of
another person which is suspected of being subject to the effective control of
the suspect.
The DPP is not required to prove that the property is
effectively controlled by the person, but an affidavit setting out the suspicion
of an authorised officer regarding the nature of the property, and the grounds
on which that suspicion has been formed, must accompany the application for the
order. The affidavit must also state that the authorised officer suspects that
the person has derived literary proceeds, and if the offence is a foreign
offence, that the person derived those literary proceeds in Australia. The
grounds for those suspicions must also be set out in the affidavit. If the
person has not been convicted of the relevant offence, the affidavit must also
set out the grounds on which the authorised officer suspects the person of
having committed the offence.
Where the court is satisfied that there
are reasonable grounds for suspecting that the property specified in the
application is property of the suspect or property of a third party which is
subject to the suspect’s effective control, the court must specify that
property in the restraining order.
Before the court can make a
restraining order, it must be satisfied that the authorised officer who made the
affidavit holds those suspicions on reasonable grounds.
Subclause 20(4)
allows the court to refuse to make the restraining order if it is not in the
public interest to do so. However, the court may only refuse if the relevant
offence is not a serious offence.
Subclause 20(5) further explains the
reasonable grounds referred to in paragraph 20(1)(d). It provides that it is
not necessary for these grounds to be based on a finding as to the commission of
a particular indictable offence (or foreign indictable
offence.)
Subclause 20(6) provides that the
court must make a restraining order even if there is no risk that the property
will be disposed of or dealt with.
Subclause 20(7) enables a
restraining order to operate in relation to property which is not yet in the
possession of the suspect at the time the order is made.
Clause 21
Refusal to make an order for failure to give undertaking
This clause
empowers the court to refuse to make a restraining order where the Commonwealth
refuses or fails to give an undertaking as to costs and/or damages flowing from
the making and operation of the order. This is one of the measures of the
forfeiture scheme which affords some protection for the person whose assets are
restrained, and ensures that the DPP only restrains a person’s assets in
appropriate circumstances. To do otherwise would potentially leave the
Commonwealth open to a large damages payment.
Subclause 22(1) provides that a restraining order may only be made in
respect of one suspect. This does not prevent the restraining order restraining
the property of third parties. However, where there are co-offenders, a
separate restraining order will be necessary for the restraint of each
co-offender’s property.
Subclause 22(2) provides that the
restraining order may relate to more than one offence in respect of the same
suspect.
Clause 22 does not prevent an order being made where there is no
identified suspect: refer clause 18.
This clause allows the court to make a restraining order subject to
conditions.
Clause 24 Allowance for expenses
Subclause
24(1) provides that property that is the subject of a restraining order may be
used to meet certain expenses or debts. However, subclause 24(2) provides that
expenses may only be met from the restrained assets if the court is satisfied
that the person cannot meet them from unrestrained assets. This rule applies to
a third party as well as the person defending the forfeiture
action.
Paragraphs 24(1)(a) and (b) provide that restrained assets may be
used to pay the living expenses of a person whose property is restrained, and
any dependants he or she may have. Paragraph 24(1)(c) allows the business
expenses of that person to also be met from the restrained assets.
Paragraph 24(1)(d) provides that the person may also access restrained
assets to pay for a specific debt, which the person has incurred in good faith.
For example, the assets may be used to meet mortgage payments, or the payments
on a lease or hire purchase agreement.
Subclause 24(2) sets out a number
of steps that must be taken by the person before the court may make an order.
The person whose property is restrained must have applied for the order and he
or she must have notified the DPP in writing of the application and the grounds
for the application. In addition, the person must have disclosed all of his or
her interest in property (and his or her liabilities) in a statement on oath
that has been filed in the court. Paragraph 24(2)(d) provides that the court
may only make an order if it is satisfied that the person cannot meet the
expense or debt out of property that is not covered by either a restraining
order, an interstate restraining order or a foreign restraining order registered
under the MAA.
Subclause 24(3) provides that, for the purposes of
paragraph 24(2)(d), property covered by a restraining order, an interstate
restraining order or a foreign restraining order registered under the MAA is
taken not to be covered by the order if it would not be reasonably practicable
for the Official Trustee to take custody and control of the property.
Clause 25 DPP may apply for a restraining order
Although a
number of Commonwealth agencies will investigate and be involved in forfeiture
actions, only the DPP may apply for a restraining order.
This clause sets out the notice provisions for the obtaining of a
restraining order. The DPP may apply for a restraining order either on notice
to the owner of the property or ex parte.
If the DPP requests an
ex parte hearing the court has no discretion to refuse it. An
application would usually be made ex parte where there is a risk that the
assets would be dissipated, or that an investigation may be jeopardised by the
provision of affidavit material (see below and clause 33). If the application is
on notice, however, subclause 26(3) provides that the court must not hear the
application unless it is satisfied that the owner of the property has received
reasonable notice of the application. The usual rules
in civil matters apply to giving or serving of all notices under the
Act.
If the DPP gives the owner notice of the
application, a copy of the application and any affidavit must also be provided
to that person. Where the DPP believes that other people may have an interest
in the property, the DPP must also give them notice of the application, and a
copy of the application. The DPP does not have to initially provide those
people with a copy of the affidavit, but if a copy is requested the DPP must
comply as soon as is practicable. (By contrast, if the DPP secures a
restraining order ex parte, the court has discretion to order that all or
part of the notice and affidavit not be given to the owner of the property or
other relevant person, or that the giving of those documents is delayed : see
subclause 33(3)).
If the court directs, the DPP must also give or publish
notice to any other person or class of persons.
A person who is given
notice of the application for a restraining order is able to contest the
application at the hearing of the application.
Clause 27 DPP may
choose under which section it applies for a restraining order
This
clause confirms that in circumstances where the DPP is able to apply for more
than one type of restraining order, the DPP may choose under which provisions it
seeks the order.
An application for a restraining order will often be the first step in
forfeiture proceedings, and may occur before the investigation is complete.
Clause 28 will protect investigative agencies from being compelled to give out
information which could prejudice an investigation or prosecution. This clause
is based on subsection 43(7) of the Proceeds of Crime Act
1987.
DIVISION 3 – EXCLUDING PROPERTY FROM RESTRAINING
ORDERS
Clause 29 Court may exclude property from a restraining
order
Clause 29 enables a person whose property is the subject of a
restraining order under either clause 17, 18 or 19 to have his or her specified
property excluded from that order. The property able to be excluded, and the
grounds which must be shown for that property to be excluded, depends upon which
basis the restraining order was made. An application under this provision may
be made by the suspect or another person with an interest in the property.
An application for forfeiture is able to be made at either the time the
application for the restraining order is heard or at a later time; the ability
of a person to make an application for exclusion is governed by clauses 30 and
31.
Conviction-based orders
Where the restraining order is
sought or was made under clause 17 – that is, where the order is based on
either the person’s conviction for an offence or their charging, or
proposed charging with an offence - the property able to be excluded depends
upon the type of offence involved.
If the offence (or any of the
offences if there is more that one) is a serious offence, the person must show
that the particular property is neither the proceeds nor an instrument of
unlawful activity : paragraph 29(2)(a). ‘Unlawful activity’ is
defined to include an indictable State, Northern Territory or Australian Capital
Territory offence, as well as a Commonwealth offence and a foreign
offence.
If the offence or all of the offences are indictable ( but not
also serious as defined), then the person must show that the particular property
is not the proceeds or instrument of any offence to which the restraining order
relates: paragraph 29(2)(b).
Civil forfeiture: serious
offences
If the order is sought or was made under clause 18 –
that is, on the basis that there are reasonable grounds to suspect that a
suspect committed a serious offence within the last six years - the person must
show that the property is neither the proceeds of ‘unlawful
activity’ nor an instrument of any terrorism offence (if the relevant
offence is a terrorism offence): paragraph 29(2)(c).
Where the
restraining order was made on the basis of a serious offence
that is an offence against section 15, 24, 29 or 31 of the Financial
Transaction Reports Act 1988, subclause 29(3) enables the court to exclude
property from the restraining order where the suspect adduces evidence on which
the court finds on the balance of probabilities that the conduct which breached
the FTR Act was not done for the purpose of, in preparation for or in
contemplation of any other indictable offence, state indictable offence or
foreign indictable offence. An additional requirement set out in paragraph
29(3)(d) is that the property could not have been covered by a restraining order
if none of the offences had been serious offences, in other words a restraining
order would not have been made for an indictable offence in this case.
Specified FTRA offences have been included in the definition of
‘serious offence’ in the Bill where the transaction or transfer
involves at least $50,000, as they are often indicators of money laundering (or
another serious offence) taking place. However, there are a number of other
circumstances in which a person may contravene one of the provisions, but not be
engaged in a serious offence. For example, a person who is considering
divorcing his or her spouse might set up a bank account in a false name and put
money into that account (which is contrary to section 24 of the FTRA). While
this might contravene Commonwealth legislation it is not the type of conduct to
which civil forfeiture based on a serious offence is directed. Where a person
has contravened a relevant provision, but the court finds that it is not a
precursor to another indictable offence, the person cannot be exposed to civil
forfeiture based on a suspicion of committing a serious offence. However, the
person may still be liable for civil forfeiture of the proceeds of the offence
under the provisions relating to conduct constituting indictable
offences.
Civil forfeiture: indictable offences
Where the
order or application is made under clause 19 – that is, where there are
reasonable grounds to suspect that the property the subject of the restraining
order or application is the proceeds of a relevant indictable offence committed
within the last six years - a person wishing to exclude property from the
restraining order must show that the property is neither the proceeds of an
indictable offence, a foreign indictable offence or an indictable offence of
Commonwealth concern nor an instrument of any terrorism offence (if the relevant
offence is a terrorism offence): paragraph 29(2)(d).
Before the court may release the property on any of those grounds, the court
must also be satisfied that neither a PPO nor LPO could be made against the
suspect (if the property is under his or her effective control) or the owner of
the property : subclause 29(4).
Subclause 30(1) enables a person who is given notice of an application
for a restraining order to seek to have specified property excluded from that
order. The person must apply to the court within 14 days of being notified, and
must give the DPP notice of the grounds on which the exclusion is being
sought.
The DPP must provide the person with notice of any grounds on
which it proposes to contest the person’s application, and may appear and
adduce evidence at the hearing of the application.
Once a restraining order has been made, clause 31 enables a person whose
property is restrained by the order to apply to have some or all of the property
excluded.
Subclause 31(1) provides that a person may apply to the court
for such an exclusion at any time after being notified of the order. This is
limited by the operation of administrative forfeiture for serious offences where
property which remains restrained after 6 months can be
forfeited.
Subclause 31(2) restricts the ability of a person who received
notice at the application stage to apply for an order. Whether or not such a
person appeared at the hearing for the restraining order, he or she must seek
the leave of the court to apply for an exclusion order under this clause.
Where a person seeks the leave of the court, subclause 31(3) provides
that the court may only grant that leave if certain circumstances apply. If the
person failed to appear at the hearing, the court may only grant leave if the
person had a good reason for not appearing. If the person did appear, the court
may grant leave if that person now has new evidence (which was not available at
the time of the hearing). Paragraph 31(3)(c) also provides the court with a
discretion to grant leave if there are special grounds.
Subclause 31(4)
provides that the person must give the DPP notice of the application for
exclusion and the grounds on which the exclusion is being sought; subclause
31(6) requires the DPP to provide the person with notice of any grounds on which
it proposes to contest the person’s application.
Clause 32
Application not to be heard unless DPP has had reasonable opportunity to conduct
an examination
This clause applies only if a restraining order is in
force. The court must not hear an application to exclude property from the
restraining order if the DPP has not been given a reasonable opportunity to
conduct an examination of the applicant under Part 3-1.
Clause 33 ensures that each person whose property is restrained (whether
or not that person had notice of the application for the restraining order) is
given written notice of the restraining order. As stated previously the usual
rules for service in civil cases apply to the service or giving of all notices
under the Act.
If the person does not already have a copy of the
application and any affidavit material, the DPP must supply that information to
the person. However, subclause 33(3) provides the court with a discretion to
order that all or part of the notice or affidavit not be given to the owner of
the property or other relevant person, or that the giving of those documents is
delayed. Subclause 33(4) provides that if the giving of notice (and the
documents included with the notice) is delayed, the DPP must provide it as soon
as practicable after the end of that period.
This clause provides that where the Commonwealth or a state or territory
has a system of registration for certain types of property the DPP may apply for
a restraining order to be registered with the relevant authority. Once
registration is effected, any person who deals with the property is taken to
have notice of the restraining order for the purposes of clause 37, and not to
be acting in good faith for the purposes of clause 36. Dealing with restrained
property contrary to a restraining order is an offence.
The most likely
property to be registered will be real property; however, motor vehicles, boats
and many other types of property also have relevant registration
systems.
Clause 35 Notifying registration authorities of variations to
restraining orders
This clause applies where the DPP has previously
applied under clause 34 to the registration authority to record the restraining
order. The DPP must notify the authority if the property has been excluded from
the order under section 29. The DPP must also notify the relevant registration
authority of an order under clause 39 either varying the property covered by a
restraining order or varying a condition to which a restraining order is
subject. Such notice must be given within a reasonable time after the order
under section 39 is made.
Clause 36
Court may set aside a disposition contravening a restraining
order
Subclause 36(1) enables the DPP to apply to the court to set
aside a disposition or dealing with property which contravenes a restraining
order when that disposition or dealing was either not for sufficient
consideration, or was not in favour of a person who acted in good faith.
Subclause 36(2) requires the DPP to give, to each party to the disposition or
dealing, notice of both the application and the grounds on which it seeks the
setting aside of the disposition or dealing.
Subclause 36(3) provides
that the court may set aside such a dealing or disposition from either the day
it occurred, or the day on which the order is made. If the court sets the
disposition or dealing aside on the day of the order, the court may at that
stage declare the rights of a person who acquired an interest in the property
between the time of the dealing or disposition and the court order.
This clause would enable all gifts of restrained property to be set
aside, as no consideration is exchanged when making a gift. This clause would
also catch transactions where there was sufficient consideration, but the person
buying the restrained property knew that the property was restrained, and thus
acted in bad faith. The court may choose to set the transaction aside on the
day of the order, and declare that such a person had no right or interest in the
property, but was entitled to a refund of the consideration he or she paid for
the property.
However, a person who acted in good faith and provided
sufficient consideration would not be subject to the transaction being set
aside.
Subclauses 37(1) and (2) create offences in relation to contravening
restraining orders.
Under subclause 37(1) it is an offence to dispose of
or otherwise deal with restrained property in contravention of a restraining
order where the person knows or is reckless as to whether the property is
covered by a restraining order.
Under subclause 37(2), a person is
guilty of an offence if he or she deals with the property in contravention of a
restraining order and the particulars of that order were recorded on a register,
pursuant to subclause 34(1) or he or she was notified of the making of the
restraining order under clause 29.
The maximum penalty that may be
imposed for each offence is imprisonment for 5 years, a fine of 300 penalty
units, or both.
Clause 38 Court may order Official Trustee to take custody and
control of property.
This clause enables a court to order the
Official Trustee (OT) to take custody and control of restrained property where
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.
Subclause 39(1) enables a court to make any ancillary orders that it
considers appropriate. While paragraphs 39(2)(a)-(e) set out types of ancillary
orders that the court may make, the court is not restricted to only those
ancillary orders.
Paragraph 39(2)(a) enables a court to make an order
varying the property covered by the restraining order. For example, the court
may order the inclusion of property whose existence is discovered in an
examination.
Under paragraph 39(2)(b) a court can make an order varying a
condition of the restraining order.
The court may also amend the need
for the DPP to provide an undertaking under clause 21: paragraph
39(2)(c).
Paragraph 39(2)(d) enables a court to make an order directing
the owner of property to give a sworn statement about the particulars of the
property, or that person’s dealings with the property. The court may make
the order in respect of a director of a body corporate which owns property. For
example, the DPP may apply to the court for an order in respect of a director to
establish whether a person has effective control over a piece of property.
Paragraph 39(2)(e) 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 anything
necessary or convenient to enable the OT to take custody and control of the
property.
Pursuant to paragraph 39(2)(f), the court may make an
ancillary order giving directions about the operation of the restraining order
and a forfeiture order which covers the same property as the restraining order
or a PPO or LPO that relates to the same offence as the restraining order.
The court may also, pursuant to paragraph 39(2)(g) order a person whose
property is subject to a restraining order and with property outside of the
jurisdiction to do anything necessary or convenient to bring it into the
jurisdiction. Failure to comply with this order is an offence punishable by
five years’ imprisonment or 300 penalty units or both: see clause 40.
This enables a court to make orders in relation to all of a person’s
property, or to take appropriate action against a person who refuses to bring
all of his or her assets into the jurisdiction.
Subclause 39(3) provides
that the DPP, the owner of restrained property, the OT (where the OT has been
directed to take custody and control of the property) and any other person by
leave of the court may apply to the court for an ancillary order. The court may
not make an ancillary order of its own motion.
Subclause 39(4) ensures
that each party who is entitled to make an application for an ancillary order is
given notice of any order which is sought. The usual rules of service in civil
cases apply to notices under the Act.
Subclause 39(5) makes it clear that
an ancillary order may be made at either the time that the restraining order is
made or at any time thereafter.
If a restraining order, or part of the
restraining order, ceases to be in force because the property it covers is
forfeited, or that property was covered by a PPO or LPO which has been satisfied
(see subclauses 45(4) and (5)), that alone does not cause any orders ancillary
to the restraining order to cease: subclause 39(6).
Clause 40
Contravening ancillary orders relating to foreign property
If a
person is ordered by the court to bring his or her property into the
jurisdiction, and contravenes that order, the person is guilty of an offence
under clause 40, and liable to 5 years’ imprisonment or a fine of 300
penalty units, or both.
Clause 41 When a restraining order is in force
This clause
establishes that a restraining order comes into force upon the order being made.
Clause 42 Application to revoke a restraining
order
Subclause 42(1) enables a person who was not given notice by
the DPP of the application for a restraining order to apply to revoke that
order. The person must apply within 28 days of being given notice that the
order has been made. This may apply where the application was made ex
parte, or where the application was made on notice, but the person was not
given notice (for example, their interest in the property was not known at the
time of the application). The person must provide notice to the DPP and the OT
of the application and the grounds on which the application is
made.
Subclause 42(3) ensures that the restraining order remains in force
throughout revocation proceedings until revoked by the court.
Subclause
42(4) allows the DPP to introduce additional evidence at the hearing of the
application to revoke the order. Subclause 42(4) provides that the court may
revoke the restraining order if it is satisfied that there is no basis on which
to make the order at the time that the revocation application is considered.
Taken together, those subclauses allow the court to look at the material
supporting the grounds for the restraining order not at the time that the
original order was made, but at the time an applicant seeks to have it revoked.
This may be some time from when the original order was
made.
Clause 43 Notice of revocation of a restraining
order
This clause provides that where a restraining order is revoked,
the DPP must give written notice of that revocation to the owner of the property
and other persons with an interest in the property. However, the clause does
not require the DPP to give notice to the applicant.
Clause 44 Giving
security etc. to revoke etc. a restraining order
Subclause 44(1)
enables a suspect whose property is restrained to have the restraining order
revoked or amended to exclude certain property upon him or her providing the
court with a security that would meet any liability that may be imposed on the
suspect under the Act. The suspect must provide the DPP with written notice of
the application.
Unlike the other revocation provisions, the suspect does
not have to show that the property is not the proceeds or instrument of an
offence, or otherwise dispute the nature of the property.
Subclause
44(2) enables a third party whose property is restrained to have the restraining
order revoked or certain property excluded from the order upon providing the
court with an undertaking. That undertaking is not required to involve a
monetary amount, or be able to cover any possible liability imposed under the
Act – the only requirement is that it be satisfactory to the court.
Clause 45 Cessation of restraining orders
Clause 45
establishes the various ways in which a restraining order will cease to
operate.
Effect on restraining orders of withdrawal of charges,
acquittals etc
A restraining order which was made on the basis of a
conviction, charge or imminent charge, will cease to be in force at the
expiration of 28 days from any of the events set out in paragraphs 45(1)(a)-(c)
occurring.
Those paragraphs relevantly provide that a restraining order
will cease if the suspect is charged with an offence and the charge is
withdrawn, if a suspect is acquitted of the offence or all of the offences with
which he or she was charged, or if a suspect’s conviction is quashed.
However, if a confiscation order relating to the offence or offences on
which the restraining order was based has been made, or there is an application
for such an order before the court, the restraining order does not automatically
cease to be in force -paragraphs 45(1)(d) and (e). Alternatively, if the
suspect is charged with a related offence (as defined), or an application for
confirmation of a forfeiture order (which relates to the offence) has been made,
the restraining order does not cease to be in force : paragraphs 45(1)(f) and
(g).
Restraining orders if there is no conviction
etc.
Subclause 45(2) provides that if the suspect has not been
convicted of, or charged with, the offence, or at least one of the offences, to
which the restraining order relates, within 28 days of the restraining order
being made, and no application for a confiscation order or confiscation order
has been made in relation to that offence, the restraining order immediately
ceases to be in force.
Restraining orders and forfeiture
orders
Subclause 45(3) establishes a number of ways in which a
restraining order may cease to be force.
Sub-paragraph 45(3)(a)(ii)
provides that a restraining order ceases to be in effect in relation to
particular property if that property is excluded from the restraining order.
The restraining order would remain in effect if there was other property
restrained which was not yet forfeited.
Where a forfeiture order is made
in relation to restrained property, the discharge or cessation of that
forfeiture order will cause the restraining order to also cease: paragraph
sub-paragraph 45(3)(a)(iii). A restraining order covering property that is
subsequently excluded from forfeiture pursuant to clause 94 ceases to be in
force in relation to that excluded property : sub-paragraph
45(3)(a)(iv).
Where a court refuses an application for a forfeiture order
in respect of restrained property, and either the time for an appeal against
that refusal has expired without an appeal being lodged, or an appeal has lapsed
or been dismissed and finally disposed of, the restraining order immediately
ceases to be in force in relation to that property : see sub-paragraph
45(3)(a)(i) and paragraph 45(3)(b).
However, where relevant,
paragraphs 45(3)(c) and (d) provide additional criteria that must be present
before the restraining order can cease. An order cannot cease if there is an
application for another confiscation order which is yet to be determined, and
that application relates to either the offence on which the restraining order is
based or a related offence. Where relevant, a restraining order cannot cease if
there is in force another confiscation order which relates to the offence on
which the restraining order is based.
Where property is forfeited under
Division 4 of Part 2-2 (civil forfeiture, conviction-based forfeiture for a
non-serious offence), or Division 1 of Part 2-3 (automatic forfeiture on
conviction of a serious offence) the restraining order ceases to operate in
relation to that property: subclause 45(4)
Restraining orders,
pecuniary penalty orders and literary proceeds orders
Subclause 45(5)
provides that property which was restrained in contemplation of a confiscatory
action immediately ceases to be restrained under the restraining order if a PPO
or LPO is satisfied or the property covered by the restraining order is sold or
disposed of to satisfy the PPO or LPO. The restraining order also immediately
ceases if the PPO or LPO is discharged or otherwise ceases to have
effect.
Restraining orders and instruments owned by third
parties
Subclause 45(6) provides that, in spite of subclause 45(1),
where the property of a third party (which is not under the effective control of
the suspect, and is not the proceeds of the offence to which the order relates)
is restrained as an instrument of the relevant offence, the restraining order
ceases to be in effect in relation to that instrument if the suspect has not
been charged with the offence or related indictable offence within 28 days of
the restraining order being made. This ensures that third party instruments
only continue to be restrained in circumstances where they could be
forfeited.
PART 2-2- FORFEITURE
ORDERS
Clause 46 Simplified outline of this
Part
This clause gives a basic outline of the ‘forfeiture
order’ provisions contained in this Part of the Bill.
Clause 47 Forfeiture orders - conduct constituting serious
offences
Civil-forfeiture: serious offences
Subclause 47(1) requires a court, on the application of the DPP, to make a ‘civil-forfeiture’ order against property which has been restrained under the Bill for at least six months if there are reasonable grounds to suspect that the person engaged in conduct which constituted a serious offence and, for each such suspected offence that is not a terrorism offence, the offence was committed within the 6 years preceding the application or since the application was made. Thus, the court is required to make a forfeiture order in relation to all property which has not been the subject of a successful application for exclusion from restraint (under the exclusion provisions of Part 2-1 of Chapter 2), or from forfeiture (under the exclusion provisions of Division 5 of this Part).
Unless an application for exclusion from forfeiture is made under clause 74, the court would not be required for the purposes of making a forfeiture order to be satisfied about the nature of the property being forfeited. The forfeiture order may apply to any property of the suspect or another person which could have been restrained under clause 18.
To make a civil forfeiture order, the court must find to the civil standard (‘on the balance of probabilities’) that the person engaged in conduct constituting a serious offence within the last six years. ‘Serious offence’ is defined in Part 6-2. The serious offence need not be the same offence on which the restraining order was based, and a particular offence need not be proved. It is sufficient for the court to be satisfied that any serious offence has been committed.
Subclause 47(3) states that the raising of a doubt as to whether a person
engaged in conduct constituting a serious offence is not a sufficient ground on
which a court can find that a person did not engage in such conduct. This
provision is based on subsection 22(6) of the NSW Criminal Assets Recovery
Act 1990.
Clause 48 Forfeiture orders – convictions for
indictable offences
Conviction-based
forfeiture
Clause 48 enables a court to make a forfeiture order, on
the application of the DPP, in relation to the proceeds or instruments of an
indictable offence of which a person has been convicted. Unlike civil-forfeiture
based on conduct constituting serious offences (clause 47) or automatic
forfeiture (Part 2-3)), it is only the proceeds or instruments of the particular
offence or offences of which the person has been convicted which can be
forfeited under this clause. For example, if a person is convicted of
defrauding social security of $5,000, it is only the proceeds or instrument of
that particular offence that may be forfeited under this provision. However,
the application of the clause is not restricted to the property of the person
convicted of the particular offence - property in the possession of a third
party which falls within the definition of proceeds or instrument (see clause
330), is also liable to forfeiture.
Clause 48 can be applied where a
person has been convicted of one or more indictable offences even if these also
include one or more serious offences. Under Part 2-3, property is liable to
automatic forfeiture where a person is convicted of a serious offence. However,
automatic forfeiture is only available if there is a restraining order under
Part 2-1 of this Chapter. In situations where there is no restraining order,
clause 48 can be relied upon to make a forfeiture order in relation to proceeds
or instruments of the offence.
Where the court is satisfied (to the
civil standard) that particular property is the proceeds of one or more of the
offences for which the person was convicted, the court must make an order
forfeiting that property under subclause 48(1). Forfeiture may be ordered under
this subclause even if a particular piece of property could be classified as
both proceeds of one offence and an instrument of another offence.
If the
court is satisfied that property is not proceeds of the offence or offences, but
is an instrument of any such offence, the court has a discretion as to whether
to order forfeiture of that property: subclause 48(2). Subclause 48(3) sets out
the matters that the court may have regard to in determining whether or not to
order forfeiture of instruments. Discretion is afforded in relation to the
forfeiture of instruments of crime in recognition that forfeiture may be unduly
harsh in some circumstances. For example the court may find that a hire car is
an instrument of an indictable offence, and thus liable to forfeiture. However,
having regard to the use that is ordinarily made of the car (pursuant to
paragraph 48(3)(b)), the court may decline to order forfeiture.
Clause
49 Forfeiture orders – conduct constituting indictable offences
etc.
Clause 49 provides for civil forfeiture orders for circumstances
where conduct involves indictable offences. The court must make such an order,
on the application of the DPP, in relation to property which has been restrained
for six months under Part 2-1 of this Chapter and no application for exclusion
from restraint has been made or is on foot. If an application for exclusion
from restraint has been made, the court is also required to find (on the civil
standard) that the property is the proceeds (as defined) of an indictable
offence, a foreign indictable offence or an indictable offence of Commonwealth
concern (each of those terms is defined in Part 6-2) committed within the 6
years preceding the application for the restraining order.
If the offence in question is a terrorism offence, however, no time
period applies in relation to its commission.
It is not necessary for the court to make a finding either that a particular
offence has been committed or that a particular person committed any offence:
subclause 49(2).
Before the court may make a civil forfeiture order
under clause 49 it must be satisfied that the DPP has taken reasonable steps to
identify and notify any person with an interest in the property: paragraph
49(1)(d).
Clause 50 Existence of other confiscation orders
Clause 50 makes it clear that the existence of another type of
confiscation order in relation to a particular offence does not affect the
ability of the court to make a forfeiture order in relation to that same
offence.
Clause 51 Acquittals do not affect forfeiture orders under
section 47 or
section 49
The mere fact that a person has
been acquitted of an offence with which he or she has been charged does not
affect the court’s power to make a forfeiture order under clause 47 or
clause 49 in relation to the offence.
Clause 52 Making of
forfeiture order if person has absconded
Clause 52 imports two
additional elements of which the court must be satisfied before a forfeiture
order can be made against a person deemed to have been convicted of an
indictable offence by virtue of the operation of paragraph 331(1)(d).
First, the court must be satisfied, to the civil standard, that the
person did abscond (as defined) in connection with the indictable offence:
paragraph 52(a).
Secondly, either of the elements set out in paragraph
52(b) must occur: the person must have been committed for trial for the
offence, or the court hearing the application for the forfeiture order must be
satisfied that on the available evidence a reasonable jury could lawfully find
the person guilty of the offence.
This ensures that a forfeiture order
is made in relation to a deemed conviction only after a court has assessed the
evidence of the offence, thus preventing a forfeiture order being made in
circumstances where there was insufficient evidence to require the person to
stand trial for the offence.
Clause 53 Jurisdictional issues concerning forfeiture
orders
Subclauses 53(1)-(3) clarify jurisdictional issues that may
arise to ensure that courts have the ability to make orders made under this
Part.
DIVISION 2 – OTHER RELEVANT MATTERS WHEN A COURT IS
CONSIDERING WHETHER TO MAKE FORFEITURE ORDERS
Clause 54
Presumption in certain cases that property is an instrument of an
offence
When a court is hearing an application for a forfeiture order
under clause 47 or 49 in relation to a person’s commission of a terrorism
offence, clause 54 provides a rebuttable presumption that property in a
person’s possession at the time of, or immediately after, the commission
of an offence, was used in, or in connection with, the offence. This same
rebuttable presumption applies when a court is hearing an application for a
conviction-based forfeiture order under clause 48.
This
presumption is established by evidence of the property being in the
person’s possession at the relevant time. Unless there is evidence that
tends to show the property was not used in, or in connection with, the offence,
the court must presume that the property was so used, and thus is an instrument
of the offence.
However, if such evidence is provided to the court, the
court cannot make a forfeiture order unless it is satisfied that the property
was used or intended to be used in, or in connection with, the commission of the
offence.
This clause is based on subsection 19(6) of the Proceeds of Crime Act
1987.
Clause 55 Forfeiture orders can extend to other interests
in property
This clause allows the court to specify in a forfeiture
order interests in property other than the interest of the person who is the
subject of the order. This may be done if the proceeds from the disposal of the
combined interests is likely to be greater than the proceeds of the interests if
disposed of separately, or if disposing of the interests separately would be
impractical or significantly more difficult than disposing of the combined
interests.
If the court does specify other interests in the property,
the court may make ancillary orders to protect a person who has one or more of
the other interests. Such orders may include an order directing the
Commonwealth to pay the person the value of their interest, or an order
directing that specified other interests in the property be transferred to the
person.
For example, where property is owned by joint tenants the
disposal of the entire property may be the only way to realise the value of that
property. In such a situation the court could specify that the interest of the
innocent joint tenant is to be included in the forfeiture order, but protect
that person’s rights by making an ancillary order that the Commonwealth
pay that person half of the proceeds from the sale.
In deciding whether
to make an ancillary order, the court must have regard to the nature, extent and
value of the person’s interest in the property concerned, the nature,
extent and value of the any other person interest claimed in the property, and
any other matter that the court considers relevant.
Clause 56
Forfeiture orders must specify the value of forfeited property
Clause
56 provides that the court must specify in any forfeiture order, the value of
any property (other than money) specified in the order.
Clause 57 A
person may buy back forfeited property
This clause enables a person
who had an interest in forfeited property to buy back the interest, if the court
finds, amongst other matters, that that is not contrary to the public interest.
The clause is based on existing provisions in the Proceeds of Crime Act
1987.
Clause 58 The court may also make supporting
directions
Clause 58 provides that if the court makes a forfeiture
order, the court has power to give all directions that are necessary or
convenient for giving effect to the order. Where the court makes a forfeiture
order that specifies registrable property, the court may give a direction to an
officer of the court to do what is necessary and reasonable to obtain possession
of any document necessary for the transfer of the property. For example, if the
court makes an order forfeiting real property, it may give a direction to an
officer of the court to obtain the Certificate of Title of that property. The
clause is based on existing provisions in the Proceeds of Crime Act
1987.
Clause 59 DPP may apply for a forfeiture order
This
clause empowers the DPP to apply for a forfeiture order. If the application
relates to a person’s conviction of an indictable offence the application
must be made before the end of the period of six months after the conviction
day.
Clause 60 Additional application for a forfeiture order
Clause 60 prohibits the DPP from applying for a forfeiture order in particular circumstances without the leave of the court. The prohibition prevents the DPP from seeking to make an application for forfeiture under a clause of Division 1 of this Part if an application has already been under that clause in relation to the particular offence, and that application has been finally determined. Similarly, if an application for forfeiture has been made and finally determined in relation to an offence under another law of the Commonwealth or a law of a non-governing Territory, the DPP cannot apply for a Division 1 forfeiture order in relation to that offence without the leave of the court.
Subclause 60(2) prescribes that the court may only give leave in particular circumstances – namely if the court finds that the property to which the new application relates was identified only after the first application was determined, necessary evidence became available only after the first application was determined, or it is in the interests of justice to grant the leave.
A forfeiture order may be a civil-forfeiture order relating to a serious
offence (clause 47), a conviction-based forfeiture order (clause 48) or a
civil-forfeiture order relating to an indictable offence (clause 49). If one of
those orders is sought and finally determined (eg a conviction-based order under
clause 48) clause 60 prevents the DPP from making a second application under
that clause in relation to the same offence. However, the DPP may apply for a
different type of forfeiture order (for example a civil-forfeiture order) or may
seek a LPO or PPO (as they are not forfeiture orders). Clause 60(3) makes this
clear.
Clause 61 Notice of application
This clause
requires the DPP to give written notice of an application for a forfeiture order
to a person whose conviction of an offence has led to the application. The usual
rules of service in civil cases apply to the service of notices under this
Act.
The DPP must also give notice to any person who claims an interest
in property covered by an application and to any person who the DPP reasonably
believes may have an interest in that property. In addition, the court may
direct the DPP to give or publish notice of an application to a specified person
or class of persons at any time before the court finally determines the
application, and may specify the time and manner of
publication.
Clause 62 Amending an application
Clause 62
provides that the court hearing an application for a forfeiture order may amend
the application either on the application of the DPP or with the consent of the
DPP. However, the court must not include additional property unless the court
finds either that the property was not capable of identification when the
application was originally made or that necessary evidence became available
after the application was originally made. In the case of a forfeiture order
applied for under clause 47 or 49, the court must not include additional
property unless satisfied either that including the additional property in the
application for the order might have prejudiced the investigation of, or the
prosecution of a person for, an offence or that it is for any other reason
appropriate to grant the application to amend .
The DPP must give
written notice, in accordance with the usual rules in civil cases, of an
application for an amendment to include additional property in the application
for a forfeiture order to any person who the DPP believes has an interest in
that additional property. If the forfeiture order
applied for is an order under clause 48, any person who claims an interest in
that additional property may appear and adduce evidence at the hearing of the
application to amend.
Clause 63 Court may dispense
with notice requirements if person has absconded
Clause 63 permits
the court, on application by the DPP, to dispense with the requirement to give
notice to a person provided the court is satisfied that the person has absconded
in connection with the offence.
Clause 64 Procedure on application
Clause 64 provides for
matters of procedure in the hearing of an application for a forfeiture order.
Subclause 64(1) provides that any person who claims an interest in property included in an application for a forfeiture order may appear and adduce evidence at the hearing.
Subclause 64(2) provides that, in respect of an application for a forfeiture order that relies on a person’s conviction of an indictable offence, the court may have regard to the transcript of any proceeding against the person for that offence or, if the person is taken to be convicted of that offence because of the operation of paragraph 331(1)(c) (where a court has taken account of the offence in passing sentence on the person for another offence) any proceeding in respect of that other offence. The court may also have regard to any evidence given in those proceedings.
Subclause 64(3) permits the court to make a forfeiture order if a person
entitled to notice fails to appear at the hearing.
This clause enables a court to hear and determine an application for a
forfeiture order made in relation to a person who was convicted of an indictable
offence before that same court. The clause provides that in those circumstances
the court may exercise its powers in relation to the order regardless of whether
or not the court is constituted in the same manner as when the person was
convicted of the indictable offence.
Clause 66 What property is forfeited and when – general
rule
Clause 66 provides that property specified in a forfeiture order
vests absolutely in the Commonwealth at the time the order is
made.
Clause 67 First exception – registrable
property
This clause provides an exception to the rule in clause 66
for registrable property. If property specified in the forfeiture order is
registrable property, the property vests in equity in the Commonwealth but does
not vest in the Commonwealth at law until the registration requirements have
been completed. Paragraph 67(1)(b) gives the DPP power to do, on behalf of the
Commonwealth, anything necessary or convenient to give notice of or protect the
Commonwealth’s equitable interest in the property. Paragraph 67(1)(c)
provides that the Commonwealth is entitled to be registered as owner of the
property. Paragraph 67(1)(d) provides that the Official Trustee has power on
behalf of the Commonwealth to do anything necessary or convenient to obtain the
registration of the Commonwealth as the owner. The Official Trustee’s
powers under this paragraph include executing any instrument required to be
executed by a person transferring an interest in property of that kind :
subclause 67(3).
Subclause 67(2) ensures that any action by the DPP to protect the
Commonwealth’s interest in the property is not taken to be a dealing with
the property for the purposes of subclause 69(1). Subclause 69(1) prescribes
when the Commonwealth can begin to deal with forfeited
property.
Clause 68 Second exception – if a joint owner dies
before the order was made
This clause provides an exception to the
rule in clause 66 (when property vests in the Commonwealth) for 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 the order or while
a restraining order covering the property was in force. By force of clause 68
the property 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 clause
is that the property does not form part of the deceased’s
estate.
Clause 69 When can the Commonwealth begin dealing with
forfeited property?
This clause prescribes when the Commonwealth and
persons acting on its behalf can dispose of, or otherwise deal with, property
specified in a forfeiture order.
Forfeited property can only be dealt
with after the end of the period in which the person could appeal the forfeiture
order – if such an appeal has been lodged, the property can not be dealt
with until the appeal lapses or is finally determined. Where the forfeiture
order was made in relation to the person’s conviction (ie under clause
48), the property may only be forfeited at the end of the appeal period in
relation to the person’s conviction for an offence. Again, if an appeal
has been lodged the property cannot be dealt with until that appeal is
determined.
Those provisions ensure that property is not dealt with
prematurely, as some property may not be recoverable once dealt with (eg a house
or other unique possession). However, if there is cause to dispose or deal with
the property prior to the latter of the times set out in subclause 69(1),
subclause 69(2) enables early dealing to occur as long as the court gives leave
and the dealing is made in accordance with any directions of the
court.
Where the person is taken to have been convicted by reason of
paragraph 331(1)(b) (the person is charged with, and found guilty of the offence
but is discharged without conviction) an appeal against the finding of the
person guilty of the offence is regarded as an appeal against the conviction.
Where the person is taken to have been convicted of the offence by reason of
paragraph 331(1)(c) (the offence is taken into account in sentencing for another
offence) an appeal against the person’s conviction of the other offence is
regarded as an appeal against the conviction.
Clause 70 How must
the Commonwealth deal with forfeited property?
This clause provides
for the way in which the Commonwealth must deal with forfeited property. If the
forfeiture order is still in force at the end of the later time mentioned in
subclause 69(1), the Official Trustee (on the Commonwealth’s behalf) must,
as soon as practicable, dispose of any property specified in the order that is
not money. The Commonwealth must then apply any amount received from that
disposal, and any money specified in the order, to payment of its remuneration,
costs charges and expenses in connection with the disposal and with any
restraining order that covered the property and pay the balance to the Reserve
in accordance with clause 296.
Subclause 70(2) provides that, where the
Official Trustee is required to deal with the property specified in a forfeiture
order but has not yet begun to deal with the property, the Minister or a senior
Departmental officer authorised for the purposes of the subclause
may direct that the property be alternatively disposed of or otherwise dealt
with. Such a direction may be that property be disposed of in accordance with
provisions of a specified law. That means that under subclause 70(2) the
Minister retains a power to direct that forfeited property be disposed of in
some particular way, for example that it be made available for use by a law
enforcement agency for operational purposes but ultimately sold and the proceeds
paid into the Confiscated Assets Account. That subclause adopts a similar
provision to subsections 20(3A) and (4) of the Proceeds of Crime Act
1987.
Clause 71 Dealings with forfeited
property
Clause 71 creates an offence of dealing with registrable
property which is subject to a forfeiture order before registration of the
Commonwealth’s interest, knowing it to be subject to a forfeiture order.
That clause is based on section 97 of the Proceeds of Crime Act
1987.
DIVISION 5 – REDUCING THE EFFECT OF FORFEITURE
ORDERS
Subdivision A – Relieving
hardship
Clause 72 Relieving certain dependants from
hardship
This clause enables a dependant of a person whose property
is the subject of a civil-forfeiture order (whether based on a serious offence
or an indictable offence) to seek payment from the Commonwealth to compensate
that person for the hardship that would be caused by the forfeiture
order.
Such an order must specify the amount to be paid, and the court
must be satisfied that the amount would relieve the hardship.
Where the
dependant is aged 18 or over, the court must also be satisfied that the
dependant had not knowledge of the conduct the subject of the order. The court
may make an order in respect of more than one dependant.
The specified
amount cannot exceed the difference between the amount the court considers
likely to be received from disposing of the person’s property under the
forfeiture order and the sum the court considers likely to be paid under
paragraph 70(1)(b) (payment of the OT’s costs, remuneration
etc).
Subdivision B – Excluding property from a forfeiture
order
Clause 73 Making exclusion orders
This
clause provides for a court to make orders excluding specified property from a
forfeiture order. An exclusion order is made on application by a person whose
property is specified in the forfeiture order or the forfeiture application.
The application is made to the court that made a forfeiture order, or is hearing
or is to hear an application for a forfeiture order.
Civil-forfeiture
The court must make an exclusion order on application by a person if
the forfeiture order or forfeiture application would be, or was, made under
either clause 47 (civil-forfeiture based on conduct constituting a serious
offence) or clause 49 (civil-forfeiture based on conduct constituting an
indictable offence), and the applicant is the person on whose commission of an
offence the order was (or would be) based. In addition, the court must be
satisfied that the property sought to be excluded is neither the proceeds of
‘unlawful activity’ nor (if the relevant offence is a terrorism
offence) an instrument of any terrorism offence.
‘Unlawful
activity’ is defined to include State, Northern Territory and ACT
indictable offences, as well as indictable offences against the laws of the
Commonwealth, external Territories and foreign countries.
Civil-forfeiture : third parties
Where the applicant for
an exclusion order is not the person against whom the civil forfeiture order was
made, the court must exclude property if it is satisfied that the person was not
involved in the offence or offences to which the order relates. In addition,
the court must be satisfied that the property to be excluded is neither the
proceeds of unlawful activity nor (if the relevant offence is a terrorism
offence) an instrument of any terrorism offence.
Conviction-based
forfeiture
If the forfeiture order, or application for forfeiture, is
made under clause 48 (conviction-based forfeiture), the court must be satisfied
that the applicant was not in any way involved in the commission of any of the
offences to which the forfeiture order or forfeiture application relates. In
addition, the court must be satisfied that the property to be specified in the
exclusion order is neither proceeds nor an instrument of any of those offences.
Subclause 73(2) sets out the matters that must be contained in an
exclusion order. An exclusion order must specify the nature, extent and value
of the property of the property concerned. It must direct that the property be
excluded from the operation of the relevant forfeiture order. If the property
has vested in the Commonwealth and is yet to be disposed of, the order must
direct the Commonwealth to transfer the property to the applicant. If the
property has vested in the Commonwealth and has been disposed of, the order must
direct the Commonwealth to pay the applicant an amount equal to the value
specified in the order.
Clause 74 Applying for exclusion
orders
Clause 74 sets out the circumstances when a person may apply
for an exclusion order.
Before a forfeiture order has been
made
Prior to a forfeiture order being made, a person may apply for
an exclusion order in respect of property the subject of the forfeiture
application.
After a forfeiture order has been made
Once a
forfeiture order has been made, a person who was afforded notice of the
application for the order but did not appear at the hearing must seek the leave
of the court to apply for an exclusion order : paragraph 74(2)(a). In that
circumstance, the court may grant leave to apply for an exclusion order if it
finds that the person did not attend the hearing for a good reason : paragraph
74(3)(a).
The leave of the court must also be sought by a person who did
attend the hearing of the application, or a person who wishes to make an
application for exclusion more than six months after the date of the forfeiture
order : paragraphs 74(2)(b) and (c).
Where the person appeared at the
hearing of the application for the forfeiture order, the court may give leave if
the court finds that the person now has relevant evidence in connection with the
application that was not available to the person at the time of the hearing of
the application for the forfeiture order : paragraph 74(3)(b). If more than six
months have elapsed, the court may give leave to apply if the court finds that
the person’s failure to apply was not due to any neglect by the person :
paragraph 74(3)(c). Paragraph 74(3)(d) enables the court to also give leave to
apply if there are other special grounds for granting the
leave.
Clause 75 Giving notice of matters relevant to an
application
Clause 75 provides that an applicant for an exclusion
order must give the DPP written notice of the application and the grounds on
which the order is sought. The DPP may appear and adduce evidence at the
hearing of the application for the exclusion order. Subclause 75(2) provides
that the DPP must give the applicant notice of any grounds on which it proposes
to contest the application. However, the DPP does not have to give notice of
the grounds until it has had a reasonable opportunity to examine the applicant
under Part 3-1.
Clause 76 When an application can be
heard
Clause 76 provides that an application for an exclusion order
must not be heard until the DPP has had a reasonable opportunity to examine the
applicant under Part 3-1.
Subdivision C – Compensating for
the proportion of property that did not involve proceeds of an
offence
Clause 77 Making compensation
orders
Clause 77 ensures that where property forfeited as proceeds
under a forfeiture order was acquired with both the proceeds of an offence and
legitimately obtained funds, the owner of the forfeited property is properly
compensated for that legitimately obtained part of the property.
For
this to occur, the court must be satisfied that when the property first became
proceeds of an offence, a proportion of the value of that property was not
acquired using the proceeds of any offence. Once the court is satisfied of this
(on the civil standard), the court is compelled to make a compensation order :
subclause 77(1).
The order must specify the proportion of the value of
that property that was not acquired using the proceeds of any offence, and
direct the Commonwealth to dispose of the property and pay the applicant that
proportion of the sum received after the costs and disbursements of the OT are
paid.
For example, if the forfeited property was a $200 000 house which
had been obtained with $150 000 from the proceeds of an offence and $50 000 from
legitimately obtained income, the person would be entitled to 25% of the value
of the house. After the house is disposed of and the costs etc of the OT have
been met (as set out in paragraph 70(1)(b)), the person would be entitled to
compensation equal to 25% of the net amount.
Clause 78 Applying for
compensation orders
Clause 78 provides that a person whose property
is specified in a forfeiture order may apply for a compensation order but the
person must apply for the compensation order within six months after the
forfeiture order was made or obtain leave from the court to apply for the
compensation order.
Clause 79 Giving notice of matters relevant to
an application
Clause 79 provides that an applicant for a
compensation order must give written notice to the DPP of the application and
the grounds on which the order is sought. The DPP may appear and adduce
evidence at the hearing of the application. The DPP must give the applicant
notice of the grounds on which it proposes to contest the
application.
DIVISION 6 – THE EFFECT ON FORFEITURE
ORDERS OF CONVICTIONS BEING QUASHED
Clause 80 Forfeiture order made under section 47 or 49 unaffected by acquittal or quashing of conviction
Where a civil-forfeiture order is made against a person in respect of a particular offence, the person’s conviction of that offence and subsequent quashing of that conviction does not affect the forfeiture order. Similarly, if a person has been charged with that offence and is acquitted, the acquittal does not affect the forfeiture order. This applies to both civil forfeiture based on conduct constituting a serious offence (clause 47) and civil forfeiture based on conduct constituting an indictable offence where there is an identified suspect and offence (clause 49).
Clause 81 Discharge of forfeiture order made under section 48 on quashing of conviction
Clause 81 provides that a conviction-based forfeiture order (made under
clause 48) is discharged 14 days after the subsequent quashing of the conviction
unless the DPP has applied for an order confirming the forfeiture within that
time. If the DPP makes such an application, the forfeiture order is not
affected by the quashing of the conviction until that application is
determined.
Clause 82 requires the DPP to give written notice of the application for
confirmation of the forfeiture order to the person whose conviction was quashed,
to any person who claims or claimed an interest in the property prior to the
forfeiture, and to any other person who the DPP reasonably believes may have had
an interest in the property prior to the forfeiture. A court may also direct
the DPP to publish notice of the application in a specified time and
manner.
Clause 83 enables any person claiming an interest in the property covered
by the forfeiture order to appear and adduce evidence at the hearing of the
application for confirmation of that order. The clause also empowers the court
determining the application to have regard to the transcript of proceedings
against the person for the offence, and any evidence given in those proceedings,
of which the person was convicted.
Clause 84 empowers a court, on the application of the DPP, to confirm the
forfeiture order relating to a conviction which has been quashed if it is
satisfied that it could have made a civil forfeiture order in relation to either
the person or the property under clause 47 or clause 49.
Clause 85 sets out the effect of the court’s decision to confirm or not confirm a forfeiture order.
If the court confirms that forfeiture order on the basis that it could have made a civil-forfeiture order based on conduct constituting a serious offence in relation to the offence for which the person’s conviction has now been quashed, subclause 85(1) provides that the entire forfeiture order is not affected by the quashing.
However, if the court confirms the forfeiture order on the ground that it could have made an civil forfeiture order based on conduct constituting an indictable offence in relation to the particular offence, the forfeiture order remains in force only to the extent that it covers the proceeds of that offence. If the order covers other property, it is discharged in relation to that property.
Subclause 85(3) provides that where the court declines to confirm the forfeiture order, the entire order is discharged.
Clause 86 Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture order
Clause 86 prevents the Official Trustee from dealing with property forfeited under a forfeiture order between the date of the quashing of the conviction to which the forfeiture order relates and the determination of an application for confirmation of that order.
DIVISION 7 - MISCELLANEOUS
Clause 87 Giving notice if a forfeiture order is discharged on appeal or by quashing of a conviction
Where a forfeiture order relating to particular property is discharged, clause 87 requires the DPP to give written notice of that discharge to anyone the DPP believes had an interest in that property prior to the forfeiture order being made. In addition, the court may direct the DPP to publish notice to a specified person or class or persons, or in a specified time and manner. The notice must advise the person of their right to apply for the transfer of the interest or its value.
Clause 87 applies whether the forfeiture order was discharged on appeal against the order, or wholly or partly discharged due to the conviction of which the order was made being quashed : paragraphs 87(1)(a)-(c).
Where a forfeiture order is discharged on appeal or by the quashing of a
conviction, clause 88 requires the Minister to arrange for the return of
interests in property forfeited under a forfeiture order. If the interest is no
longer vested in the Commonwealth (and thus cannot be returned) the Minister is
required to arrange for the payment to the person of an amount equal to the
value of the person’s interest.
Clause 89 Person with
interest in forfeited property may buy back the interest
Where the court has ordered the transfer of an interest in forfeited property to a person pursuant to clause 57, clause 89 facilitates the return of that property upon payment by the person to the Commonwealth of the value of that interest. This clause is based on subsections 33(2), (3) and (4) of the Proceeds of Crime Act 1987, and equates to clause 105 in relation to automatic forfeiture.
Clause 90 Buying out other interests in forfeited property
Clause 90 enables a person who has had an interest in forfeited property returned to him or her (either as a result of an order of the court under clause 88(1) or clause 89, or a direction under sub-paragraph 73(2)(c)) to purchase other interests in the property which remain forfeited if the previous owner of each of those interests does not object upon being given 21 days notice. This clause equates to clause 106 in relation to automatic forfeiture.
PART 2-3 – FORFEITURE ON CONVICTION OF A SERIOUS
OFFENCE
Clause 91 Simplified outline of this Part
This clause
gives a basic outline of the ‘automatic forfeiture’ provisions,
which apply on a conviction of a serious offence, contained in this Part of the
Bill.
DIVISION 1 – FORFEITURE ON CONVICTION OF A SERIOUS
OFFENCE
This Division provides for automatic forfeiture of restrained
property, on the conviction of a person of a serious offence, without the
necessity of a court order.
Clause 92 Forfeiting restrained
property without a forfeiture order if a person has been convicted of serious
offence
Clause 92 provides for the forfeiture of restrained property without a forfeiture order in certain circumstances (‘automatic forfeiture’).
Automatic forfeiture can only occur where the suspect has been convicted of a serious offence. In addition, to be liable to forfeiture the property must be either the subject of a restraining order, or the subject of a restraining order which was fully or partially revoked upon the provision of security or an undertaking pursuant to clause 44. The restraining order does not need to have been in place at the time of conviction, and provided the restraining order was made in relation to the person convicted of the offence, the property may be the property of that person or a third person.
Automatic forfeiture occurs at the end of the period of six months from the date of conviction. However, that time limit may be extended under clause 93.
The automatic forfeiture provisions do not apply to a person who has been convicted of the offence by virtue of having absconded as mentioned in paragraph 331(1)(d).
Under subclause 92(5) the restraining order does not have to have been made in relation to the specific offence of which the person was convicted. It is sufficient if it was made in relation to a related offence of which the person had been, or was proposed to be, charged at the time of the making of the order. This clause ensures that where a restraining order is made in the early stages of proceedings against a person in order to prevent dissipation of assets a new order does not have to be made if the offence with which the person is ultimately charged, or the charges which are ultimately proceeded with against the person, differ from those on which the restraining order was based, provided they relate to the same criminal activities or conduct.
Subclause 92(6) addresses the situation where a restraining order that covered particular property is revoked or particular property is excluded but the security or undertaking in connection with the revocation or exclusion remains in force. This clause provides that the property is taken, for the purposes of clause 92, to be covered by the restraining order.
Clause 93 Making an extension order extending the period before property is forfeited
Clause 93 enables a person to apply for an order extending the six month period after which automatic forfeiture will occur. The person must make an application within six months from the day of the conviction, must have applied to have the property excluded from the restraining order under clause 31, and must satisfy the court that he or she made the clause 31 application diligently and without undue delay. This requirement ensures that the provision is relied upon only where there is a genuine case for the exclusion of the property, rather than as a delaying tactic.
The court may grant an extension of nine months, giving a total of 15 months from the date of conviction. The extension period ends upon the final determination of the clause 31 application.
Subclause 94(1) enables the person who has been convicted of a serious offence, and whose property has been restraining in relation to that offence, to apply for an order excluding particular property from automatic forfeiture under clause 92. Such an application can be made at any time during the duration of the restraining order. The court can make the order if satisfied that the property is neither proceeds nor an instrument of unlawful activity and that the defendant’s interest in the property was lawfully acquired. The restraining order will remain in force in respect of the property to preserve it against the contingency that a pecuniary penalty order is made in respect of the property. This clause is based on subsection 48(4) of the Proceeds of Crime Act 1987.
Subclause 94(2) provides additional clarification of the exclusion provisions. An order to exclude property under clause 94 cannot be made if that property has already been forfeited under Part 2-3. The court may make a declaration that particular property has been forfeited (see below at Clause 94A.)
Subclauses 94(3), (4) and (5) require the applicant to give the DPP notice, empower the DPP to appear and adduce evidence at the hearing of the application, and require the DPP to give the applicant notice of the grounds on which it proposes to contest the application.
Clause 95 Court may declare that property has been forfeited under this
Part
This clause permits the court to declare that particular
property has been forfeited under Part 2-3 if the DPP applies to the court for
the declaration and the court is satisfied that the property is in fact
forfeited under this Part.
Clause 96 When is property forfeited – general rule
Clause 96 provides that property which is automatically forfeited under clause 92 vests absolutely in the Commonwealth at the time of forfeiture. Clause 96 is based on subsection 30(2) of the Proceeds of Crime Act 1987.
This clause provides an exception to the rule in clause 96 for
registrable property. If property specified in the forfeiture order is
registrable property, the property vests in equity in the Commonwealth but does
not vest in the Commonwealth at law until the registration requirements have
been completed. Paragraph 97(1)(b) gives the DPP power to do, on behalf of the
Commonwealth, anything necessary or convenient to give notice of or protect the
Commonwealth’s equitable interest in the property. Paragraph 97(1)(c)
provides that the Commonwealth is entitled to be registered as owner of the
property. Paragraph 97(1)(d) provides that the Official Trustee has power on
behalf of the Commonwealth to do anything necessary or convenient to obtain the
registration of the Commonwealth as the owner. The Official Trustee’s
powers under this paragraph include executing any instrument required to be
executed by a person transferring an interest in property of that kind :
subclause 97(3).
Subclause 97(2) ensures that any action by the DPP to
protect the Commonwealth’s interest in the property is not taken to be a
dealing with the property for the purposes of subclause 99(1). Subclause 97(1)
prescribes when the Commonwealth can begin to deal with forfeited property.
This clause is based on subsections 30(3) and (3A) of the Proceeds of Crime Act 1987.
Clause 98 Second exception – if a joint owner dies
This clause provides a second exception to the rule in clause 96 (when property vests in the Commonwealth). The exception applies where a person who is convicted of a serious offence is a joint owner of property which is liable to automatic forfeiture under clause 92, and that person dies before forfeiture occurs (ie the person dies before the end of the period set out in 92(3), at which time the property is automatically forfeited).
If at the end of the relevant period the property would have been forfeited under clause 92, clause 98 deems it to have vested in the Commonwealth immediately before the death of the person.
Clause 99 When can the Commonwealth begin dealing with forfeited property?
Clause 99 prevents the Commonwealth disposing of, or otherwise dealing with
property forfeited under clause 92, until either the appeal period in relation
to the conviction has expired without the lodging of an appeal, or an appeal
which was lodged within that period has been finally determined without the
conviction having been quashed. This clause is based on sections 30(4), (8) and
(9) of the Proceeds of Crime Act 1987.
Clause 100 enables the Official Trustee to realise property on behalf of
the Commonwealth. Subclause 100(1) provides that the Official Trustee
(on the Commonwealth’s behalf) must, as soon as practicable, dispose of
any forfeited property that is not money and apply any amount received from that
disposal, and any forfeited money to payment of its remuneration, costs charges
and expenses in connection with the disposal and with any restraining order that
covered the property and pay the balance to the Reserve in accordance with
clause 296. The clause is based on subsection 30(4) of the Proceeds of
Crime Act 1987.
Subclause 100(2) provides that, where the Official
Trustee is required to deal with property but has not yet begun, the Minister or
a senior Departmental officer authorised for the purposes of the
subclause may direct that the property be alternatively disposed of or otherwise
dealt with. Such a direction may be that property be disposed of in accordance
with provisions of a specified law. That means that under subclause 100(2) the
Minister retains a power to direct that forfeited property be disposed of in
some particular way, for example that it be made available for use by a law
enforcement agency for operational purposes but ultimately sold and the proceeds
paid into the Confiscated Assets Account. That subclause adopts a similar
provision to subsections 30(4A) and (5) of the Proceeds of Crime Act
1987.
Clause 101 enables the Minister to give directions in relation to the
realisation and registration of forfeited property. This clause is based on
subsections 30(6) and (7) of the Proceeds of Crime Act 1987.
Clause 102 Court may make orders relating to transfer of forfeited
property etc.
Clause 102 enables a court to make an order declaring
the nature, extent and value of the interest of an applicant under clause 92 (a
person who has made an application to have property excluded from forfeiture
after forfeiture has occurred), and to direct the Commonwealth to transfer the
interest back to the applicant if it is still vested in the Commonwealth, or to
pay the applicant an amount equal to the value of that interest if it is no
longer vested in the Commonwealth.
Such an order may be made where the
court is satisfied either that the applicant was not involved in the commission
of the offence and (if the property was acquired during or after the commission
of the offence) that the interest in property was obtained for sufficient
consideration and without knowledge or grounds for reasonable suspicion that the
property was the proceeds of or an instrument of the offence. An order may also
be made under clause 102 if the property was not used in or derived from
unlawful activity, the applicant’s interest was lawfully acquired and the
applicant is not the person convicted of the offence to which the forfeiture
relates.
This clause is based on subsection 31(6) of the Proceeds of
Crime Act 1987.
Clause 103 enables a court to make an order declaring the nature, extent
and value of the interest of an applicant under clause 104 (a person who has
made an application to have property excluded from forfeiture after forfeiture
has occurred), and permitting that person to buy back property which has been
forfeited under clause 92 on payment to the Commonwealth of an amount equal to
the value of that property. Such an order may be made where the court is
satisfied that it would not be contrary to the public interest, and there is no
other reason why the interest should not be so transferred. This clause is
based on subsection 31(7) of the Proceeds of Crime Act 1987.
Clause 104 provides that a person whose property has been forfeited under
clause 92 must apply to the court within six months of the forfeiture (or such
longer period as the court allows) for an order under clauses 102 or 98103.
Such an application may be made by either the person convicted of the offence or
a third party whose property is forfeited. The court may grant leave to apply
after the end of the period if the court is satisfied that the delay in making
the application is not due to neglect on the part of the applicant.
A
person who was given notice of either the application for, or the making of, the
relevant restraining order can only appear with the leave of the court. Again,
the court may only grant that leave if it is satisfied that the person’s
failure to seek to have the property excluded from the order was not due to his
or her neglect.
The time restrictions in this clause ensure that, where
possible, the restraining order is challenged and interests in property are
determined, before forfeiture. This clause is based on subsections 31(1), (2),
(3), (4) and (5) of the Proceeds of Crime Act 1987.
Clause 105 facilitates the return to a successful applicant for an order
under 103 of property which the court has ordered be transferred to that person,
which remains vested in the Commonwealth, upon payment of the value of that
interest. This clause is based on subsections 33(2), (3) and (4) of the
Proceeds of Crime Act 1987, and equates to clause 89 in relation to
forfeiture orders under Part 2-2.
Clause 106 enables a person who has had an interest in forfeited property
returned to him or her (either as a result of an order of the court under clause
105 or under an order under clause 102) to purchase other interests in the
property which remain forfeited if the previous owner of each of those interests
does not object upon being given 21 days notice. This clause equates to clause
90 in relation to forfeiture orders under Part 2-2.
Clause 107 The effect on forfeiture of convictions being
quashed
Clause 107 provides that an automatic forfeiture of property
under clause 92 ceases to have effect 14 days after the quashing of the
conviction to which the restraining order relates unless the forfeiture relates
to other convictions which have not been quashed, and unless the DPP applies for
an order confirming the forfeiture within that time. If the DPP makes such an
application, the forfeiture is not affected by the quashing of the conviction
until that application is determined.
Clause 108 Notice of
application for confirmation of forfeiture
If the DPP applies for
confirmation of the forfeiture, written notice must be supplied to the person
whose conviction was quashed, any person who claims, or has claimed, an interest
in the forfeited property and any person who the DPP believes may have had an
interest in the forfeited property prior to the forfeiture.
In addition,
the court may direct the DPP to provide notice of the application to a specified
person or class of persons. The court may make this direction at any time
before the application is determined; the court may also specify the time and
manner of publication of the notice.
Clause 109 enables any person claiming an interest in the forfeited
property to appear and adduce evidence at the hearing of the application for
confirmation of the forfeiture, and empowers the court determining the
application to have regard to the transcript of proceedings against the person
for the offence, and any evidence given in those proceedings, of which the
person was convicted.
Clause 110 empowers a court, on the application of the DPP, to confirm
the forfeiture relating to a conviction which has been quashed if it is
satisfied that it could make a civil forfeiture order in relation to either the
person or the property under either clause 47 or clause 49 if the DPP were to
apply for an order under either of those clauses.
Clause 111 sets out the effect of the court’s decision to confirm or not confirm a forfeiture.
If the court confirms that forfeiture on the basis that it could have made a civil-forfeiture order based on conduct constituting a serious offence in relation to the offence for which the person’s conviction has now been quashed, subclause 111(1) provides that the entire forfeiture is not affected by the quashing.
However, if the court confirms the forfeiture on the ground that it could have made a civil forfeiture order based on conduct constituting an indictable offence in relation to the particular offence, the forfeiture remains in force only to the extent that it covers the proceeds of that offence. If the forfeiture covers other property, it is discharged in relation to that property.
Subclause 111(3) provides that where the court declines to confirm the forfeiture, the forfeiture is discharged.
Clause 112 Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture
Clause 112 prevents the Official Trustee from dealing with property forfeited under clause 111 between the date of quashing of the conviction to which the forfeiture relates and the determination of an application for confirmation of the forfeiture.
Clause 113 Giving notice if forfeiture ceases to have effect on quashing of a conviction
Clause 113 requires the DPP to give written notice of a forfeiture ceasing to
have effect on the quashing of a conviction (either because the DPP has not made
an application for confirmation of forfeiture within 14 days of the quashing of
the conviction, or because a court has declined to confirm the forfeiture), to
any person the DPP reasonably believes may have had an interest in that property
immediately before the forfeiture, or to publish notice in a specified time and
manner, if required to do so by a court. The notice must advise the person of
their right to apply under clause 114 for the transfer of the interest or its
value.
Where automatic forfeiture ceases to have effect under clause 107 or 111,
clause 114 requires the Minister to arrange for the return of interests in
property forfeited under clause 92. If the interest is no longer vested in the
Commonwealth (and thus cannot be returned) the Minister is required to arrange
for the payment to the person of an amount equal to the value of the
person’s interest.
PART 2-4 - PECUNIARY PENALTY
ORDERS
Clause 115 Simplified outline of this
Part
This clause gives a basic outline of the pecuniary penalty order
provisions, which can apply whether or not a person has been convicted of an
offence, contained in this Part of the Bill.
DIVISION 1 – MAKING
PECUNIARY PENALTY ORDER
Clause 116 Making pecuniary penalty
orders
Subclause 116(1) empowers a court to make a pecuniary penalty
order (PPO) in certain circumstances. A PPO is an order that requires a person
to pay an amount of money to the Commonwealth, where the court is satisfied that
the person has derived a benefit from the commission of an indictable offence.
Under paragraph 116(1)(a), only the DPP can apply to the court for a
PPO.
To make a PPO, the court must be satisfied either that the person
has been convicted of an indictable offence and has derived benefits from the
commission of that offence, or that the person has committed a serious offence:
paragraph 116(1)(b). Unless the serious offence in question is a terrorism
offence, the court must be satisfied that the offence was committed within the
six years preceding either the application for the PPO or the application for
the restraining order.
In assessing whether the person has derived a
benefit, subclause 116(2) enables the court to take into account property that
the court considers is under the effective control of the person against whom
the PPO is sought. A PPO may be sought and made even if another confiscation
order has been made in relation to the offence.
Clause 117 Pecuniary
penalty orders made in relation to serious offence convictions
This
clause establishes when a PPO may be made against a person in relation to the
person’s conviction for a serious offence.
Subclause 117(1)
prohibits a court from making a PPO within six months of the person’s
conviction. This time enables appellate procedures to take place, and is the
same period that must lapse before automatic forfeiture can occur under clause
92.
Subclause 117(2) establishes an exception to the rule in subclause
117(1). If the court before which the person was convicted has proceeds
jurisdiction, the court may make a pecuniary penalty order in relation to the
person’s conviction when it passes sentence on the person. Such an order,
however, cannot be enforced for six months.
Subclause 117(3) provides
that the rule in subclause 117(1) does not apply where the conviction of the
person for the serious offence is a deemed conviction pursuant to paragraph
331(1)(d). That paragraph deems a person who has absconded prior to the hearing
of the offence with which they were charged to have been convicted of that
offence. The procedure for making a PPO against such a person is set out in
clause 118.
Clause 118 Making of pecuniary penalty order if person
has absconded
Clause 118 imports two additional elements of which the
court must be satisfied before a PPO can be made against a person deemed to have
been convicted of an indictable offence by virtue of the operation of paragraph
331(1)(d).
First, the court must be satisfied, to the civil standard,
that the person did abscond (as defined) in connection with the indictable
offence: paragraph 118(a).
Secondly, either of the elements set out in
paragraph 118(b) must occur: the person must have been committed for trial for
the offence, or the court hearing the application for the PPO must be satisfied
that on the available evidence a reasonable jury could lawfully find the person
guilty of the offence.
This ensures that a PPO is made only after a
court has assessed the evidence of the offence, thus preventing a PPO being made
in circumstances where there was insufficient evidence to require the person to
stand trial for the offence.
Clause 119 Ancillary
orders
This clause enables a court to make an order ancillary to a
PPO, at either the time the order is made or at a later time.
Clause
120 Acquittals do not affect pecuniary penalty orders
This clause
makes clear that the mere fact a person has been acquitted of an offence with
which he or she has been charged does not affect the court’s power to make
a pecuniary penalty order in relation to the offence.
DIVISION 2
– PENALTY AMOUNTS
This division sets out the relevant things
that a court will take into account in determining the amount that a person will
be ordered to pay to the Commonwealth pursuant to a PPO.
Subdivision A – General
Clause 121 Determining penalty amounts
Clause 121 sets out
the basic equations which the court must apply to reach the final penalty
amount. A different formulation is used depending on whether the offence is a
serious or non-serious offence.
If the offence to which the order relates
is a non-serious indictable offence, the court must assess the value of the
benefits the person derived from the commission of the indictable offence in
accordance with the matters set out in Subdivision B. The court must then
assess the value of any deductions available to the person pursuant to
Subdivision C, and reduce the value of the benefits gained by the person by that
amount.
If the relevant offence is a serious offence, the same basic
equation is followed. However, the benefits taken into account pursuant to
Subdivision B are not limited to those derived from the particular offence, but
extend to any benefits the person has derived from any unlawful activity within
the period commencing six years before either the application for the PPO or the
application for a restraining order if one is in place, and the date of
determining the penalty amount. In the case of
unlawful activity that constitutes a terrorism offence, however, no defined time
period applies in relation to the benefits derived from the activity; that is to
say, the benefits captured by this provision may have been derived
earlier than the point in time six years prior to the application for the
restraining order or PPO. ‘Unlawful activity’ is defined in Part
6-2 to include state and territory indictable offences, as well as offences
against the laws of a foreign country.
Subdivision B – The
value of benefits derived from the commission of an offence
When assessing any benefit that a person may have derived from the
commission of an indictable offence, subclause 122(1) directs the court to have
regard to any evidence before the court of a number of things. Those are set
out in paragraphs 122(1)(a)-(e).
Pursuant to paragraph 122(1)(a), the
court must have regard to the money that came into the control of the person
from the commission of the offence. Where the person gains property, not money,
from the commission of the offence, the court must look at the value of the
property. As a PPO is a monetary penalty, and does not directly provide for the
forfeiture of property, the court is interested only in the value of the
property, not the actual property per se. This paragraph also enables
the court to have regard to the value of any money or property derived from the
offence that come into the possession of a third party at the request of the
offender.
Pursuant to paragraph 122(1)(b), the court must also have
regard to the value of any other benefit that was provided to the person or
third party due to the commission of the offence. This enables the court to
look at the value of any services or other non-monetary benefits or payment in
kind that the person or third party may have received.
Where the indictable offence related to an act or thing done by the person in
relation to a narcotic substance, paragraph 122(1)(c) enables the court to have
regard to both the market value of the narcotic substance, and the value of the
act or thing which the person did. The court assesses the value of the narcotic
and act or thing as at the time of the offence, and is able to base the
valuation on a similar or substantially similar narcotic, or act or thing. In
addition, the court may have regard to a range of amounts ordinarily paid for
the act or thing. The court is given some leeway in those assessments in
recognition of the difficulty of establishing the value of something for which
there is no legitimate market or easily discernible benchmark.
Pursuant
to paragraph 122(1)(d), the court must also have regard to the value of the
person’s property before, during and after the relevant offence. The
court may also have regard to the person’s income and expenditure before
during and after the relevant offence: paragraph 122(1)(e).
Subclause
122(2) allows a police officer or customs officer to testify at the hearing of
the application about the market value of the narcotic substance, and the value
of the act or thing which the person did. The officer must be experienced in
the investigation of narcotics offences, and may testify to the best of his or
her information, knowledge and belief. This provision recognises that there
will often be little or no evidence to which a court can refer in establishing
the value of a narcotic at a particular time, or the value of a person’s
role or involvement in the drug trade
Subclause 122(3) provides that an
officer’s testimony given pursuant to subclause 122(2) is admissible at
the hearing, regardless of the laws or practice relating to hearsay evidence.
In addition, the evidence given by the officer constitutes prima facie evidence
of the matters testified to. If such evidence is given, the person is able to
lead evidence rebutting the testimony of the officer.
Subclause 123(1) sets out how the court is to use evidence that the value
of a person’s property during or after the offence exceeded the value of
the property before the offence, when the offence or none of the offences on
which the application for the PPO is made is not a serious offence.
Where
this occurs, the court must assess the value of the benefits that the person
derived from the commission of the offence (or offences) as being not less that
the amount of the greatest excess.
Subclause 123(2) provides that if
the person can satisfy the court that part of the excess was caused by something
unrelated to the offence, the value of that benefit is accordingly reduced.
This clause applies where an application for a PPO is based on a serious
offence, or if there are a number of offences, at least one of the offences is a
serious offence. In those circumstances, the clause provides a presumption that
where the value of a person’s property during or after the offence or
unlawful activity that constitutes a terrorism offence (no relevant time period
applies) or any other unlawful activity engaged in within a relevant period (the
period commencing six years before either the application for the PPO or the
application for a restraining order if one is in place, and the date of
determining the penalty amount) exceeded the value of the property before the
offence or unlawful activity, the court must assess the value of the benefits
that the person derived from the commission of the offence or unlawful activity
as being not less than the amount of the greatest excess.
Subclause
124(2) provides that if the person can satisfy the court that part of the excess
was caused by something unrelated to the offence or unlawful activity, the value
of that benefit is accordingly reduced.
In addition, where there is
evidence provided to the court regarding the person’s expenditure during
the relevant period, that amount is presumed to be the value of a benefit
provided to that person due to his or her illegal activity.
Subclause 125(1) provides that when the court is assessing the value of a
benefit, the court may assess the benefit at the value it has at the time of the
court making its assessment.
The court may also have regard to any
decline in the purchasing power of money between the time that the benefit was
actually derived, and the time of the assessment being made: subclause
125(2).
Paragraph 126(a) provides that in assessing the benefits accrued by the
person, the court must not reduce the value of the benefits by the expenses or
outgoings that the person incurred in committing the offence or offences from
which the benefits were derived
If the person derived benefits on behalf
of or as agent for another person, those benefits must also not be discounted by
the court.
Clause 127 ensures that a single benefit accrued by a person is not the
subject of two PPOs. Subclause 127(1) provides that if a pecuniary penalty has
been imposed in relation to the particular benefit either under the Act, the
Customs Act 1901, or a State or Territory law, the benefit cannot be
taken into account for the purposes of Subdivision B.
For the purposes of
this clause, the amount payable pursuant to a literary proceeds order under this
Act is a pecuniary penalty.
Clause 128 provides that the court may treat property which it finds to
be under the effective control of the person as the property of that person, for
the purpose of assessing benefits derived from an offence.
Clause 129 enables the court to treat as property of the person property
which was the property of the person, and has vested in certain trustees
pursuant to the Bankruptcy Act 1966. The property is treated as the
property of the person only for the purpose of assessing any benefits which the
person has derived in relation to that property. This provision does not affect
the legal status of the property.
Subdivision C – Reducing
penalty amounts
Clause 130 Reducing penalty amounts to take
account of forfeiture and proposed forfeiture
Where property has been assessed by the court as the benefit of an offence,
and at the time of the making of the PPO, that particular property has already
been forfeited as the proceeds of that same offence, clause 130 provides that
the penalty amount imposed by the PPO must be reduced by the value of that
particular property.
Forfeited property that may be taken into account
is property forfeited under the Act, another law of the Commonwealth or a law of
a Territory. This clause applies equally where an application has been made for
a forfeiture order that would cover the property in question.
Clause 131 provides that where a person has paid tax which is
attributable to the benefits assessed by the court, the court may reduce the
amount to be paid under the PPO by an equivalent amount.
The tax which
may be taken into account by the court may be levied by the Commonwealth, a
State or Territory, or a foreign country.
Clause 132 enables a court, where the court considers it appropriate, to
reduce the amount payable under the PPO by an amount equal to any fine,
restitution, compensation or damages which the person may pay in relation to the
offence.
Subdivision D – Varying pecuniary penalty orders to
increase penalty amounts
Subclause 133(1) provides for the court to vary a PPO by increasing the
penalty amount to be paid. The court may vary the amount only on application by
the DPP, and may only do so in two specified circumstances. The court may
entertain an application by the DPP on both grounds at the same
time.
Subclause 133(2) allows the amount payable under the PPO to be
increased where that amount was initially reduced by the value of particular
property due to the operation of clause 130, and there is a subsequent
successful appeal against the forfeiture order, or the application for
forfeiture fails. (Clause 130 enables the court to reduce the penalty amount if
certain property has already been forfeited or is proposed to be forfeited.)
The amount by which the court can increase the order is equal to the value of
the property.
Subclause 133(3) allows the PPO amount to be increased
where that amount was reduced under clause 131 in relation to tax paid by the
person, and that tax is then repaid or refunded to the person. The court may
increase the order by the amount of tax repaid or refunded.
Providing the
court with this ability to vary the order does not enable the court to increase
the overall penalty amount. Prior to the application of clause 130 or 131, the
property in question had been assessed by the court as a benefit derived by the
person from an offence; the refund of tax or the failure of a forfeiture order
in relation to the same property should not affect that finding by the court.
This clause authorises the DPP to apply for a PPO, and sets out the
requirements of such an application.
As with the other confiscatory
actions, only the DPP may apply for a PPO. An application may be made in
relation to one of more offences committed by the person; an application may
also be made in relation to an offence for which a forfeiture order has been
made or applied for, or to which automatic forfeiture applies.
Where the
application is based on the person’s conviction for an indictable offence,
the DPP must observe the time limitations set out in subclauses 134(2) and (3).
Those limitations require the DPP to bring any application for a PPO within six
months of the conviction day or, if the offence is a serious offence, within
nine months of the date of conviction. In addition, if the offence is a serious
offence and an extension order is in force at the end of the nine-month period,
the DPP must bring the application within three months after the end of the
extended period.
Subclause 135(1) prohibits the DPP from applying, without the leave of
the court, for a PPO in relation to the benefits of an offence if an application
for a pecuniary penalty has already been made and finally determined in respect
of the same benefits. This prohibition applies whether the previous application
was made under this Division, another law of the Commonwealth or a law of a
Territory.
Subclause 135(2) provides that if the DPP seeks the leave of
the court, the court may not grant that leave unless one of the criteria in
paragraph 135(2)(a)-(c) is met. Those criteria are that either the benefit in
respect of which the DPP wishes to apply for a second PPO was only identified
after the determination of the first application; essential evidence only came
to light after the determination of the first application for a PPO; or a second
application for a PPO is in the interests of justice.
Subclause 135(3)
provides that for the purposes of this clause an application for a literary
proceeds order is not an application for a pecuniary penalty.
This clause requires the DPP to provide written notice of the application
for a PPO to the person against whom the order is being sought. In addition,
the DPP must provide a copy of the application for the PPO and any affidavit
along with the notice. Subclause 136(3) provides, however, that the DPP may
delay giving a copy of the affidavit if the court to which the application was
made so orders. The court must not make such an order, however, unless satisfied
that including a copy of the affidavit would prejudice the investigation of, or
the prosecution of a person for, an offence or that it is for any other reason
appropriate to make the order.
Clause 137 establishes how an application for a PPO may be
amended.
Subclause 137(1) provides that the court may amend the
application only on application of the DPP, or with the consent of the
DPP.
If the application for amendment is to include an additional benefit
in the PPO application, subclause 137(3) requires the DPP to provide written
notice of the application (for amendment) to the person against whom the PPO is
being sought.
Subclause 137(2) provides that the court may amend an
application for a PPO to include an additional benefit only where either that
additional benefit was not reasonably capable of identification at the time of
making the original application, or necessary evidence only became available
after the making of the initial application. An example of additional necessary
evidence would be proof that the benefit was derived from the offence on which
the application for a PPO was based.
Clause 138 Procedure on
application
Subclause 138(1) provides for evidence to be given by the
person against whom the PPO is sought at the hearing for the
PPO.
Sub-paragraph 138(2)(a)(i) provides that where the PPO is sought on
the basis of the person’s conviction of an indictable offence, the court
may have regard to the transcripts of proceedings in relation to that offence.
The evidence given in that proceeding may also be taken into account: paragraph
138(2)(b).
Sub-paragraph 138(2)(a)(ii) provides that where the person is
taken to have been convicted of the offence because of the operation of
paragraph 331(1)(c) of the Act, the court may have regard to the transcript of
the proceedings for the ‘other offence’ referred to in paragraph
331(1)(c). Paragraph 331(1)(c) deems a person to have been convicted of an
offence where that offence has been taken into account (with the consent of the
person) at sentencing for another offence; no formal finding of guilt is made in
relation to the offence taken into account. The ‘other offence’ to
which sub-paragraph 138(2)(a)(ii) refers is the offence for which the person was
convicted. The evidence given in that proceeding may also be taken into
account: paragraph 138(2)(b).
Clause 139 enables a court to hear and determine an application for a PPO
made in relation to a person who was convicted of an indictable offence before
that same court. The clause provides that in those circumstances the court may
exercise its powers in relation to the PPO regardless of whether or not the
court is constituted in the same manner it was when the person was convicted of
the indictable offence.
Where a PPO is made against a person for the payment to the Commonwealth
of a specified amount of money, subclause 140(1) provides that that amount is a
debt due by that person to the Commonwealth.
Subclause 140(2) provides
that the PPO may be enforced by the Commonwealth as if it were an order made by
a court to recover a debt due by that person to the Commonwealth.
By operation of subclause 140(4), that debt is taken
to be a judgment debt. If the PPO was made, however, under subclause 117
(2)
(when sentence was being passed on the person), the order cannot be enforced
within six months of being made.
Where the court has made a PPO in relation to a person, the DPP may apply
to the court for an order under clause 141, declaring that all or part of
property within the effective control of that person be made available to
satisfy the PPO. The court may make such an order where it is satisfied that
the property is subject to the effective control of the person.
Subclause 141(2) provides that where the court makes such an order, the
order may be enforced as if the property under the effective control of the
person were the property of that person.
In addition, the court may
make a restraining order over that property: subclause 141(3). The restraining
order may be made as if the property were the property of the person, and the
person had committed a serious offence. This enables the court to restrain all
of the property, whether or not that property is the proceeds or instrument of
the offence.
Subclause 141(4) requires the DPP to provide notice of an
application under this clause to the person in respect of whom the PPO was made,
and any other person who the DPP believes has an entitlement to the property.
Those people may appear at the hearing of the application, and adduce evidence
(subclause 141(5)).
By force of clause 142, where both a PPO and a restraining order are made
against a person, upon the making of the later of the orders a charge is created
over restrained property to secure the payment to the Commonwealth of the PPO.
The restraining order must have been made in relation to the offence on which
the PPO was based, or a related offence.
The charge is created over the
property of the person who is to pay the PPO and any property over which the
court has found the person has effective control (pursuant to clause 141).
There are a number of circumstances, set out in subclause 142(2), in
which the charge may cease to have effect. Some of those circumstances relate
directly to the PPO; others are in relation to the property the subject of the
charge. If the PPO was made in relation to a person’s conviction, and
that conviction is quashed, the charge ceases to have effect upon the PPO being
discharged pursuant to Division 5.
It also ceases where a person
successfully appeals against either the PPO or restraining order, and the
relevant order is discharged by the court. If the person pays out the PPO in
full, the charge ceases to have effect.
Certain sales or disposal of
property also causes the cessation of the charge. The property may be disposed
of by order of the court, by the owner of the property with the consent of the
court or (where appropriate) the OT. 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.
Subclause
142(3) provides that a charge made under this clause is subject to all earlier
encumbrances that would otherwise have priority. For example, if the restrained
property is a house, there may be an earlier mortgage which upon disposal of the
property would be paid out prior to payment of the PPO.
By operation of
paragraph 142(3)(b), the charge has priority over all other encumbrances.
Paragraph 142(3)(c) enables a charge to continue to have effect, despite
any change in ownership of the property. However, this is subject to the
matters set out in subclause 142(2). For example, if the property was sold to a
third person who paid sufficient consideration, had no knowledge that the
property was subject to the charge, and otherwise acted in good faith, the
charge would be affected by the change in ownership by virtue of paragraph
142(2)(f). However, if the person did know of the charge, then the conditions
of paragraph 142(2)(f) would not be met, and subclause 142(3) would apply. The
property would remain subject to the charge, and may be disposed of to satisfy
the PPO.
Clause 143 provides that where the Commonwealth, a State or Territory has
a system of registration for certain types of property the DPP may apply for a
charge created by clause 142 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.
The most
likely property to be registered will be real property; however, motor
vehicles, boats and many other types of property also have relevant registration
systems.
The clause provides for the recovery of the amount specified in a PPO in
circumstances where the court that made the relevant order does not have the
jurisdiction to recover that amount.
Pursuant to subclause 144(1),
where a court makes an order that it does not have the jurisdiction to enforce,
the registrar of that court must issue a certificate in accordance with the
regulations.
Subclause 144(2) specifies that the certificate may then be
registered in a court which has jurisdiction in relation to the recovery of the
amount of the PPO. The certificate must be registered in accordance with the
regulations.
Once the certificate is registered, it is enforceable as a
final judgment of that court: subclause 144(3)
DIVISION 5 – THE
EFFECT ON PECUNIARY PENALTY ORDERS OF CONVICTIONS BEING
QUASHED
Clause 145 Pecuniary penalty order unaffected if not made
in relation to a conviction
Clause 145 provides that where a PPO is
not made on the basis that a person was convicted of an offence, the conviction
of that person for the offence, and subsequent quashing of that conviction does
not effect the operation of the PPO.
This clause operates even if the
conviction which is quashed is in respect of the same offence or conduct upon
which the PPO is based.
Clause 146 Discharge of pecuniary penalty
order if made in relation to a conviction
This clause provides for
the discharge in certain circumstances of a PPO made in relation to a
person’s conviction for an indictable offence. Subclause 146(1) sets out
what happens when the conviction was for a serious offence; subclause 146(2)
sets out what happens when the conviction was for an indictable offence that is
not a serious offence.
Under subclause 146(1) a PPO made in relation to a
person’s conviction of a serious offence may be discharged where the
person’s conviction was quashed after the making of the PPO, and the DPP
does not apply to the court for the order to be confirmed. The DPP may make
such an application to the court within fourteen days of the conviction being
quashed.
If the DPP does make an application for confirmation of the PPO,
the PPO remains unaffected by the quashing of the conviction unless and until
the court determines the application. Unless the court determines otherwise,
the PPO remains unaffected for the fourteen days following the quashing.
Under subclause 146(3) a PPO made in relation to a person’s
conviction of an offence that is not a serious offence may be discharged where
the person’s conviction was quashed after the making of the
PPO.
The DPP cannot apply to have the PPO confirmed where the offence was
not a serious offence. It is only where the offence is a serious offence that
the court may have made the PPO based on ‘reasonable grounds to
suspect’, which is the basis on which the court may confirm the order
under clause 149. (See clause 116 for the grounds on which a PPO may be
sought.)
This clause requires the DPP to supply the person whose conviction has
been quashed with notice in writing of the application for confirmation of the
PPO.
Clause 148 Procedure on application for confirmation of
pecuniary penalty order
This clause sets out who may appear at the
hearing of the application for confirmation of the PPO, and to what evidence the
court may have regard.
The person whose conviction has been quashed may
appear at the hearing of the DPP’s application for confirmation of the
PPO, and may adduce evidence at that hearing: subclause 148(1).
Subclause 148(2) provides that the court may consider the transcript of the
proceedings for the offence which has been quashed, as well as the appellate
proceedings relating to that offence. If the person was taken to have been
convicted of the offence because of the operation of paragraph 331(1)(c), the
court may also take into account the transcript of proceedings for the
‘other offence’ referred to in paragraph 331(1)(c). Paragraph
331(1)(c) deems a person to have been convicted of an offence where that offence
has been taken into account (with the consent of the person) at sentencing for
another offence; there is no formal finding of guilt in relation to the offence
taken into account. The ‘other offence’ is the offence for which
the person was formally convicted; it is the transcript of the proceedings for
that offence (along with the transcript of appellate proceedings) to which the
court may have regard.
Paragraph 148(2)(b) provides that the court may
also have regard to any evidence given in either of those proceedings.
Clause 149 enables the court to confirm the PPO where the court is
satisfied that at the time the DPP applied for the PPO, the court could have
made the order on the basis that there were reasonable grounds to suspect that
the person had, within the last six years, committed the offence (on which the
original PPO was based). If the relevant offence is a terrorism offence,
however, no time period applies in relation to its commission.
The
court must be satisfied that it could have made the order based only on the
reasonable grounds test, and without any reliance on the fact of the
person’s conviction for that offence.
Clause 150 Effect of court’s decision on confirmation of pecuniary penalty order
Clause 150(1) establishes that where the court confirms the PPO on
application by the DPP, the order is not affected by the quashing of the
conviction.
Pursuant to clause 150(2), where the court does not grant
the application for confirmation of the PPO, the PPO is discharged.
Clause 151 Simplified outline of this Part
This clause
gives a basic outline of when a literary proceeds order can be made under Part
2-5.
This Division empowers a court to make a literary proceeds orders in
particular circumstances, defines literary proceeds and gives courts a
discretion as to whether or not to make such orders.
Subclause 152(1) empowers the court to make a literary proceeds order
against a person who has been convicted of an indictable offence or a foreign
indictable offence, or in relation to whom there are reasonable grounds to
suspect that he or she has committed an indictable offence or a foreign
indictable offence, who has derived literary proceeds in relation to the
offence. This clause ensures that literary proceeds orders will be available
only against persons who were parties to the offence. Other persons involved in
the publication, for example publishers or film-makers who, in good faith and
for valuable consideration, benefit from the publication of the product, will
not be liable to such orders. ‘Foreign indictable offence’ is
defined in Part 6-2 and ‘literary proceeds’ is defined in clause
153.
Subclause (2) empowers the court, on the application of the DPP,
to make an order requiring a person who has been convicted of, or who is
suspected on reasonable grounds to have committed, a foreign indictable offence,
to pay an amount to the Commonwealth if the court is satisfied that the person
has derived literary proceeds in relation to the offence in Australia.
A
court may make a LPO in relation to an offence even if there is another
confiscation order which relates to that offence in force.
By operation
of clause 14 of the Act, a literary proceeds order is available whether or not
the relevant offence occurred before or after the commencement of this
legislation. However, a LPO cannot be made in relation to literary proceeds
derived prior to the commencement of this Act : subclause 152(3)
The
effect of subclauses 152(1), (2), (3) and (4) is that a literary proceeds order
is to be available where a person, at any time after the commencement of the
legislation, derives a benefit from the publication of any material concerning
the circumstances of an indictable offence committed by that person whether or
not he or she was charged with or convicted of the offence, and whether or not
the offence occurred before or after commencement of the legislation. The
offence must either have been committed in Australia, or the proceeds must have
been derived in Australia, but both conditions are not required.
Clause 153 defines ‘literary proceeds’ to be any benefit that
a person derives from the commercial exploitation of his or her notoriety, or
the notoriety of his or her accomplice, resulting from the person’s
involvement in the commission of an indictable offence or a foreign indictable
offence.
Subclause 153(2) states that such exploitation may take the
form of a written or electronic publication, (which would include books,
newspapers, magazines, world wide web, or other written or pictorial matter),
any media from which visual images or words or sounds can be produced (which
would include radio, film, video or television productions, compact discs,
tapes, world wide web), or any live entertainment, representation or interview.
That list is not exhaustive. It is intended that a court may find that a person
has commercially exploited their involvement in an indictable offence by any
other means where the marketability of the product generating those benefits is
related to the person’s involvement in the commission of an indictable
offence or a foreign indictable offences committed by the person.
Subclause 153(3) empowers a court to regard as literary proceeds any
benefits derived from the commercial exploitation of a person’s
involvement in a Commonwealth indictable offence, whether or not that commercial
exploitation took place in Australia. In relation to a foreign indictable
offence, the commercial exploitation must have taken place in Australia –
that is, the benefits must have been derived in Australia.
Subclause
153(4) empowers a court which is determining whether a person has received
literary proceeds or the value of those proceeds to regard money or the value of
property which is under the effective control of that person, or which has been
paid or transferred to another person at the request or direction of that
person, as property of that person.
Clause 154 Matters taken into
account in deciding whether to make literary proceeds orders
To
ensure that no injustice is perpetrated by the enactment of these provisions,
clause 154 provides courts determining applications for literary proceeds orders
with a wide discretion whether or not to make such an order. Courts may take
into account any matters which they see fit, and may look at such questions as
the nature and purpose of the publication, whether the publication was in the
public interest (for example whether it had any rehabilitative or deterrent
value), whether the publication had any social, cultural or educational value,
the seriousness of the offence, and the time which has elapsed since the
commission or alleged commission of the offence.
Clause 155 makes it clear that more than one literary proceeds order can
be made under this Division in relation to the same offence. Thus, the DPP can
apply for a literary proceeds order on each and every occasion on which it is
considered that there has been a commercial exploitation of the person’s
involvement in an indictable offence.
Clause 156 Ancillary
orders
This clause enables a court to make an order ancillary to a
LPO, at either the time the order is made or at a later time.
Clause
157 Acquittals do not affect literary proceeds orders
This clause
makes clear that the mere fact a person has been acquitted of an offence with
which he or she has been charged does not affect the court’s power to make
a literary proceeds order in relation to the offence.
This Division sets out how the quantum of a literary proceeds order is to
be determined by a court dealing with an application for such an
order.
Clause 158 Determining literary proceeds
amounts
Clause 158 provides courts with a wide discretion as to the
quantum of a literary proceeds order, subject to a maximum amount and certain
deductions under clauses 159 and 160. This provision ensures that the literary
proceeds order may relate to any or all of the identified proceeds by giving the
court a discretion to treat as literary proceeds any profits derived from the
publication of any material concerning the circumstances of an indictable
offence committed by the person, or any material concerning the person’s
criminal activities.
Subclause 158(2) empowers the court assessing the
quantum of a proposed literary proceeds order to take into account the
total amount of literary proceeds derived in relation to the offence from
previous commercial exploitations of the person’s involvement in that
offence.
Subclause 158(3) specifically empowers courts determining the
quantum of literary proceeds orders to have regard to the evidence adduced in
any trial for the offence and the sentencing transcript, if any. This is
similar to the existing procedure in relation to the making of confiscation
orders under section 18 of the Proceeds of Crime Act 1987.
As the proposed order is directed at profits rather than at the total
benefit received from the commercial exploitation of a person’s
involvement in an indictable offence, paragraph 159(a) requires a court
assessing the quantum of a proposed literary proceeds order to deduct from the
proceeds derived any expenses and outgoings incurred in the receipt of the
literary proceeds (for example, legal fees associated with deriving those
proceeds). It is not intended that legal fees associated with defending the
application for forfeiture of literary proceeds are to be deducted under this
provision.
Paragraph 159(b) and (c) further require a court assessing
the quantum of a proposed literary proceeds order to deduct from the proceeds
derived any confiscation of such profits which has already occurred under the
Proceeds of Crime Act 1987 or this Act, under section 243B of the
Customs Act 1901, or under an interstate or foreign forfeiture order or
pecuniary penalty order to the extent that such confiscation relates to literary
proceeds, and any tax paid in respect of such. These subclauses mirror the
existing provisions of section 27 of the Proceeds of Crime Act 1987 in
relation to the making of pecuniary penalty orders.
Paragraph 159(d)
also requires the court assessing the quantum of a proposed literary proceeds
order to deduct the amount of any previous literary proceeds order made
against the person in relation to the same exploitation of his or her notoriety
from committing the offence in question. This subclause refers to the
situation where a person has been the subject of previous literary proceeds
orders in relation to his or her involvement in that offence. As all the
literary proceeds made by the person are taken into account under clause 158,
this clause ensures that specific literary proceeds are not effectively
confiscated twice.
Clause 160 Reducing literary proceeds amounts to
take account of tax paid
Clause 160 enables a court assessing the
quantum of a proposed literary proceeds order to deduct from the amount
received the amount of any Commonwealth, State or foreign taxes paid which, in
the opinion of the court, are attributable to the benefits being assessed. This
subclause mirrors the existing provisions of subsection 27(4) of the Proceeds
of Crime Act 1987 in relation to the making of pecuniary penalty orders.
Clause 161 Varying literary proceeds orders to increase
literary proceeds amounts
Subclause 161(1) provides for the court to
vary a LPO by increasing the penalty amount to be paid. The court may vary the
amount only on application by the DPP, and may only do so in three specified
circumstances. The court may entertain an application by the DPP on both
grounds at the same time.
Subclause 161(2) allows the amount payable
under the LPO to be increased where that amount was initially reduced by the
value of particular property due to the operation of paragraph 159(b), and there
is a subsequent successful appeal against the forfeiture order. (Paragraph
159(b) enables the court to reduce the literary proceeds amount if certain
property has already been forfeited or is proposed to be forfeited.) The amount
by which the court can increase the order is equal to the value of the property.
Subclause 161(3) allows the amount payable under the LPO to be increased
where that amount was initially reduced by a particular amount due to the
operation of paragraph 159(c), and there is a subsequent successful appeal
against payment of that amount. (Paragraph 159(c) enables the court to reduce
the literary proceeds amount if a person is to pay a certain amount pursuant to
a PPO or other pecuniary order.) The amount by which the court can increase the
order is equal to the value of the property.
Subclause 161(4) allows the
literary proceeds amount to be increased where that amount was reduced under
clause 160 in relation to tax paid by the person, and that tax is then repaid or
refunded to the person. The court may increase the order by the amount of tax
repaid or refunded.
Providing the court with this ability to vary the
order does not enable the court to increase the overall penalty amount. The
provisions of clause 161 merely enable the court to change the literary proceeds
amount back to that amount originally assessed where one of the factors relied
upon to reduce the literary proceeds amount does not occur.
Clause 162 DPP may apply for a literary proceeds
order
This clause enables the Director of Public Prosecutions to
apply to a court for a literary proceeds order at any time after the commission
of an offence. The application may relate to one or more
offences.
Clause 163 Notice of application
Clause 163
requires the DPP to give notice of the application to the person against whom
the prospective order is to be made.
Clause 164 Amendment
of application
Clause 164 enables an application for a literary
proceeds order to be amended on the application of the DPP, or with the consent
of the DPP.
Subclause 164(2) precludes the court from amending the
application to include additional literary proceeds unless the court is
satisfied that those proceeds were not reasonably capable of identification at
the time of making the application, or that the evidence necessary to support
the application has only become available since that time. This limitation is
to provide certainty to the person against whom the application is
made.
Subclause 164(3) requires the DPP to give notice of the application
to amend, where the effect of the amendment would be to include additional
literary proceeds in the application, to the person against whom the order is
sought.
Clause 165 Procedure on application
This clause
gives the person against whom a literary proceeds order is sought a right to
appear and adduce evidence at the hearing of the application. This clause
reflects subsection 15(2) of the Proceeds of Crime Act 1987.
Clause 166 enables a court to hear and determine an application for a
literary proceeds order made in relation to a person who was convicted of an
indictable offence before that same court. The clause provides that in those
circumstances the court may exercise its powers in relation to the order
regardless of whether or not the court is constituted in the same manner as when
the person was convicted of the indictable offence.
Clause 167 Enforcement of literary proceeds orders
This
clause provides that a literary proceeds order gives rise to a civil debt due by
the person to the Commonwealth, that that order may be enforced as an order of
the court made in civil proceedings for the recovery of a debt due by the person
to the Commonwealth, and that the debt arising shall be taken to be a judgment
debt. This clause reflects subsections 26(8) and (9) of the Proceeds of Crime
Act 1987.
Clause 168 Property subject to a person’s
effective control
Subclause 168(1) enables a court to make an order,
on the application of the DPP, that property which is under the effective
control of a person against whom a literary proceeds order has been made is to
be available to satisfy that order.
Subclauses 168(2) and (3) enable the
literary proceeds order to be enforced against the property of a third person
which has been declared available under subclause 168(1), and enable a
restraining order to be made in relation to that property.
Subclauses
168(4) and (5) require the DPP to give notice of an application for an order
under subclause 168(1) to both the person subject to the literary proceeds order
and any person whom the DPP has reason to believe may have an entitlement to the
property, and give any such persons a right to appear and adduce evidence at the
hearing of the application.
Clause 169 Charge on property subject to
restraining order
Subclause 169(1) creates a charge over property
which is subject to both a literary proceeds order and a restraining order to
secure payment to the Commonwealth of the literary proceeds amount. In the case
of a restraining order imposed in relation to a person’s conviction or
proposed conviction or an offence, the charge will only be created under this
clause if that restraining order relates to the offence or criminal activity to
which the literary proceeds order relates. This clause is broadly based on the
regime for enforcement of pecuniary penalty orders ( clause 142) and that
operating under the existing Act.
Subclause 169(2) sets out the
circumstances in which a charge created under subclause 169(1) ceases to have
effect.
Under subclause 169(3) a charge is deemed to be subject to
every encumbrance that has come into existence before the charge and that would
otherwise have priority, has priority over all other encumbrances, and subject
to subclause 169(2), is not affected by any change of ownership of the property.
Clause 170 Charges may be registered
Clause 170 enables
the Official Trustee or the DPP to register charges created under clause 169
where the provisions of any Commonwealth, State or Territory law provide for
registration of such charges. A person who subsequently acquires an interest in
property which is subject to such a registered charge is deemed to have had
notice of the charge.
Clause 171 Literary proceeds amounts
exceeding the court’s jurisdiction
Subclauses 171(1)-(3)
clarify jurisdictional issues that may arise ensuring that courts have the
ability to enforce orders made under this Part.
DIVISION 5 – THE
EFFECT ON LITERARY PROCEEDS ORDERS OF CONVICTIONS BEING
QUASHED
Clause 172 Literary proceeds order unaffected if not made
in relation to conviction
Clause 172 provides that a literary
proceeds order is not affected by the quashing of a person’s conviction
for an offence unless it was made in relation to that conviction. An order made
in relation to an offence will not be affected by the subsequent quashing of any
conviction for the offence.
Clause 173 Discharge of literary proceeds
order if made in relation to a conviction
Clause 173 provides that
where a conviction in relation to which a literary proceeds order is made is
subsequently quashed and the DPP has not, within 14 days of the quashing of the
conviction, applied to the court for the order to be confirmed, the order is
discharged. If the DPP makes such an application, the order is not affected by
the quashing of the conviction until that application is determined.
Clause 174 requires the DPP to give notice of the application for
confirmation of the literary proceeds order to the person whose conviction was
quashed.
Clause 175 Procedure on application for confirmation of
literary proceeds order
Clause 175 enables the person against whom
the order was made to appear and adduce evidence at the hearing of the
application for confirmation of the order.
Subclause 175(2) empowers
the court determining the application to have regard to the transcript of
proceedings against the person for the offence of which the person was convicted
or any appeal against the conviction, together with any evidence given in those
proceedings.
Clause 176 empowers a court, on the application of the DPP, to confirm
the literary proceeds order relating to a conviction which has been quashed if
it is satisfied that it could have made a literary proceeds order in relation to
the person on the grounds other than in reliance on the person’s
conviction of the offence.
Clause 177 Effect of court’s
decision on confirmation of literary proceeds order
Clause 177
provides that if a court confirms the literary proceeds order relating to a
conviction which has been quashed, that order is not affected by the quashing of
the conviction. The order will therefore continue to apply despite the quashing
of the conviction.
If the court decides not to confirm the order, it is
discharged.
Clause 178 Literary proceeds orders can cover future literary
proceeds
This clause enables a court which is determining an
application for a literary proceeds order, on the application of the DPP, to
include amounts of literary proceeds which it is satisfied the person is to
receive in the future. The purpose of this provision is to remove the need for
the DPP to keep returning to court with new applications in relation to on-going
payments to which the person the subject of the order is entitled – for
example royalties or progress payments.
Clause 179 Enforcement of
literary proceeds orders in relation to future literary proceeds
This
clause provides that an order in relation to future literary proceeds can not be
enforced unless and until those proceeds are actually received.
PART 3-1 EXAMINATIONS
This clause provides that where a restraining order is in force, a court
may make an order for the examination of any person. That includes a person who
owns the property, or who claims an interest in property that is the subject of
the restraining order, and a person named in a restraining order as a suspect;
further, it includes the spouses of those persons. Those persons and their
spouses can be examined about the “affairs” (for example the
interests, transactions, and ventures) including the nature and location of any
property of any of the persons referred to in paragraphs 180(1)(a)-(c). The
person to be examined may also include lawyers, accountants, bankers and other
advisers of the any of the persons referred to in paragraphs 180(1)(a)-(c).
Upon the cessation of the restraining order, the examination order also
ceases to have effect.
Clause 181 Examination orders relating to
applications for confirmation of forfeiture
This clause applies where
an application has been made to quash a person’s conviction (refer:
clauses 81, 107, 146 and 173). The court may make an order for the examination
of a person, including the person whose conviction is quashed, and a person
whose property, or interest in the property is the subject of a forfeiture,
pecuniary penalty order or literary proceeds order. Those persons and their
spouses can be examined about the “affairs” (for example the
interests, transactions, and ventures) including the nature and location of any
property of any of the persons referred to in paragraphs 181(1)(a)-(c). The
person to be examined could also include lawyers, accountants, bankers and other
advisers of any of the persons referred to in paragraphs 181(1)(a)-(c). The
examination order ceases if the application to quash is withdrawn or when the
court makes a decision on the application.
This clause provides that the examination order can be made only on the
application of the DPP.
This clause enables the DPP to apply to an approved examiner for a
written examination notice. The approved examiner is a person who holds an
office or who is included in a class of people specified in the regulations or
who has been appointed by the Attorney-General under this clause.
It is
currently anticipated that those who may be appointed as approved examiners
would include Members of the Administrative Appeals Tribunal above a certain
rank, Members of the Administrative Appeals Tribunal with at least five years
admission as a legal practitioner, persons who have held judicial office and
have signified their willingness to be an approved examiner, former Magistrates
who have signified their willingness to be an approved examiner, and persons
with relevant qualifications including at least five years admission as a
practitioner who have signified their willingness to be an approved
examiner.
The approved examiner can give an examination notice to a
person who is the subject of an examination order. An approved examiner cannot
give an examination notice if an application has been made to revoke the
relevant restraining order and the court orders the examination not to proceed.
An approved examiner is not prevented from giving an examination notice
by the institution or commencement of any criminal proceedings.
This clause allows more than one examination notice to be given to a
person who is the subject of an examination order.
This clause sets out the form and content of examination notices. The
notice must be in the prescribed form, it must require the person to attend the
examination and specify the time and place of the examination. The notice must
also specify any further information as required by the regulations. The notice
may require the person to produce at the examination any documents specified in
the notice .
This clause requires the examination to be conducted at the time and
place specified in the examination notice. The approved examiner may move the
examination to another time and place at the request of the parties to the
examination referred to in subclause 188(3). If, after the examination notice
has been given, an application is made for the restraining order to be revoked
and the court orders that the examinations are not to proceed, the
approved examiner must give written notice withdrawing the examination notice
and must stop the examination if it has started. The approved examiner may give
a person a further examination notice if the application for revocation of the
restraining order is unsuccessful.
An examination is not prevented by the
institution or commencement of any criminal proceedings.
Subclauses 187(1)(2) and (3) enable the DPP and the approved examiner to
examine a person on oath or affirmation. The approved examiner may require the
person to take the oath or make the affirmation and can also administer it. The
oath or affirmation made by the person for the purposes of the examination is
that the statements the person will make will be true.
Subclause 187(4)
provides that the examination must not relate to a person’s affairs if the
person is no longer a person whose interests, transactions, ventures and
“affairs” can be the subject of an examination under either clause
180 or clause 181.
Sub clause 187(5) allows the approved examiner to
require the person to answer a question put to the person at the examination
that is relevant to the affairs of a person referred to in paragraph
180(1)(a)(b) or (c) or 187(1)(a)(b) or (c).
As provided in clause 180,
“affairs” includes the nature and location of any property.
This clause provides for the examination to take place in private. The
approved examiner, the person being examined and their lawyer, the DPP and any
person whom the approved examiner has directed may be present are the only
people entitled to be present at the examination.
This clause enables the approved examiner to determine when the lawyer of
the person being examined may address the approved examiner and examine the
person about matters on which the person has been examined. The approved
examiner can also stop the person’s lawyer addressing the approved
examiner or stop the examination by the lawyer if the approved examiner thinks
the lawyer is trying to obstruct the examination.
Subclause 190(1) enables the approved examiner if requested by a party
referred to in subclause 188(3) to conduct an examination by video link. To do
this the facilities required by subclause 190(2) must be available, the approved
examiner must be satisfied that to require the person to attend the examination
would cause unreasonable expense or inconvenience and it would be in the
interests of justice to have the person examined by video link.
Subclause 190(2) requires the place of examination to be equipped with
appropriate facilities.
Subclause 190(3) enables the administration of
an oath or affirmation by video link by a person authorised by the approved
examiner at the place where the person is to be examined.
Subclause
190(4) enables the approved examiner to conduct an examination by telephone on
the request of a person referred to in paragraph 188(3) if the approved examiner
is satisfied that it is consistent with the interest of justice.
This clause relates to the record of the examination. The approved
examiner may record the statements made at the examination, and must do so if
requested by the person being examined or by the DPP. If the record is not a
written record, and the person being examined or the DPP so request, the
examiner must cause the record to be reduced to writing.
Where the
record is in writing, the approved examiner may require the person being
examined to read and sign it. However, if the person being examined signs it
because of that requirement, that in itself does not constitute an
acknowledgment that the record is accurate.
If the person being
examined requests a written copy of the record the approved examiner must
provide a written copy without charge; the record may be provided subject to
conditions which the examiner considers necessary to prevent improper
disclosure.
This clause enables an approved examiner to refer a question of law
arising at the examination to the court that made the examination order. That
can be done on the initiative of the approved examiner or at the request of the
person being examined or the DPP.
Subclause 193(1) allows an approved examiner to give directions
preventing or restricting disclosure to the public of matters contained in
answers or documents produced in the course the examination. That can be done
on the initiative of the approved examiner, at the request of the person being
examined or at the request of the DPP.
In deciding whether to give a
direction, subclause 193(2) requires the approved examiner to have regard to
whether any answer, document or matter arising during the examination is of a
confidential nature or relates to the commission or possible commission of an
offence. The approved examiner must also consider any likely unfair prejudice
to the person’s reputation that could be caused, whether it is in the
public interest to give the direction and any other relevant matter.
Subclause 194(1) provides an approved examiner in the performance of his
or her duties with the same protection and immunity as a Justice of the High
Court.
Sub clause 194(2) provides a lawyer appearing at the examination
on behalf of the person being examined or as or on behalf of the DPP with the
same protection and immunity as a barrister appearing for a party before the
High Court.
Subject to this Act subclause 194(3) provides a person being
examined with the same protection and, in addition to the penalties provided by
this Act, with the same liabilities as a witness in proceedings in the High
Court.
This clause makes it an offence for a person required by an examination
notice to attend an examination, to refuse or fail to attend the examination at
the time and place specified in the notice.
Subclause 196(1) creates a number of offences applicable to a person who
is attending an examination in order to answer questions or produce documents.
Pursuant to paragraphs 196(1)(a)-(d) the person cannot refuse or fail to
be sworn or make an affirmation, refuse or fail to answer a question, refuse or
fail to produce a document specified in the examination notice or, leave the
examination before being excused by the approved examiner.
Subclause
196(2) provides that paragraph 196(1)(c) does not apply if the person complied
with the notice to the extent that it was practicable to do so.
Subclause 197(1) provides that the offences in paragraphs 196(1)(b) and
(c) have no application if, under a law of the Commonwealth or a law of the
State or Territory in which the examination takes place, the person could not be
compelled in proceedings before a court to answer the question or produce the
document (as appropriate).
However, pursuant to subclause 197(2),
paragraphs 196(1)(b) and (c) apply if the only reason why the person could not
be so compelled is because of self incrimination, legal professional privilege,
or because the answer or the document would be statutorily inadmissible in legal
proceedings for a reason other than being privileged from disclosure.
Subclause 197(3) provides that a contractual obligation not to disclose
information or an obligation under a foreign law not to disclose information are
not reasons why a person cannot be compelled to answer a question or produce a
document.
This clause states the rule that an answer given or document produced in
an examination can not be used in civil or criminal proceedings against the
person who gave the answer or produced the document, and sets out exceptions to
that rule.
The answer or the document can be used in criminal
proceedings for giving false evidence, or in proceedings on an application under
this Act, or in proceedings ancillary to an application under this Act, or in
proceedings for enforcing a confiscation order, or in the case of a document in
civil proceedings in respect of a right or liability it confers. This last
provision is based on paragraph 13(2)(e) of the NSW Criminal Assets Recovery
Act 1990. It means that a document produced in a compulsory examination
retains its admissibility in relation to other proceedings about rights or
liabilities which are inherent to the document. For example, a contract for
sale remains enforceable between vendor and purchaser, even though it has been
produced in the examination. Its production in an examination does not alter
those rights.
The clause does not confer “derivative-use
immunity”. That is, it does not make inadmissible in civil or criminal
proceedings anything that is obtained directly or indirectly as a result of the
giving of the answer or production of the document.
This clause makes it an offence for a person to be present at an
examination if the person is not entitled under subclause 188(3) to attend the
examination. The maximum penalty that may be imposed in relation to this
offence is a fine of 30 penalty units.
This clause makes it an offence to breach a condition (imposed pursuant
to subclause 191(3) that relates to a record given to the person. The maximum
penalty that may be imposed in relation to this offence is a fine of 30 penalty
units.
This clause makes it an offence to publish a matter contained in answers
given or documents produced at an examination in contravention of a direction
given under clause 199. The maximum penalty that may be imposed in relation to
this offence is a fine of 30 penalty units. This clause does not apply,
however, where a person discloses a matter either to obtain legal advice or
legal representation in relation to the order or for the purposes of, or in the
course of, legal proceedings.
Clause 202 outlines the procedure for the making and granting of
applications for production orders. Subclause 202(1) provides that a magistrate
may make a production order requiring a person to produce, or make available for
inspection, one or more property-tracking documents to an authorised officer.
That order may only be made on the application of an authorised officer of an
enforcement agency, and the magistrate must be satisfied that the person is
reasonably suspected of having possession or control of property-tracking
documents. A production order can only require the
production of documents which are in the possession, or under the control, of a
corporation or are used ,or intended to be used, in the carrying on of a
business. This restriction on the type of documents which can be required has
been made because the privilege against self-incrimination does not apply to
production orders and only a use immunity is conferred preventing their
admissibility in certain criminal proceedings. No derivative use immunity has
been conferred and therefore no documents in the custody of an individual which
relate to the affairs of an individual can be compelled to be produced. These
must be sought under an examination order or seized under the search powers.
Subclause 202(2)(b) prevents an order being made in respect of bankers’
books.
Subclause 202(4) allows the magistrate to consider an
application without notice having been given if the authorised officer requests
the magistrate to do so and the magistrate considers that this is appropriate.
The definition of property-tracking document is included in subclause
202(5). It is based on the definition of property-tracking document in section
4 of the Criminal Assets Recovery Act 1990 (NSW) and is intended to be
wide enough to include property that could be the subject of a restraining
order.
The definition of property-tracking document includes a document
relevant to identifying, locating or quantifying property of any person who has
been convicted of, charged with, or is proposed to be charged with, an
indictable offence; or who is reasonably suspected of having engaged in conduct
constituting a terrorism offence, or who has in the previous 6 years engaged in
conduct which constitutes a serious offence apart from terrorism . Further, the
definition includes documents relevant to identifying or locating any document
necessary for the transfer of property of such a person.
In addition to
referring to documents about the property of a person, the definition also
includes documents relating to the proceeds of an indictable or serious offence.
The definition includes a document relevant to identifying, locating or
quantifying proceeds of an indictable offence, or an instrument of an indictable
offence, of which a person has been convicted, or with which a person has been
charged or is proposed to be charged. Further, it also refers to a document
relevant to identifying, locating or quantifying proceeds, or an instrument of a
terrorism offence, that a person is reasonably suspected of having committed or
proceeds or an instrument of some other serious offence which a person is
reasonably suspected of having committed within the last six years. In
addition, it also refers to a document relevant to identifying, locating or
quantifying proceeds in relation to an indictable offence. The definition also
includes a document relevant to identifying or locating any document necessary
for the transfer of any such property.
A property-tracking document
also refers to a document relevant to identifying, locating or quantifying
literary proceeds in relation to an indictable offence or a foreign indictable
offence of which a person has been convicted or reasonably suspected of having
committed.
Finally, a property-tracking document includes a document
that would assist in the reading or interpretation of any of the above-mentioned
documents.
In the case of proceeds of terrorism or some other serious
offence no specific offence need be identified- any kind of serious offence will
suffice.
Clause 203 sets out what a production order must specify. Under
subclause 203(1), the order must specify the nature of the documents required,
the place at which the person must produce the documents or make the documents
available, the time at which, or the times between which this must be done and
the name of the authorised officer who (unless he or she inserts the name of
another officer in the order) is to be responsible for giving the order to the
person. The production order must also set out the effect of the offences in
clauses 210 and 211 if applicable.
While ordinarily the time specified
under paragraph 203(1)(c) must be at least 14 days from the day on which the
order is given, the magistrate may specify an earlier time if satisfied that it
will not cause hardship to the person required to produce or make available the
documents.
Under clause 204, the authorised officer is authorised to inspect, take
extracts from, or make copies of, a document produced or made available under a
production order.
Clause 205 outlines how long an authorised officer may retain documents
produced under a production order, and the rights that the person to whom a
production order is given has in relation to those documents. Under subclause
205(1), the documents may be retained for as long as is necessary for the
purposes of the Act. That is consistent with the current retention requirement
in paragraph 66(9)(d) of the Proceeds of Crime Act 1987.
The
person to whom a production order is given may require the authorised officer to
give the person a certified copy of the document retained, or require the
authorised officer to allow the person to inspect, take extracts from or make
copies of, the document.
Subclause 206(1) provides that it is not an excuse for failing to
produce, or to make available, a document as required by a production order,
that the production or making available of the document would tend to
incriminate the person or make him or her liable to a penalty, or constitute a
breach of an obligation not to disclose the existence or contents of the
document, or breach legal professional privilege.
Subclause 206(2)
provides a use immunity, that is, any document produced or made available is not
admissible in evidence in criminal proceedings against a natural person except
for the offences of giving false or misleading information or documents under
the Criminal Code.
Clause 207 provides that a person required to produce a document under a
production order may apply to the magistrate who made the order , or if that
person is not available, to another magistrate to vary the production order so
that it merely requires the person to make the document available for
inspection. If the magistrate is satisfied that the document is essential to
the person’s business activities, it may be varied.
Clause 208 enables a magistrate in a State, the Northern Territory,
Norfolk Island or the Australian Capital Territory to issue a production order
relating to one or more documents that are located in that State or Territory,
or another State or Territory if he or she is satisfied that there are special
circumstances which make this appropriate, for example most of the documents are
located in the jurisdiction where the order is sought, the investigation is
centred there and it is important that no warning of the production order be
given to person in other jurisdictions.
As with search warrants, there
may be a major conspiracy investigation where production orders need to be
simultaneously executed in a number of jurisdictions. In such circumstances, it
would be undesirable for applications to be made in each jurisdiction,
particularly if officers with the necessary knowledge of the matter are all
located in one jurisdiction. This would also protect the security of the
investigation.
Clause 209 makes it an offence to make a false or misleading statement
in, or in connection with, an application for a production order. The offence
is punishable by 12 months’ imprisonment, a fine of 60 penalty units, or
both.
Subclause 210(1) makes it an offence for a person given a production
order to disclose the existence or nature of the production order where the
order specifies that information about the order must not be disclosed. It is
also an offence under subclause 210(2) to disclose information to another person
if the other person could infer the existence or nature of the order from that
information. Each of those offences is punishable by a maximum of 2 years
imprisonment or a fine of 120 penalty units, or both.
Subclause 210(3)
sets out the exceptions to the offence which include where the disclosure is
made to obtain legal advice or legal representation, where disclosure is made
for the purposes of, or in the course of, legal proceedings, or where disclosure
is made to an employee, agent or other person in particular circumstances. The
defendant bears an evidential onus in relation to those exceptions.
Subclause 211(1) provides that it is an offence to fail to comply with a
production order where the order is given to the person and that person has not
been notified of ‘sufficient compliance’ in relation to the order.
Subclause 211(2) provides that a person is notified of sufficient compliance
where that person gives any authorised officer a statutory declaration stating
that the person does not have possession or control of the document, and the
officer notifies the person that the statutory declaration is sufficient
compliance with the production order. The maximum penalty is 6 months’
imprisonment or a fine of 30 penalty units, or both.
Clause 212
Destroying etc. a document subject to a production order
The clause
makes it an offence punishable by imprisonment for 6 months for a person to
destroy, deface or interfere with a document which is covered by a production
order.
This is a form of investigative power, and may be exercised to allow the
investigator to make a decision on whether to take action under the Act eg 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 may be 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.
Clause 213 sets out the procedure that must be followed where a specified
officer gives a notice to a financial institution requiring the production of
information or documents relevant to certain matters.
Under subclause
213(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 this Act, or in relation to proceedings under the
Act.
The specified officers who may issue a notice are the Commissioner
or Deputy Commissioner of the Australian Federal Police, a senior executive AFP
employee authorised in writing by the Commissioner, or a member of the National
Crime Authority (except in the course of a special investigation). It was the
view of the ALRC that, for the power to be used responsibly, it was appropriate
that it be exercised only at a very senior level.
Clause 214 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 this Act, or in relation to
proceedings under the Act. 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 clauses 217 (disclosing existence or nature of a
notice) and 218 (failing to comply with a notice).
Clause 215 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 clause 213, 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 clause 213.
Clause 216 Making false
statements in notices
This clause creates the offence of providing a
false or misleading statement in relation to 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.
Clause 217 makes it an offence for a person given a notice under clause
213 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.
Clause 218(1) provides that it is an offence for a person to fail to
comply with a notice given under clause 213. The maximum penalty which can be
imposed in relation to this offence is 6 months’ imprisonment, a fine of
30 penalty units, or both.
Clause 219 sets out the procedure for the making of a monitoring order.
Under subclause 219(1), a Judge of a court with jurisdiction to deal with
criminal matters on indictment may make a monitoring order that a financial
institution provide information about transactions conducted during a particular
period through an account held by a particular person with the institution.
Under paragraph 219(2)(a), the Judge must not make the order unless
satisfied that there are reasonable grounds for suspecting that the person has
committed, or is about to commit, a serious offence; was involved in the
commission, or is about to be involved in the commission, of a serious offence;
or has benefited directly or indirectly, or is about to benefit directly or
indirectly, from the commission of a serious offence. Paragraph 219(2)(b) also
permits an order to be made if satisfied that there are reasonable grounds for
suspecting that an account is being used, or is about to be used, to commit a
money laundering offence against Part 10.2 of the Criminal Code. It does not
matter whether the person who holds the account him or herself commits or is
involved in the offence in question.
Subclause 219(4) provides that the
order may be made only on application by an authorised officer of an enforcement
agency.
Clause 220 Contents of monitoring
orders
Clause 220 states what a monitoring order must contain. It
must specify the name or names of the account holder; the kind of information
that the financial institution is required to provide; the time frame during
which the transactions must have occurred (beginning no earlier than the day on
which notice of the order is given to the financial institution and ending no
later than three months after the date of the order); the authorised officer and
enforcement agency to whom the information is to be provided; if applicable, the
consequences of unlawful disclosure (that is, offence provisions); and the form
and manner in which the information is to be given.
Clause 221 provides that a financial institution or 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 monitoring order. The same parties are also protected from
prosecution for money laundering offences in respect of the information provided
in response to a monitoring order.
This clause creates the offence of providing a false or misleading
statement in relation to an application for a monitoring order. The maximum
penalty which can be imposed in relation to this offence is 2 years’
imprisonment, a fine of 120 penalty units, or both.
This clause creates offences of disclosing the existence and operation of
a monitoring order.
Subclause 223(1) creates an offence for a person to
disclose the existence or operation of a monitoring order. It is also an
offence to disclose information to another person if the other person could
infer the existence or operation of the monitoring order from that information :
subclause 223(2)
Subclause 223(3) makes it an offence for a person to
make a record of, or disclose, the existence or the operation of a monitoring
order if that person receives information relating to that order but that person
is not authorised to receive the information.
Each offence is
punishable by a maximum of 5 years’ imprisonment or 300 penalty units, or
both.
Subclause 223(4) sets out the circumstances in which it is
permitted to disclose the existence or the operation of a monitoring order. The
information may be disclosed to the head of the enforcement agency or a senior
officer of that agency for the performance of that person’s duties, or for
purposes connected to legal or court proceedings; or to an officer or agent of
the financial institution for the purpose of ensuring that the order is complied
with; or a barrister or solicitor for the purpose of obtaining legal advice or
representation in relation to the order.
In
addition, information may be disclosed to the Director of AUSTRAC or a member of
the staff of AUSTRAC who is authorised by the Director as a person who may be
advised of the existence of a monitoring order. Such disclosure may be made
for the purpose of performing the person’s duties; or for the purpose of
(or for purposes connected with) legal proceedings; or for purposes arising in
the course of proceedings before a court.
Clause 224 provides that it is an offence for a person to fail to comply
with a monitoring order. 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 A – Issuing search warrants
Clause 225 Issuing a search warrant
Subclause 225(1) enables a magistrate to issue a search warrant if
satisfied by information on oath that there are reasonable grounds for
suspecting that there is, or will be within the next 72 hours, tainted property
or evidential material at the premises. The 72 hour limit permits a warrant to
be obtained in advance where intelligence suggests that evidential material is
to be taken to specified premises.
Subclause 225(2) provides that that
if the application for a warrant is made by telephone or other electronic means,
as set out in clause 229, the period in which there are reasonable grounds to
suspect that the evidential material will be at the premises is reduced from 72
to 48 hours.
Subclause 225(3) provides that a search warrant may be
issued only on application by an authorised officer of an enforcement agency.
Clause 226 Additional contents of the
information
Subclause 226(1) provides that if the person applying for
the warrant suspects that it will be necessary to use firearms, the grounds for
the suspicion must be stated in the information. This subclause is intended to
alert the issuing officer to the possibility of violence. This is considered
particularly desirable where it is proposed that tactical response units,
special weapons squads and the like may be used.
Subclause 226(2)
requires a person re-applying for a fresh warrant to search premises that were
the subject of a previous search warrant to include particulars of the
application and its outcome in the information.
Subclause 227(1) sets out the matters which must be specified in a
warrant. These matters include: the kind of property in respect of which
action has been or could be taken under this Act, and the nature of that action;
a description of the premises; the kind of tainted property or evidential
material that is to be searched for and seized; the name of the authorised
officer; the time at which the warrant expires; whether the warrant may be
executed at any time or only during particular hours; that the warrant
authorises, in particular circumstances, the seizure of other things found at
the premises; and that the warrant authorises, in particular circumstances, an
ordinary or frisk search.
Subclause 227(2) provides that the search
warrant must state that it expires at a time that is not later than the end of
the seventh day after the day on which it is issued, or, in the case of warrant
issued by telephone, fax or by other electronic means, no later than 48 hours
after the warrant is issued.
Subclause 227(3) ensures that the time
limit on the duration of a warrant does not prevent the issue of further
warrants for the same premises.
Subclause 228(1) is based on subsection 3F(1) of the Crimes Act
1914 and sets out the matters that are authorised by a search warrant. A
warrant authorises entry and search. It authorises seizure of tainted property
or evidential material of the kind specified in the warrant, and of other kinds
of tainted property or evidential material found at the premises in the course
of the search that is necessary to preserve. The warrant also authorises the
searching for, and recording of, fingerprints and other forensic samples found
at the premises. If a warrant expressly authorises the frisk or ordinary search
of a person at, or near, the premises – the executing officer or person
assisting is empowered to search such a person suspected of having evidential
material in his or her possession.
Subclause 228(2) is based on
subsection 3F(5) of the Crimes Act 1914 and provides that a search
warrant authorises an executing officer to make things seized under the warrant
available to other enforcement agencies where it is necessary for the purposes
of the investigation or prosecution of an offence to which the things relate or
recovering proceeds or instruments of an offence. The purpose of this subclause
is to permit the seized items to be exchanged where those items are relevant to
an offence appropriately dealt with by another agency (for example, Australian
Customs Service).
Subdivision B – Applying for search
warrants by telephone or other electronic means
Clause 229
Applying for search warrants by telephone or other electronic
means
Subclause 229(1) enables an authorised officer to apply for the
issue of a warrant by telephone, fax or other electronic means in an urgent case
or where the delay caused by applying in person could frustrate the execution of
the warrant. Urgency can arise because of circumstances requiring immediate
action or where the remoteness of the location of the search involves
unacceptable delay.
Subclause 229(2) provides that an application under
subclause 229(1) must include all the information that would be required in an
ordinary application and, if necessary, the application may be made before the
information is sworn.
Subclause 229(3) enables the magistrate to require
communication by voice to the extent that it is practicable in the circumstances
and any further information.
Clause 230 Issuing warrants by
telephone etc.
Subclause 230(1) enables a magistrate to complete and
sign the same form of search warrant that could be issued under clause 225 if
satisfied that the warrant should be issued urgently, or that the delay which
would occur if an application were made in person would frustrate the effective
execution of the warrant.
The magistrate is required to inform the
applicant of the terms of the warrant and the day and time at which it was
signed by the appropriate electronic means. The applicant must complete a form
setting out the substance of those terms and include information on the name of
the magistrate and the relevant date and time communicated by the magistrate.
The applicant must, by the end of the day after the warrant expires, or
by the end of the day after the warrant is executed, whichever event is earlier,
give the magistrate the completed form of warrant and, if the information had
not been sworn, the sworn information. Those documents must be attached by the
magistrate to the form of search warrant completed by the magistrate.
This provision is particularly necessary in remote areas or where for
some reason a magistrate is not readily available.
Clause 231 provides that where the form of warrant signed by the
magistrate is not produced in evidence in proceedings where it is material for a
court to be satisfied that the exercise of a power under a search warrant issued
under Subdivision B was duly authorised, the court must assume that the exercise
of a power under a search warrant was not duly authorised unless the contrary is
proved.
Clause 232 provides that it is an offence for a person to state a name of
a magistrate in a form of search warrant issued by telephone, fax or by other
electronic means where the name is not the name of the magistrate that issued
the warrant. This provision is based on subsection 3ZU(a) of the Crimes Act
1914 and is intended to prevent abuses of telephone search warrants by law
enforcement officers.
Clause 233 provides that it is an offence for a person to state a matter
in a form of search warrant issued by telephone, fax or by other electronic
means where the matter departs in a material particular from the form authorised
by the magistrate. This provision is based on subsection 3ZU(b) of the
Crimes Act 1914 and, as in the case of clause 232, is intended to prevent
abuses of telephone search warrants by law enforcement officers.
Clause 234 provides that it is an offence for a person to execute or
present a form of search warrant issued by telephone, fax or by other electronic
means that has not been approved by the magistrate, or departs in a material
particular from the terms authorised by the magistrate. This provision is based
on subsection 3ZU(c) of the Crimes Act 1914 and, as in the case of
clauses 232 and 233, is intended to prevent abuses of telephone search warrants
by law enforcement officers.
Clause 235 provides that it is an offence for a person to give to a
magistrate a form of search warrant issued by telephone, fax or by other
electronic means that is not the form of search warrant that the person
executed. This provision is based on subsection 3ZU(d) of the Crimes Act
1914 and, as in the case of clauses 232, 233 and 234, is intended to prevent
abuses of telephone search warrants by law enforcement
officers.
Subdivision C – Executing search
warrants
Clause 236 Warrants that must be executed only
during particular hours
Clause 236 obliges those executing a search
warrant to comply with limitations particularised in the warrant relating to
hours during which it may be executed. It is based on subsection 3F(3) of the
Crimes Act 1914.
Subclause 237(1) provides that a search warrant can not authorise a strip
search or a search of person’s body cavities. Strip searches in a post
arrest situation are dealt with by provisions in Part 1AA of the Crimes Act
1914 while provisions authorising the taking of forensic procedures from
suspects is dealt with in Part 1D of the Crimes Act 1914. Body cavity
searches in relation to narcotic offences are dealt with in the Customs Act
1901.
Subclause 237(2) provides that a search warrant that
authorises an ordinary search or a frisk search must, if practicable, be
conducted by a person of the same sex as the person being searched. It also
prohibits a different search being conducted from the one authorised by the
warrant.
Subclause 237(3) provides that a person assisting in the
execution of the warrant but who is not an authorised officer, must not take
part in searching a person.
Clause 238 outlines the assistance that may be obtained and force that
may be used in executing a warrant. First, an executing officer (and/or
authorised officer assisting in executing the warrant) may obtain such
assistance and use such force against persons and things as is necessary and
reasonable in the circumstances. The provision is based on section 3H of the
Crimes Act 1914 which restates the common law position.
However,
where the person assisting in the execution of the warrant is not an authorised
person, that person is only authorised to use force in relation to things (for
example, a locksmith assisting law enforcement officers to open a safe) and not
persons.
Clause 239 Announcement before entry
Subclause
239(1) requires an executing officer who is about to enter premises under a
search warrant to announce that he or she is about to enter, and provide the
occupier or other person at the premises, the opportunity of allowing the
officer inside. Where the occupier of the premises is there, or a person who
represents the occupier is present, the officer must identify him or herself to
that person.
However, subclause 239(2) authorises the officer not to
comply with those requirements if the officer believes on reasonable grounds
that to do so would compromise the safety of a person, including the officer, or
would frustrate the effective execution of the warrant.
Clause 240
Details of warrant to be given to occupier etc.
Subclause 240(1)
provides that, if a warrant in relation to premises is being executed, a copy of
the warrant and a document setting out the rights of the person must be made
available to the occupier of the premises (or another person who apparently
represents the occupier) if the occupier or that other person is present at the
premises. This provision is consistent with a recommendation of the Senate
Standing Committee for the Scrutiny of Bills (para 1.68 of Report 4/2000). In
addition, subclause 240(2) provides that a copy of the warrant must also be made
available to the person being searched under the warrant.
The copy of
the warrant need not include the signature of the magistrate or the seal of the
court. That is to ensure that forgery or wrongful use of the warrant copy is
prevented. It is based on subsection 3H(5) of the Crimes Act 1914, which
was included at the specific request of the then ACT Chief Magistrate.
Subclause 241(1) provides that an occupier who is present at the premises
is entitled to observe at the premises during the execution of a search warrant.
However, the right ceases if that person impedes the search, or if that person
is under arrest and allowing the person to observe the search would interfere
with the objectives of the search. The clause does not prevent two or more
areas of the premises being searched at the same time.
This clause is
based on section 3P of the Crimes Act 1914 and is a safeguard which
ensures that the occupier has the right to observe whether the search warrant is
being executed according to its terms.
Clause 242 is based on section 3J of the Crimes Act 1914 and sets
outs the specific powers available to officers executing search warrants.
Subclause 242(1) permits the taking of photographs (including video
recordings) of the premises or of things at the premises in certain
circumstances.
Subclause 242(2) allows for a limited interruption in
the execution of a warrant. The executing officer and persons assisting may, if
the warrant is still in force, complete its execution after ceasing and leaving
the premises for not longer than one hour, or longer if the occupier consents in
writing.
Subclause 242(3) provides that where the execution of a
warrant is stopped by order of a court which is later revoked or reversed on
appeal its execution may be completed provided the warrant is still in force.
Clause 243 is based on section 3K of the Crimes Act 1914 and
empowers the executing officer or person assisting to bring to the warrant
premises any equipment reasonably necessary for the examination or processing of
things found at the premises to determine whether they may be seized.
The clause also allows the executing officer or person assisting to
operate equipment already at the warrant premises to carry out the examination
or processing if the officer or person believes on reasonable grounds that the
equipment is suitable for this purpose or the examination or processing can be
performed without damaging the equipment or thing. This is especially useful
for scanning audio or video recordings.
Clause 244 enables a thing found at premises during the course of a
search to be moved to another place for examination or processing in order to
determine whether it may be seized. That may occur provided the occupier
consents, or, if the occupier does not consent, provided that two other
conditions are satisfied. First, there must be reasonable grounds to believe
that the thing contains or constitutes evidential material. And, secondly, it
is significantly more practicable to do so having regard to the timeliness and
cost of examining or processing the thing at another place and the availability
of expert assistance.
This power may be useful where, for example, a
substance believed to be narcotics is discovered and it is necessary to take it
to a laboratory for analysis. In many cases, it would not be practicable to
analyse it at most premises.
There are safeguards ensuring that the
occupier’s rights in relation to the seized thing are protected.
Subclause 244(2) provides that the thing may be moved to another place for
examination or processing for no longer than 72 hours. If an executing officer
wishes to get an extension of that time limit, that officer must apply to a
magistrate for an extension if the officer believes on reasonable grounds that
the thing cannot be examined or processed within 72 hours. Notice of the
application must be given to the occupier and the occupier has an entitlement to
be heard in relation to that application. Finally, the executing officer, if it
is practicable to do so, must inform the occupier of the address of the place to
which the seized thing has been taken; the time at which the examination or
processing will be carried out; and allow the occupier or the occupier’s
representative to be present during the examination or processing.
Subclause 245(1) provides that the executing officer or the person
assisting may operate electronic equipment at the premises to access data
(whether at the premises or elsewhere) if he or she believes on reasonable
grounds that the data might constitute evidential material and the equipment can
be operated without damaging it.
Subclause 245(2) provides that, if the
data accessed by the electronic equipment might constitute evidential material,
it may be copied to a disk, tape or other [similar associated] device brought to
the premises (or at the premises, provided the occupier consents).
If
it is found that evidential material is accessible using the equipment, the
executing officer or person assisting may seize the equipment and any disk, tape
or similar device. Or, if the material can, by using facilities at the
premises, be put in documentary form, the executing officer or person may
operate the facilities to put the material in that form and seize the documents
so produced. That would cover the situation where it may be possible to print
out information from a computer terminal.
Finally, subclause 245(4)
provides that an authorised officer may seize equipment under subclause 245(3)
only if it not practicable to copy the data or material into documentary form,
or if possession of the equipment by the occupier could constitute an offence.
Clause 246 Person with knowledge of a computer or a computer system
to assist access etc.
Clause 246 would enable a law enforcement
officer executing a search warrant to apply to a magistrate for an
‘assistance’ order in relation to data held in or accessible from a
computer. To grant the order, the magistrate would have to be satisfied that
(i) there are reasonable grounds for suspecting that evidential material is
accessible from the computer; (ii) the specified person falls within a certain
category of persons (for example, the owner or lessee of the computer); and
(iii) the specified person has certain knowledge concerning the computer.
Although there is no requirement to provide such assistance under the
Crimes Act 1914 search warrant provisions, assistance requirements are
common in Commonwealth regulatory legislation.
Subclause 247(1) provides that the executing officer or a person
assisting may secure the equipment by locking it up or guarding it if he or she
believes on reasonable grounds that the evidential material may be accessible by
operating the equipment at the premises; that expert assistance is needed to
operate the equipment; and the evidential material may be destroyed, altered or
otherwise interfered with if the equipment is not secured. This is necessary to
ensure that where the equipment is more sophisticated than expected and cannot
be accessed or moved, then the opportunity to obtain expert assistance and to
preserve evidential material is not lost. Material accessible on a computer may
be lost with a swift keystroke from an operator. It is not possible to
pre-program the equipment to erase the evidence in this way.
Subclause
247(2) requires the giving of notice to the occupier in cases where equipment
may be secured for a period of up to 24 hours. Subclause 247(3) allows the
equipment to be secured for either 24 hours or such lesser period when expert
assistance is obtained to operate the equipment.
If the executing officer
or person assisting believes on reasonable grounds that the expert assistance
will not be available within 24 hours, he or she may apply to a magistrate to
extend the period. Before applying for the extension, the executing officer or
person assisting must notify the occupier of the premises of his or her
intention to apply for an extension. The occupier is entitled to be heard in
relation to the application.
Subclause 247(6) provides that the
provisions of this Division relating to the issue of search warrants apply with
necessary modifications to the issuing of extensions.
Clause 248 provides that, if damage is caused to equipment as a result of
it being operated as mentioned in clauses 243 and 245 or the data recorded on
the equipment is damaged or corrupted, and the damage resulted from insufficient
care being exercised either in selecting the person to operate the equipment or
by the person operating it, compensation is payable to the owner.
Reasonable compensation, as agreed between the Commonwealth and the
owner or user, is payable by the Commonwealth out of money appropriated by the
Parliament. In determining the amount of damages payable regard is to be had to
whether the occupier had provided any warning or guidance on the operation of
the equipment. This is to minimise compensation in cases where there has been a
deliberate programming of software to destroy or cause damage if not accessed in
a particular manner or where the occupier failed to mitigate damage by providing
warning or guidance.
If there is disagreement between parties as to the
amount of compensation, the owner or user may institute proceedings in the
Federal Court for compensation.
This clause is based on section 3N of the Crimes Act 1914 and
requires an authorised officer to give to the occupier, on request, a copy of a
thing or information seized that can be readily copied. This does not apply in
certain circumstances where the thing or information was seized by use of
electronic equipment at the premises, or if possession by the occupier of the
document, film, computer file, thing or information could constitute an offence.
This provision is based on Recommendation 75 of the ALRC Report
Confiscation that counts: A review of the Proceeds of Crime Act 1987, in
response to submissions made to the Commission about problems arising with time
constraints on the execution of search warrants on financial institutions. It
was said that it would be helpful if search warrants could be executed but
remain in force for a specified period of time, giving financial institutions
sufficient time to gather documents, search indices and collate documents for
delivery to investigators. It was also said that further warrants are required
where documents are located at different times by financial institutions after
the original warrant has been executed and is therefore ‘spent’.
Seeking further warrants in these circumstances is very time consuming for both
investigators and issuing officers. The provision is intended to be
facilitative, and assist in overcoming those difficulties.
The clause provides that documents that were on, or accessible from, the
premises of a financial institution at the time when a search warrant was
executed, but were unable to be located at that time, and the occupier of the
premises provides them as soon as practicable after the execution of the
warrant, then those documents are taken to have been seized under the warrant.
DIVISION 2 – STOPPING AND SEARCHING
CONVEYANCES
Clause 251 Searches without warrant in emergency
situations
Clause 251 applies where an authorised officer suspects on
reasonable grounds that a thing constituting tainted property or evidential
material is in or on a conveyance (aircraft, vessel or vehicle). The authorised
officer must also suspect that it is necessary to seize the thing to prevent
concealment, loss or destruction and that it is necessary to act without the
authority of a search warrant because the circumstances are serious and urgent.
Under such circumstances, a constable may stop, detain and search the
conveyance, and seize the thing.
If, in the course of searching for the
thing, the officer finds another thing constituting tainted property or
evidential material, the officer may seize it to prevent its concealment, loss
or destruction because the circumstances are serious and urgent.
Subclause 251(4) provides that the officer must exercise the powers
subject to clause 252 which provides various safeguards.
Clause 252 sets out how an authorised officer exercises a power under
clause 251. When an authorised officer exercises powers under clause 251, he or
she may use such assistance as is necessary; must search the conveyance in a
public place or place to which the public have ready access, and must not detain
the conveyance for longer than is necessary and reasonable to search it and any
container found in or on the conveyance.
While the authorised officer
may use necessary and reasonable force to open a part of the conveyance or any
container, he or she must not cause damage unless the person in charge of the
conveyance is absent and therefore cannot be given an opportunity to open the
container. In those circumstances, the constable may open it.
DIVISION 3 – DEALING WITH THINGS
SEIZED
Subdivision A – General
Requirements
Clause 253 requires an executing officer or person assisting to provide a
receipt (which may cover two or more things) for a thing seized under a warrant;
a thing moved to another place for examination or processing; or a thing seized
during a search without warrant in an emergency situation.
Clause
254 Responsibility for things seized
The responsible custodian is
required to arrange for items seized to be preserved and kept until they are
dealt with in accordance with the Act. The responsible officer is defined in
subclause 254(2) to be the head of the law enforcement agency to which the
officer executing the search warrant or seizing the item
belongs.
Clause 255 Effect of obtaining forfeiture
orders
Where a forfeiture order is made over property which has been
seized and which is in the possession of the responsible custodian it must be
dealt with in accordance with the terms of the forfeiture
order.
Subdivision B – Things seized as
evidence
Subclause 256 provides that, subject to certain exceptions, where things
are seized under Part 3-5 as evidential material they must be returned if the
reason for their seizure ceases to exist or it is decided that the seized items
are not to be used in evidence. Additionally, if an authorised officer seizes a
thing in an emergency situation under clause 251, the authorised officer must
return it when the period of 60 days after the thing’s seizure ends. This
reflects the fact that seizure in these circumstances is not judicially
sanctioned and is based on section 3ZV of the Crimes Act 1914.
The
exceptions to the above situations are where proceedings in which the thing may
afford evidence have commenced within the 60 days and have not been finally
concluded or an order extending the retention period has been made, the thing is
forfeitable to the Commonwealth (for example, drugs), there is a dispute as to
the ownership of the thing or where the authorised officer is otherwise
authorised by law or a court or tribunal to retain, destroy or dispose of the
thing.
Clause 257 Authorised officer may apply for a thing to be
retained for a further period
Clause 257 allows a magistrate to order
that a seized thing be retained for a period longer than 60 days, or a period
previously specified in an order of a magistrate under this clause, where
proceedings in respect of which the thing might afford evidence have not
commenced. The authorised officer who proposes to make the application for the
time extension must take reasonable steps to discover each person who may be
affected by the retention of the thing and, if it is practicable to do so,
notify those persons.
Clause 258 provides that the magistrate may order that the authorised
officer retain the thing for a specified period if the magistrate is satisfied
that retention is necessary for the purpose of initiating or conducting
proceedings under this Act.
Subdivision C – Things seized
on other grounds
Clause 259 Return of seized property to
third parties
A person with an interest in property which has been
seized because there are reasonable grounds to suspect that it is tainted
property may apply to a court with proceeds jurisdiction for the return of the
property. The court must order the return of the property if it is satisfied
that the applicant is entitled to possession and it is not tainted property and
any suspect in the offence has no interest in the property.
Clause 260
Return of seized property if applications are not made for restraining orders or
forfeiture orders
If property is seized because there are reasonable
grounds to believe that it is tainted property and it is not covered by an
existing application for a restraining or forfeiture order and within 14 days no
such application is made the property must be returned to the person from whom
it was seized unless clause 261 applies.
Clause 261 Effect of
obtaining restraining orders
Where a restraining order is made over
seized property it must be delivered to the OT if it is ordered to take custody
and control of the property or retained pending being dealt with under the Act.
The responsible custodian of the property may apply to a court that made a
restraining order over the property to retain the property where is may afford
evidence of the commission of an offence. Information which may prejudice an
ongoing investigation does not need to be given at a hearing of an application
by the responsible custodian.
Clause 262 Effect of
refusing applications for restraining orders or forfeiture orders
If
property is seized in the belief that it is tainted property and an application
for a restraining or forfeiture order over the property is refused, the property
must be returned to the person from whom it was seized.
DIVISION 4
–GENERAL
Clause 263 Application of Part
Clause
263 provides that nothing in Part 3-5 is intended to limit or exclude another
law of the Commonwealth, a State or of a Territory relating to the search of
persons or premises; the stopping, detaining or searching of conveyances; or the
seizure of things. This ensures that, despite references in Part 3-5 to the
search of persons or premises etc, officers investigating offences under the Act
will still be able to avail themselves of any relevant laws (for example,
similar provisions in Part 1AA of the Crimes Act 1914).
This clause put beyond doubt that this Part does not in any way affect
the law relating to legal professional privilege. Under that law, documents
which are subject to legal professional privilege cannot be seized.
Clause 265 provides that an magistrate in a State, the Northern
Territory, Norfolk Island or the Australian Capital Territory may issue a search
warrant in that State or Territory; another State or Territory if he or she is
satisfied that there are special circumstances that make the issue of the
production order appropriate; or a non-governing Territory.
This
provision may also assist where there may be a major conspiracy investigation
and search warrants need to be simultaneously executed in a number of
jurisdictions. In such circumstances, it would be undesirable for applications
to be made in each jurisdiction, particularly if officers with the necessary
knowledge of the matter are located in one jurisdiction. This would also
protect the security of the investigation.
Clause 266 which makes it an offence to make a false or misleading
statement in, or in connection with, an application for a search warrant.
Clause 267 Property to which the Official Trustee’s powers and
duties under this Part apply
Clause 267 provides that the OT may the
exercise the powers, and shall perform the duties, that are conferred or imposed
under this Part in relation to property of which a court has ordered the OT to
take control and custody under clause 38. Such property is called
“controlled property”. This clause further provides that the OT may
exercise the powers, and shall perform the duties, that are conferred or imposed
under Division 4 in relation to any property that is the subject of a
restraining order, whether or not the property is controlled
property.
DIVISION 2 – OBTAINING INFORMATION ABOUT CONTROLLED
PROPERTY
Clause 268 provides that the OT, or another person authorised in writing
by the OT to exercise powers under this clause, may require the production of
books in accordance with this clause.
Subclause 268(1) provides that
such a requirement may be made of the suspect in relation to the restraining
order covering the controlled property or any other person entitled to, or
claiming an interest in, the controlled property. The requirement may be made
to ensure that all the controlled property is under the OT’s custody and
control or to ensure the effective exercise of the OT’s powers or
performance of the OT’s duties under this Part in relation to controlled
property.
Subclauses 268(2), (3) and (4) set out the manner and
parameters of requirements made under this clause.
Subclause 268(5)
provides that if books are produced in accordance with a requirement made under
this clause, the person making the requirement to produce books under this
clause, or the person specified in subclause 268(3), may make copies of the
books or take extracts from the books, and may further require the person who is
required to produce the books, or any other person who was a party to the
compilation of the books, to explain to the best of his or her knowledge and
belief any matter relating to the compilation of the books or to which the books
relate.
Subclause 268(6) provides that if books are not produced in
accordance with a requirement made under this clause, the person making the
requirement to produce books under this clause, or the person specified in
subclause 268(3), may further require the person who is required to produce the
books under this clause to state, to the best of his or her knowledge and
belief, where the books may be found and who last had possession, custody or
control of the books and where that person may be found.
Subclause 268(7)
provides that the production of books under this clause does not prejudice a
lien held in relation to the books.
Clause 269 provides that where a restraining order covers controlled
property, the suspect must assist the OT as specified in paragraphs 269(a) to
(d). The assistance must be rendered unless the suspect is excused by the OT
or is prevented from providing assistance by reason of illness or other
sufficient cause.
Clause 270 grants the OT power to obtain information and evidence.
Subclause 270(1) provides that the OT may exercise this power by giving written
notice that requires a person to give such information as described in paragraph
270(1)(a) or to attend before the OT or other authorised person to give evidence
or produce books as stated in paragraph 270(1)(b). Subclause 270(2) provides
that the OT or authorised person may require the information or evidence to be
given on oath, either orally or in writing, and may administer an oath for that
purpose.
Subclause 271(1) provides that a person is not excused from giving
information or a document under this Part on the ground that doing so would tend
to incriminate the person or expose the person to a penalty.
However
subclause 271(2) provides that in relation to a natural person any information
or document given, or any information, document or thing obtained as a direct or
indirect result of giving the information or document, is not admissible in
evidence in criminal proceedings against the person except proceedings relating
to giving false or misleading information and documents.
This clause creates two offences in relation to failing to comply with a
requirement imposed under clauses 268 and 269, relating to the OT’s powers
to require the production of books and to require specified forms of assistance.
This clause creates an offence of failing to comply with a requirement
under paragraph 270(1)(a) to give such information as the OT requires for the
purpose of exercising powers or the performance of the OT’s duties under
this Part.
This clause creates an offence of failing to attend and produce books, or
appear and report, as required by paragraph 270(1)(b).
This clause creates offences of failing, as required by a notice given
under paragraph 270(1)(b) to be sworn or make an affirmation, or answer a
question that the person is required by the OT or authorised person to answer,
or produce any books that the person is required by the notice to produce.
This offence provisions would also cover a person who prevaricates or
evades in the course of giving evidence as required by a notice given to the
person under clause 270(1).
Clause 276 provides that the OT may do anything that is reasonably
necessary for the purpose of preserving controlled property; the clause also
specifies a number of things that the OT may do.
Specifically, the OT
may become a party to any civil proceedings affecting the property, and may take
out insurance for the property. If any of the property consists of securities
or investments, the OT may realise that property. If any of the property is a
business, the person may do anything necessary (or convenient) to carry on the
business in a sound commercial basis; the OT may also employ or terminate the
employment of any employees of the business.
Clause 277 Rights attaching to shares
Clause 277 provides
that the OT may exercise the rights attaching to any controlled property that is
shares as if the OT were the registered holder of the shares. The OT may
exercise such rights to the exclusion of the registered
shareholder.
Clause 278 Destroying or disposing of
property
This clause grants the OT power to destroy or dispose of
controlled property. Subclause 278(1) states that 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.
Subclause 278(2) grants the OT power to
dispose of controlled property, by any means, if the circumstances described in
any of paragraphs 278(2)(a) to (c) exist. Paragraphs 278(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.
Clause 279 Notice of proposed destruction or
disposal
Clause 279 provides that the OT must give written notice of
the proposed destruction or disposal of the controlled property to the owner of
the property and to any other person whom the OT has reason to believe may be
entitled to the property. A person who receives such written notice may object
in writing within 14 days of receiving the notice.
Clause 280
Procedure if person objects to proposed destruction or disposal
Clause 280 sets out the procedure that must be followed if the OT
intends to proceed with the destruction or disposal of controlled property where
a person has objected to the proposed destruction or disposal.
Subclause
280(1) states that the OT must apply to the court that granted the restraining
order concerning the property for an order that the OT may destroy or dispose of
the property. Subclause 280(2) provides that a court may make such an order if
it is in the public interest to do so or it is required for the health of safety
of the public. In determining whether such an order should be made, the court
may take into account any matters it sees fit, including the matters set out in
paragraphs 280(3)(a) to (d).
Subclause 280(4) provides that the court may
make an order for destruction or disposal of the controlled property if, in the
court’s opinion, the property is likely to lose value or the cost of
controlling the property until it is finally dealt with by the OT is likely to
exceed, or represent a significant proportion of, the value of the property when
it is finally dealt with.
Subclause 280(5) states that the court may also
order that a specified person bear the costs of controlling the property until
it is finally dealt with by the OT or order that a specified person bear the
costs of an objection to a proposed destruction or disposal of the
property.
Clause 281 provides that any proceeds realised from the sale of
controlled property under clause 278 are taken to be covered by the restraining
order that covered that controlled property. It further provides that if the
restraining order covered the controlled property on the basis that the property
was proceeds of, or an instrument of, an offence to which the order relates, the
proceeds realised from the sale of the property continue to be proceeds of, or
an instrument to, that offence.
Clause 282 provides that a court may, if subclause 282(2), (3) or (4)
applies, direct the OT to pay the Commonwealth an amount equal to the penalty
amount under a pecuniary penalty order or literary proceeds order out of
property that is subject to a restraining order.
Subclause 282(2)
provides that a court may make such a direction if the order is made against a
person in relation to one or more offences and the restraining order has already
been made against that person in relation to that offence or offences or in
relation to one or more related offences.
Subclause 282(3) permits the
court to make an order under subclause 282(1) if the pecuniary penalty order or
literary proceeds order has been made against a person in relation to one or
more offences, and a restraining order is subsequently made against the person
in relation to one or more of those offences or against property of another
person in relation to which an order is in force under subclause 141(1) in
relation to the pecuniary penalty order or subclause 168(1) in relation to a
literary proceeds order. Subclauses 141(1) and 168(1) provides that property
which a court finds is subject to a person’s effective control may be
declared by the court to be available to satisfy, respectively, a PPO or LPO
made against that person.
Subclause 282(4) provides that the court that made the pecuniary penalty
order or the restraining order may, on application by the DPP, make a direction
under subclause 282(1) if the pecuniary penalty order or literary proceeds order
has been made against a person in relation to one or more offences, and a
restraining order has been made against the person in relation to one or more of
those offences or against property of another person in relation to which an
order is in force under subclauses 141(1) or 168(1) in relation, respectively to
the PPO or LPO.
Clause 283 provides that for the purposes of enabling the OT to comply
with a direction given by a court under clause 282, the court may make the
direction or appointment specified in paragraphs 283(1)(a) and (b). Clause 282
provides that a court may direct the Official Trustee to pay the Commonwealth an
amount equal to the penalty amount under a pecuniary penalty order or literary
proceeds order, out of property that is subject to a restraining
order.
Paragraph 283(1)(a) permits the court to direct the OT to sell or
otherwise dispose of such of the property that is subject to the restraining
order as the court specifies.
Paragraph 283(1)(b) permits the court to
appoint an officer of the court, or any other person, to execute any deed or
instrument in the name of the person who owns or has an estate, interest or
right in the property and to do any act or thing necessary to give validity and
operation to the deed or instrument.
Subclause 283(2) provides that the
execution of the deed or instrument by the person appointed by an order under
this clause has the same force or validity as if the deed or instrument had been
executed by the person who owned or had the estate, interest or right in the
property.
This clause provides that if the OT is given a direction under clause 282
in relation to property, the OT must, as soon as practicable after the expiry of
the appeal period under clause 285, carry out the matters prescribed in
paragraphs 284(1)(a) to (c) as applicable.
Paragraph 284(1)(a) directs
the OT to sell or otherwise dispose of property that is not
money.
Paragraph 284(1)(b) directs the OT to apply property that is
money, and the amounts received from the sale or disposition of other property,
in payment of the costs, charges, expenses and remuneration of the kind referred
to in subclause 288(1), being incurred or payable in connection with the
restraining order and payable to the OT under the regulations. Subclause 288(1)
provides that the payment of the OT’s costs and remuneration may be
specified in the regulations.
Paragraph 284(1)(c) directs the OT to pay
the remainder of the money and amounts received from the sale or disposition of
property to the Confiscated Assets Account.
Subclause 284(2) provides
that if the remainder of the money and amounts 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.
Clause 285 provides that the OT must not carry out a direction given
under clause 282 in relation to property until the end of the appeal period
under this clause. Clause 282 provides that a court may direct the OT to pay
the Commonwealth an amount equal to the penalty amount under a pecuniary penalty
order, out of property that is subject to a restraining order. Subclause 285(1)
provides that the OT must not apply property that is money, and must not sell or
otherwise dispose of property that is not money, until the end of the appeal
period under this clause.
Subject to subclause 285(3), subclause 285(2)
prescribes the appeal period for the purposes of this clause. If the period
provided for the lodging of an appeal against the pecuniary penalty order to
which the direction relates has ended without any such appeal having been
lodged, then the appeal period for the purposes of this clause is the end of
that period. If an appeal against the pecuniary penalty order has been lodged,
the appeal period for the purposes of this clause is when the appeal lapses or
is finally determined.
Subclause 285(3) provides the appeal period for
the purposes of this clause where the person is convicted of the offence, or any
of the offences, to which the pecuniary penalty order relates. In such an
instance, the appeal period for the purposes of this clause is when the period
provided for lodging an appeal against the conviction or convictions to which
the direction relates has ended without such an appeal having been lodged, or,
were such an appeal has been lodged, when the appeal lapses or is finally
determined. Subclause 285(3) further provides that the appeal period for the
purposes of this clause is at the later of the points in time determined under
subclauses 285(2) or (3).
Subclause 285(4) states deeming provisions for
the purposes of determining the appeal period for the purposes of this clause
under subclause 285(3).
Clause 286 Discharge of pecuniary penalty
orders and literary proceeds orders by credits to the Confiscated Assets
Account
Clause 286 provides that if the OT pays money to the
Confiscated Assets Account under this Division in satisfaction of a
person’s liability under a pecuniary penalty order, the person’s
liability under the pecuniary penalty order is discharged to the extent of the
payment.
This clause provides that money that is in the control of the OT due to a
restraining order must not be paid into the Common Investment Fund under the
Bankruptcy Act 1966, despite anything in that Act.
The costs, charges and expenses incurred by the OT in connection with
their exercise of powers and the performance of their duties and function under
this Act may be subject of a regulation: paragraph 288(a).
The
regulations may also make provision relating to the remuneration of the OT:
paragraph 288(b).
Clause 289 Income generated from controlled
property
Clause 289 enables the OT to apply any income which is
generated from controlled property to the payment of the OT’s expenses etc
which are provided for in regulations made pursuant to clause 288.
If the
property is returned to its owner, the OT must ensure that the difference
between the amount paid to the OT from the income of the controlled property and
the necessary expenditure by the OT on maintenance of the property or to
generate income from the property, is refunded to the owner. This ensures that
where the person’s property is returned to him or her, the income
generated by the property was only used for purposes related to that property,
and not to remunerate the OT or pay its costs etc under clause 288.
Clause 290 provides that the OT is not personally liable for the matters
specified in paragraphs 290(1)(a) and (b) unless the court is satisfied that the
OT is guilty of negligence in respect of taking custody and control of the
property. Paragraphs 290(1)(a) and (b) prescribe (a) any loss or damage
sustained by a person claiming an entitlement to all or part of the controlled
property, arising from the OT taking custody and control of the property, and
(b) the cost of proceedings taken to establish an entitlement to the
property.
Subclause 290(2) provides that the OT is not personally liable
for any of the matters prescribed by paragraphs 290(2)(a), (b) or
(c).
Clause 291 Indemnification of Official
Trustee
Subclause 291(1) compels the Commonwealth to indemnify the OT
against any personal liability incurred through the exercise of its powers and
duties under the Act. This indemnity enables the OT to carry out its functions
without the threat of personal liability.
Subclause 291(2) provides that
the Commonwealth has the same right of reimbursement that the OT would have if
the OT made a payment under the indemnity. The same right of reimbursement is
extended by subclause 291(3) to reimbursements given under another indemnity
provided to the OT.
The indemnity provided to the OT by the Commonwealth
does not affect any other right the OT has to be indemnified in respect of
personal liability, or any other indemnity provided to the OT for such personal
liability: subclause 291(4)
Clause 292 Payments to legal aid commissions for representing
suspects and other persons
This provision requires the OT to
reimburse legal aid commissions from the suspect’s restrained assets for
the cost of representing the suspect in criminal proceedings and proceedings
under the Act. Similarly the OT is required to reimburse legal aid commissions
from restrained property of another person the costs of representing that person
in proceedings under the Act.
Subclause 293 (1) provides that where a LAC provides legal assistance to
a person under clause 292 the LAC can recover from the Confiscated Assets
Account the amount of legal costs which exceeds the value of the restrained
assets.
Payment by the OT to the LAC must be made to the LAC if
paragraphs 293(1)(a)-(c) are satisfied. The amount the OT must pay to the LAC
is the amount of the excess.
Paragraph 293(1)(a) requires the OT to
certify that the LAC’s costs exceed the value of the person’s
restrained property.
Paragraph 293(1)(b) requires the Attorney-General
or delegate to certify the legal costs.
Paragraph 293(1) (c) requires the
Minister to consent to the payment from the Confiscated Assets Account. [All
payments from the Confiscated Assets Account must be approved by the
Minister].
Subclause 293(2) enables a LAC to be paid from the Confiscated
Assets Account where the disposal by the OT of the restrained assets would take
considerable time. The LAC may be paid for legal costs incurred in proceedings
mentioned in clause 292. This acts like an advance on the restrained assets,
and the amount paid to the LAC cannot exceed the assessed value of the
restrained assets. The assets must be valued before payment can be made under
this clause.
Payment from the CAA must be approved by the Minister. In
addition, the Attorney-General or delegate must certify the costs of the
LAC.
This clause enables the DPP or OT to pass on to a LAC information
obtained under the Act which would assist the LAC in determining an application
for legal assistance made by a person.
This ensures that the LAC is not
hindered in processing the application by lack of information about the
restrained assets of the person and any which are not the subject of restraint.,
and has a clear picture of the person’s financial situation.
Clause 295 Establishment of Account
Subclause 295(1)
formally establishes the Confiscated Assets Account. Subclause 295(2) provides
that the Account is a Special Account for the purposes of the Financial
Management and Accountability Act 1997.
Subclause 296(1) provides that the following money is credited to the
Account:
• proceeds of confiscated assets (paragraph 296(1)(a)).
This expression is defined by a new definition inserted in the Dictionary. It
identifies the sources of funds, recovered under the principal Act, the
Customs Act 1901 and the Crimes Act 1914, which are payable to the
Account;
• money paid to the Commonwealth by a foreign country
under a treaty or arrangement providing for mutual assistance in criminal
matters (paragraph 296(1)(b));
• money paid to the Commonwealth
following the successful enforcement of the foreign pecuniary penalty order in
Australia under the provisions of the Mutual Assistance Act (paragraph
296(1)(c));
• money deriving from the successful enforcement of an
interstate forfeiture order registered in a Territory (except where covered by a
direction under subclauses 70(2)or 100(2): (paragraph 296(1)(d)). Under an
agreement between the Commonwealth, State and Territory, the proceeds resulting
from the forfeiture of property are to be retained by the jurisdiction in which
they forfeiture order was made. Thus, if an interstate forfeiture order is
registered under the Act for enforcement against property located in a Territory
(other than the ACT or NT), the resulting proceeds are payable to the
Commonwealth and will be payable to the Account;
• money received
from a State or the ACT or NT Government pursuant to the equitable sharing
program (paragraph 296(1)(e)). This refers to money recovered under State or
ACT or NT proceeds legislation but shared with the Commonwealth because of the
contribution made by a Commonwealth agency to the investigation or prosecution
of the criminal matter or to the related confiscation proceedings;
and
• money that is paid to the Commonwealth by a foreign country
in recognition of assistance provided by Commonwealth law enforcement agencies
(paragraph 296(1)(f)). This is in addition to money paid to the Commonwealth by
a foreign country under a treaty or arrangement providing for mutual assistance
in criminal matters.
Subclause 296(2) provides that all amounts paid into the Account which are
declared by the regulations to be distributable funds or suspended funds are to
retain that identity while they remain within the Account. The phrase
“suspended funds” is defined at subclause 297(2) and
“distributable funds” is defined in subclause 299(7).
All
proceeds recovered under the Act are paid into the Account. That is intended to
include any proceeds recovered by the DPP as a result of a negotiated settlement
of any forfeiture proceedings such as any recovery included in a consent order;
and any recovery of proceeds by an agency by means of a negotiated settlement.
Subclause 296(3) identifies what monies are proceeds of confiscated
assets.
Subclause 296(4) sets out the requirements for an arrangement
to be an equitable sharing program.
Subclause 297(1) sets out the purposes of the Account in respect of
suspended funds. The money is to be used for:
• making payments under the equitable sharing program (paragraph 297(1)(a));
• making payments approved by the Minister for programs relating to law enforcement, drug treatment or diversion and crime prevention under clause 298 (paragraph 297(b));
• making payments overseas pursuant to a foreign forfeiture order, foreign pecuniary penalty order or an order under section 45 of the International War Crimes Tribunal Act 1995 that was enforced in Australia and in relation to which Australia’s Mutual Assistance arrangement provides for the repatriation of an amount recovered (paragraph 297(1)(c));
• making payments to a State, ACT or NT in relation to an interstate order which was registered under the Mutual Assistance Act and assets were repatriated from overseas following enforcement in a foreign country under the Mutual Assistance arrangement (paragraph 297(1)(d));
• payment of the OT’s costs under clause 288(1)(a) which the OT has been unable to recover (paragraph 297(e));
• payment of the annual management fee for the Account. The regulations will make provision for the deduction of a management fee which will cover the administrative costs associated with the management of the Account (paragraph 297(1)(f);
• payment of amounts that are ordered to be paid by the Commonwealth in compensation for third party interests under either paragraphs 73(2)(d) or 88(1)(b), sub-paragraph 102(1)(d)(ii) or subclause 289(2) of the Act (paragraph 297(1)(g)); and
• making payments to a relevant LAC in accordance with Part 4-2 (paragraph 297(1)(h)).
Subclause 297(2) defines suspended funds for the purposes of the Confiscated Assets Account.
Clause 298 Programs for expenditure on law enforcement, drug treatment etc.
This clause gives the Minister power to give written approval to the use of
money in the CAA for one or more purposes relating to crime prevention, law
enforcement, drug treatment and diversionary measures relating to the illegal
use of drugs. This power is exercised entirely in the Minister’s
discretion to supplement funds otherwise available for such
purposes.
Clause 299 Determinations by Official Trustee about
suspended and distributable funds
Clause 299 is based on section 34E
of the Proceeds of Crime Act 1987. It provides that the Official Trustee
shall periodically, and at least once every six months, determine whether the
amount of suspended funds in the Account is likely to be insufficient for the
requirements of subclause 297(1).
Under subclauses 299(2) and (3), the
OT will be able to identify further funds as ‘suspended funds’ in
the case of a deficiency (subclause (2)) or to declare that surplus
‘suspended funds’ are to be identified as ‘distributable
funds’.
Where the amount of suspended funds is likely to exceed
the amount required to meet the payments for the purposes of subclause 297(1),
subclauses 299(4) and (5) require the OT to identify an amount as distributable
funds. The amount specified cannot be more than the amount of the likely
excess.
Sub clause 299(7) defines distributable funds for the purposes of
the Confiscated Assets Account.
PART 4-4 –
CHARGES OVER RESTRAINED PROPERTY FOR PAYMENT OF CERTAIN
AMOUNTS
This clause ensures that the costs of legal aid commission are met prior
to the restrained assets being released, either where the restraining order is
revoked by the court or the order ceases in accordance with clause
45.
Clause 300 does this by creating a charge on the property for the
payment of the LAC expenses.
Paragraph 301(a) provides that the charge ceases to have effect if the
amount owing to the LAC is paid.
Paragraph 301(b) provides that the
charge also ceases to have effect if the property is sold or disposed of with
the consent of the OT.
This clause establishes the priority of a charge which is created in
favour of a LAC under clause 300.
Paragraph 302 provides that a charge
made in favour of a LAC is subject to all earlier encumbrances that would
otherwise have priority. For example, if the restrained property is a house,
there may be an earlier mortgage which upon disposal of the property would be
paid out prior to the OT or LAC. A charge continues to have effect despite any
change in ownership of the property; however, this is subject to the matters set
out in clause 301.
This Part enables restraining orders, and forfeiture orders made under
prescribed legislation of a State, the Northern Territory or the Australian
Capital Territory to be registered and enforced in the external Territories.
Clause 303 deals with the registration in a Territory of a restraining
order made interstate which is expressed to apply to property in that
Territory.
Subclause 303(1) permits the registration in the Supreme Court
of a Territory of a copy of a restraining order, sealed by the court, which was
granted interstate, and is expressed to apply to specified property, or all of
the property of the specified person, or all property (other than specified
property) of a specified person, which is located in the
Territory.
Subclause 303(2) permits a copy of any amendments made to the
IRO, whether before or after the restraining order has been registered in that
Territory, to be registered in the same was as the original order. Such
amendments do not take effect until they are registered.
Subclause 303(3)
permits the registration of an IRO to be refused, to the extent that the IRO
would not be able to be enforced in the Territory once
registered.
Subclause 303(4) provides that the registration must be
effected in accordance with the Rules of the Supreme Court of the
Territory.
Subclause 304(1) provides that once an IRO is registered in the Supreme
Court of a Territory, that IRO may be enforced in the Territory as if it were a
restraining order made at the time it was registered.
Subclause 304(2)
provides that the Act, except for certain specified clauses, applies to an IRO
which has been registered in the Territory in the same way as it would apply to
a restraining order made under the Act.
Clause 305 provides that an IRO which has been registered in a Territory
under the Act ceases to be in force in the Territory if it ceases to be in force
in the State in which it was made, or registration of the order is cancelled
under clause 306 of the Act.
This clause provides for the cancellation of registration of an IRO in a
Territory.
Under subclause 306(1), the Supreme Court of the Territory may
cancel the registration of an IRO if the registration was improperly obtained.
The court may also cancel the registration if the particulars of any amendments
made the IRO or any ancillary orders or directions made by a court in relation
to the IRO were not communicated to the Supreme Court in accordance with the
rules of the Supreme Court.
Pursuant to subclause 306(2), the Supreme
Court is also able to cancel the registration of an IRO to the extent that the
IRO in not enforceable in the Territory.
Clause 307 Charge on
property subject to registered interstate restraining order
Upon
occurrence of the events specified in paragraphs 307(1)(a) to (d), subclause
307(1) creates a charge over the property which is the subject of an IRO to
secure the payment of an interstate PPO.
Paragraphs 307(1)(a) to (d)
require an IRO and interstate PPO to have been made against a person, and each
of those orders to have been registered in the Supreme Court of a Territory.
The IRO must be made in relation to the person’s conviction for an
interstate indictable offence, or the charging or proposed charging of the
person with an interstate indictable offence, and the interstate PPO must be
made in relation to the person’s conviction for an interstate indictable
offence.
The charge is created over the property upon the registration of
the IRO or the interstate PPO, whichever occurs last.
Subclause 307(2)
provides for the cessation of the charge.
Paragraph 307(2)(a) provides
that where the conviction which the PPO was made in relation to is quashed, the
charge ceases to have effect.
The charge also ceases where the person
successfully appeals against the PPO and the order is discharged by the court :
paragraph 307(2)(b).
Pursuant to paragraph 307(2)(c), if the person
pays out the PPO in full, the charge ceases to have effect.
Pursuant to
paragraph 307(2)(d), certain sale or disposal of property also causes the
cessation of the charge. The property may be disposed of in three ways. They
are, by order of the court in the jurisdiction in which the PPO was made; by the
owner of the property with the consent of the court; or (where appropriate) by
the owner of the property with the consent of the person directed by the IRO to
take control of the property.
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: paragraph
307(2)(e).
Subclause 307(3) provides that a that a charge made under this
clause is subject to all earlier encumbrances that would otherwise have
priority.
By operation of paragraph 307(3)(b), the charge has priority
over all other encumbrances.
Paragraph 307(3)(c) enables a charge to
continue to have effect, despite any change in ownership of the property;
however, this is subject to the matters set out in subclause 307(2).
Subclause 307(4) 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 clause 307 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.
Clause 308 Powers of Official Trustee in relation to
interstate restraining orders
This clause provides that when an IRO
is registered in a Territory, and the order directs a State, ACT or NT official
to take control of the restrained property, the OT may with the agreement of the
official, exercise the same powers in relation to that property as the State
official could if the property were located in that State, the ACT or
NT.
This clause enables an interstate forfeiture order (IFO) which applies to
property located in a Territory to be registered in the Supreme Court of that
Territory.
Subclause 309(1) permits the registration in the Supreme Court
of a Territory of a sealed copy of a forfeiture order granted interstate, where
that forfeiture order applies to property in the Territory. The registration
may be effected by the person on whose application the order was made or an
appropriate officer.
Subclause 309(2) permits a copy of any amendments
made to the IFO, whether before or after the forfeiture order has been
registered in that Territory, to be registered in the same was as the original
order. Such amendments do not take effect until they are
registered.
Subclause 309(3) permits the registration of an IFO to be
refused, to the extent that the IFO would not be able to be enforced in the
Territory once registered.
Subclause 309(4) provides that the
registration must be effected in accordance with the rules of the Supreme Court
of the Territory.
This clause provides for the enforcement of an IFO which has been
registered in the Territory. The IFO may be enforced in the Territory from the
time of registration as if it were a forfeiture order made under the
Act
Subclause 310(2) applies the Act (apart from Divisions 5 and 6 of
Part 2-2 and clause 322) to an IFO registered in a Territory, as the Act applies
to a forfeiture order.
This clause provides for the cessation of the registration an IFO in a
Territory. An IFO ceases to be registered under the Act if the order ceases to
be in force in the State in which it was made, or the registration is cancelled
under clause 312 of the Act.
This clause provides for the cancellation of registration of an IFO in a
Territory.
Under subclause 312(1), the Supreme Court of the Territory may
cancel the registration of an IFO if the registration was improperly obtained;
the court may also cancel the registration if the particulars of any amendments
made the IFO or any ancillary orders or directions made by a court in relation
to the IFO were not communicated to the Supreme Court in accordance with the
rules of the Supreme Court.
Pursuant to subclause 312(2), the Supreme
Court is also able to cancel the registration of an IFO to the extent that the
IFO in not enforceable in the Territory.
Clause 313 Interim registration of faxed copies
This
clause provides for the interim registration of facsimile copies of interstate
restraining orders and interstate forfeiture orders and amendments to such
orders.
Subclause 313(1) deems a facsimile copy of a sealed copy of an
IRO, IFO or amendment to either of those orders which has been certified in
accordance with the rules of the Supreme Court to be the same as a sealed copy
for the purposes of the Act.
Under subclause 313(2) a sealed copy of the
relevant order (that is not a facsimile copy) must be filed with the court
within five days of the registration of the facsimile copy; if this does not
occur, the registration effected by the facsimile copy ceases to have
effect.
Where a sealed copy (that is not a facsimile copy) is filed with
the court within the five day period, it has the same effect as if the sealed
copy had been registered on the date that the facsimile copy was registered:
subclause 313(3).
This provision vests the courts of the State and Territories with
jurisdiction in relation to matters arising under the Act. In relation to a
court of a Territory, jurisdiction is only vested as far as the Constitution
permits.
Subject to the operation of clause 53, the jurisdiction vested
in the State and Territory courts by this clause is not limited by any limits
which any other jurisdiction of the court may be limited by. For example, under
this clause an intermediate court would be able to entertain an application for
forfeiture where the amount sought to be forfeited could exceed that
court’s monetary jurisdiction.
Clause 315 Proceedings are
civil, not criminal
This clause makes it clear that all proceedings
under this Act are civil proceedings. Except for the offence provisions
contained in the Act, the rules of construction and evidence applicable in civil
cases apply to the interpretation of, and proceedings under, the Act.
Clause 316 Consent orders
This clause allows a court to
make an order in a proceeding under Chapter Two of this Act with the consent of
the applicant in the proceeding and everyone who the court has reason to believe
has an interest in the property that is the subject of a proceeding. The court
may make the order without consideration of the matters that it would otherwise
consider in the proceeding. A consent order can be made within the 6 month
period which is required to elapse under clause 47 before forfeiture can occur
for conduct amounting to a serious offence.
This clause makes it clear that subject to clauses 52 and 118, all
questions of fact which are to be determined by a court pursuant to an
application under this Act are to be decided to the civil standard (the balance
of probabilities).
Clause 318 Proof of certain
matters
Clause 318 facilitates the proof of certain matters. A
certificate under section 180 of the Evidence Act 1995 relating to
convictions, acquittals, court orders or other judicial proceedings is
admissible in civil proceedings under the Act. In proceedings for an
application under the Act, proceedings ancillary to such an application or
proceedings for the enforcement of an order made under the
Act, the transcript of the examination is evidence of
the answers given by a person in the course of the examination.
Clause 319 Stay of proceedings
This clause provides that
proceedings under the Act may not be stayed on the grounds that criminal
proceedings have been instituted or commenced (whether under this Act or
not).
Clause 320 Effect of the confiscation scheme on
sentencing
Clause 320 establishes what matters under the Act a
sentencing court may or must take into account. The provisions ensure that a
person’s sentence is not mitigated by the fact that the person forfeited
the proceeds or benefits of the offence for which he or she is being
sentenced.
The court may take into account any cooperation the person has
provided in relation to an action under the Act: paragraph 320(a).
Where property is forfeited in relation to the offence for which the
court is sentencing the person, the court must not take into account forfeited
property which is the proceeds of the offence; however, the court must take into
account any other property forfeited: paragraphs 320(b) and (c).
The
court may not take into account the effect of a PPO or LPO that relates to the
offence: paragraph 320(d).
Clause 321 Deferral of sentencing pending
determination of confiscation order
Where an application for a
confiscation order is made to the court on the basis of the person’s
conviction for that offence, clause 321 enables a court which has convicted a
person of an offence to defer the sentencing of the person for that offence
until it has determined the application for the confiscation order.
Subclause 322(1) enables a person against whom a confiscation order is
made, or whose interest in property is either the subject of a forfeiture order
or has been declared available to satisfy a PPO or LPO, to bring an appeal
against those orders (referred to as a targeted order) in the
manner set out in the rest of clause 322.
Subclause 322(2) provides
that, where the targeted order in subclause 322(1) was made in relation to a
conviction of an offence, the person may appeal against the order in the same
manner as if the targeted order were, or were part of, a sentence imposed on the
person in respect of the offence.
Subclause 322(3) provides that, in
any other case (that is, where the targeted order was not made in relation to a
conviction), the person may appeal against the targeted order as if the person
had been convicted of the offence to which the primary order relates and that
order were, or were part of, a sentence imposed on the person in respect of the
offence.
Subclause 322(4) sets out the appeal rights of a person in
respect of a primary order relating to a foreign indictable offence. Under this
subclause, the person may appeal against the targeted order in the same manner
as if the person had been convicted of the offence in the State or Territory in
which the targeted order was made and that order were, or were part of, a
sentence imposed on the person in respect of the offence.
Subclause
322(5) provides that the DPP has the same right of appeal against a targeted
order as the person referred to in subclause 322(1) and has a right of appeal
against a refusal by a court to make a targeted order in the same manner as if
that order were made and the DPP were appealing against that order.
Subclauses 322(6) and (7) provide that on an appeal against a targeted
order, the order may be confirmed, discharged or repealed, and that the clause
does not affect any other right of appeal.
Subclause 323(1) sets out the circumstances in which the court may order
the Commonwealth to pay all costs incurred by a person involved in certain
proceedings in relation to forfeiture or restraining orders. A number of
pre-conditions must be satisfied before the order can be made. First, under
paragraph 323(1)(a), the person must bring, or appear at, proceedings under the
Act in order to prevent a forfeiture order or restraining order from being made
against property of the person, or to have property excluded from such orders.
Secondly, paragraphs 323(1)(b) and (c) provide that the person must be
successful in the proceedings and the court must be satisfied that the person is
not involved in the commission of the offence relating to the
orders.
Subclause 323(2) provides that the costs referred to in subclause
323(1) are not limited to costs normally recoverable by the successful party in
civil proceedings.
Pursuant to subclause 324(1), a power conferred by this Act on a State or
Territory judge or on a magistrate that is neither judicial nor incidental to a
judicial function or power, is a power conferred on that person in a personal
capacity and not as a court or a member of a court.
Subclause 324(2)
provides that the State or Territory judge, or the magistrate, is not compelled
to accept the power conferred.
Subclause 324(3) provides that a State
or Territory judge, or the magistrate exercising a conferred power has the same
protection or immunity as if he or she were exercising that power as, or as a
member of, the court of which the judge or magistrate is a member.
Clause 325 Effect of a person’s death
The effect of
this clause is that proceedings under the Act may be instituted and continued
against a person who has died; the rights of a third party may also be enforced
after his or her death.
It is not anticipated that proceedings for
conviction-based forfeiture could be instituted under this provision, however,
civil-forfeiture proceedings could be. Subclause 325(3) gives the court
discretion to hear and determine applications for orders under the Act in
respect of an interest in property or a thing or activities of a person who has
died.
This clause makes it clear that nothing in this Act limits or restricts
the operation of any other Commonwealth or non-governing Territory law providing
for the forfeiture of property or the imposition of pecuniary penalties. Nor
does the Act limit or restrict the remedies available to the Commonwealth, apart
from this Act, for the enforcement of its rights and the protection of its
interests.
Clause 327 Review of operation of Act
This
clause provides that the Minister must cause an independent review of the Act to
be undertaken as soon as practicable after the Act has been in operation for
three years. That review report must be in writing, provided to the Minister
and then tabled in both houses of Parliament.
If a Parliamentary
committee has reviewed the Act prior to that time, or started such a review, the
clause does not apply.
Clause 328 contains the general regulation making power. It provides
that the Governor-General may make regulations prescribing matters that are
required or permitted to be prescribed; or necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
CHAPTER 6 – INTERPRETING THIS
ACT
PART 6-1 – MEANING OF SOME
IMPORTANT CONCEPTS
Clause 329 Meaning of proceeds and instrument
This clause defines what constitutes the proceeds or an instrument
of an offence.
Subclause 329(1) provides that property is the proceeds
of an offence whether it is either wholly or partly derived or realised from the
commission of an offence, and whether it is either directly or indirectly
derived or realised from the commission of that offence.
Subclause 329(1)
also provides that the property so derived does not have to be situated in
Australia to be the proceeds of an offence for the purposes of the Act.
Paragraph 39(1)(g) empowers a court making a restraining order to make an
ancillary order requiring the person to bring restrained property within the
jurisdiction. Further, where applicable, the Commonwealth is able, through
operation of the Mutual Assistance in Criminal Matters Act 1987,
to secure the proceeds of an offence which are located overseas. The extended
reach of that Act provides that suspects cannot evade forfeiture by transferring
their proceeds overseas.
Subclause 329(2) provides that property
is an instrument of an offence if it was used, or intended to be used, in
or in connection with the commission of an offence. This is distinct from
proceeds of an offence, which flow from the commission of an offence.
For example, if a small plane is used to import narcotics into Australia, that
plane becomes an instrument of that offence, and the money provided to
the trafficker upon reaching Australia is the proceeds of that offence.
Property may be an instrument of an offence even though it was lawfully
acquired.
As with proceeds, property does not have to be located
within Australia to be an instrument of an offence under the
Act.
Subclause 329(3) provides that property may be the proceeds
or instrument of an offence even though no person has been convicted of
the offence. For example, in civil forfeiture proceedings based on conduct
constituting an indictable offence, it will be possible for the court to find
that the property was the proceeds of a Commonwealth offence without the
perpetrator of that offence being identified.
Clause 330 When
property becomes, remains and ceases to be proceeds or an
instrument
This clause establishes that money or other property which
is ‘proceeds of an offence’ or an ‘instrument of an
offence’ does not lose its nature as such merely because it is exchanged
for another item or is otherwise dealt with (for example by the sale of property
which is proceeds or an instrument, or by placing cash which is proceeds into a
bank account, or using cash which is proceeds to purchase property). This
prevents a person from transforming property which is proceeds or an
instrument into ‘clean’ property just by changing its
nature.
Subclause 330(1) deals with proceeds by providing that property
becomes the proceeds of an offence if it is wholly or partly derived or
realised from, or acquired with, proceeds of the offence. For example, if a
house is acquired for $300,000, and $100,000 of the money used is proceeds of an
offence, the entire property becomes the proceeds of the offence and is liable
to forfeiture.
Subclause 330(2) deals with instruments in a
similar manner.
Subclause 330(3) establishes that when the
proceeds or an instrument of an offence is used to acquire other
property not only does the original property retain its nature as proceeds or an
instrument, the property acquired with the proceeds takes on that nature, and
itself becomes the proceeds or an instrument of an offence.
Subclause
330(4) protects the rights of innocent third parties who acquire the proceeds or
instrument of an offence in certain circumstances.
An example of how
subclauses 330(1)-(4) would work is set out below:
• If A defrauds
the Commonwealth of $200,000, that money is the proceeds of an offence.
• If A then purchases a house entirely with those proceeds, the
house becomes the proceeds of an offence, and the money continues to be the
proceeds of an offence.
• However, if the seller of the house has
acquired the money for sufficient consideration (that is, the house was sold for
its value), and the seller does not know, and there is nothing that would cause
him or her to suspect that, at the time of sale, that the money was the proceeds
of an offence, that money then ceases to be the proceeds of an
offence.
• A person who receives the proceeds of an offence as a
gift (and therefore does not supply any consideration for the property) will be
liable to forfeit that property, whether or not they are aware of the
property’s origin.
A legal representative defending a person who
is charged with a criminal offence or contesting proceedings under the Act is
specifically protected by paragraph 330(4)(c). This clause recognises that
legal representatives are in a unique position, in that through the very nature
of their work they may often suspect that their client is paying with the
proceeds of an offence, but still have a duty to represent that person. If
legal representatives were under threat of their earnings being confiscated
every time they represented a client facing forfeiture action, there is a high
chance that such people would not be afforded legal representation. Other
professional groups do not need a specific exemption, and would be covered by
paragraph 330(4)(a).
Paragraphs 330(4)(d) and (e) provide that property
which is an instrument or proceeds of an offence ceases to have that character
if it is the subject of a forfeiture order under the Act, or an interstate
restraining order or an interstate forfeiture, and the relevant order has been
satisfied.
Paragraph 330(4)(f) allows property sold or disposed of under
the Act to cease to be the proceeds or an instrument of crime. For example,
where the Official Trustee is of the opinion that the restrained property is
likely to lose value unless sold, that property may be sold under clause 278.
The proceeds of that sale would then constitute the proceeds or instrument of
the offence, but the actual property would no longer have that nature.
Subclause 330(5) will prevent a person from engaging in a sham transaction
with the proceeds or an instrument of an offence to avoid forfeiture action. If
a person did re-acquire such property in lawful circumstances, it would be open
for them to prove lawful ownership. This clause is based on subsection 9(6) of
the NSW Criminal Assets Recovery Act 1990.
DIVISION 2 –
CONVICTED AND RELATED CONCEPTS
Clause 331 Meaning of
convicted of an offence
Clause 331 is based on subsections 5(1)(3) and (4) of the Proceeds of Crime Act 1987.
Subclause 331(1) extends the meaning of ‘conviction’ by
establishing four situations in which a person is taken to have been convicted
of an offence for the purposes of the Act. Paragraphs 331(1)(a) and (b)
establish that a person is taken to be convicted of an offence if the person was
actually convicted of an offence, or was found guilty of the offence but no
conviction was recorded.
If the person has been found guilty by a court
of one offence, and at sentencing another offence was taken into account, but no
formal finding of guilt in relation to that offence was made, the person is
deemed to have been convicted of that second offence: paragraph 331(1)(c).
Paragraph 331(1)(d) extends the definition of ‘convicted’ to a
person who has absconded in connection with the offence. ‘Abscond’
has a particular definition in the Act, set out in clause 334.
Subclause 331(2) establishes the jurisdiction in which the person is deemed
to have been convicted of an offence under each of the paragraphs of subclause
331(1). If the person was convicted pursuant to paragraphs 331(1)(a)-(c), the
person is deemed to have been convicted in the State or Territory in which the
relevant court finding was made. Where the person was convicted pursuant to
paragraph 331(1)(d), the person is taken to have been convicted in the State or
Territory where the information alleging the person’s commission of the
offence was laid.
In addition, in the case of an absconder, subclause
331(3) provides that, the person is taken to have been convicted before the
Supreme Court of the relevant State or Territory, and to have committed the
offence. Thus, applications in relation to the offence are to be made to the
Supreme Court of that State or Territory.
Subclause 331(4) specifies that
clause 331 does not apply to a foreign serious offence.
This clause, which is based on subsection 5(2) of the Proceeds of
Crime Act 1987, sets out the circumstances in which each type of conviction,
defined in clause 331, will be taken to have been quashed.
If a person
is taken to have been convicted of an offence pursuant to paragraphs 331(1)(a)
or (b), that conviction is quashed if the respective conviction or finding of
guilt, is quashed or set aside by a court.
If the person was taken to
have been convicted pursuant to paragraph 331(1)(c), there are two situations
which would result in the conviction being deemed to have been
quashed:
• if the conviction of the offence for which the person was
being sentenced (when the offence of which he is deemed to have been convicted
by paragraph 331(1)(c) was taken into account) is quashed or set aside;
or
• if the decision of a sentencing court to take into account the
offence (of which the person is deemed to be convicted by paragraph 331(1)(c))
is quashed or set aside.
If the person was taken to have been convicted
of an offence because he or she absconded in relation to that offence, the
conviction is deemed to be quashed if the person is brought before a court in
respect of the offence and either is discharged in respect of the offence, or a
conviction of the person for the offence is quashed or set aside: paragraph
332(1)(d).
Subclause 332(2) specifies that clause 332 does not apply to a
foreign serious offence.
Clause 333 Meaning of conviction day
This clause
identifies the day which is taken to be the conviction day under the Act in
various circumstances. Where the person has in fact been convicted the day on
which the person is convicted whether on indictment or summarily. This is the
day on which the court first acted on the finding that the offence was proven.
If the person has been found guilty of the offence but been discharged without a
conviction having been recorded the conviction day is the day of discharge.
Where an offence is taken into account on sentencing, the conviction day for
that offence is the day on which that offence is taken into account on
sentencing for another offence. In the case of an absconder the conviction day
is the day on which the person is taken to have absconded in relation to the
offence.
This clause, which is based on section 6 of the Proceeds of Crime Act
1987, establishes the definition of abscond for the purposes of the Act.
The concept of an absconder is relevant only in relation to conviction-based
forfeiture proceedings under the Bill. Although similar, the definition and its
application differ from that contained in section 6 of the Proceeds of Crime
Act 1987.
A person is taken to have absconded in connection with an
offence if an information has been laid alleging that the person committed the
offence, a warrant for the person’s arrest has been issued in relation to
that information, and at the end of six months from the date of issue of the
warrant either:
• the person cannot be found, or is not amenable to justice and there are no extradition proceedings on foot: paragraph 334(2)(a); or
• the person is outside Australia and extradition proceedings, which are subsequently terminated without an extradition order being made, are on foot: paragraph 334(2)(b).
The effect of paragraph 334(2)(b) is to extend the time at which a person outside Australia is taken to abscond where extradition proceedings are on foot.
Subclause 334(3) provides that, for the purposes of subclause 334(2), extradition proceedings taking place in a jurisdiction in relation to a person are not taken to be on foot unless the person is in custody, or is on bail, in that jurisdiction.
Before making a forfeiture order against a person who is taken to have
absconded, the court is required by clause 52 to be satisfied that the person
has absconded and did commit the offence. Automatic forfeiture is not available
against a person who is deemed to have absconded: clause 92(4).
Clause 335 Proceeds jurisdiction
This clause establishes
the nexus between the offence and the courts which have proceeds jurisdiction.
Whether or not a court has proceeds jurisdiction is dependent upon where the
relevant offence or offences took place. Where a law enforcement agency may not
be able to state with certainty where the offences occurred, a reasonable
suspicion will suffice.
If the conduct, or part of the conduct
constituting the offence to which the order would relate occurred in a State or
Territory or is reasonably suspected of having occurred in that State or
Territory, the courts which have jurisdiction to deal with criminal matters on
indictment in that State or Territory have proceeds jurisdiction.
If
all of the conduct constituting the offence to which the order would relate took
place outside Australia or is reasonably suspected of having occurred outside
Australia, the courts of any State or Territory which have jurisdiction to deal
with criminal matters on indictment have proceeds jurisdiction.
Subclause
335(4) addresses the question of jurisdiction where the property is located in a
particular State or Territory and the order would, if made, be a restraining
order under clause 19 or a forfeiture order under clause 49 but where there is
no known offender or identified offence. Despite subsections (2) and (3) the
courts that have proceeds jurisdiction for the order are those with jurisdiction
to deal with criminal matters on indictment in that particular State or
Territory.
Where a restraining order under clause 19 would be made
against an unknown offender that is not based on a particular offence or a
forfeiture order under clause 49 would be made on that basis and property which
would be restrained is located outside Australia, the court with proceeds
jurisdiction are State and Territory courts having power to deal with matters on
indictment.
Subclause 335(6) establishes that in certain circumstances a
magistrate may have proceeds jurisdiction for an order. This is the case if two
conditions are fulfilled: the order would, if made, be a restraining order under
clause 17 or a forfeiture order under clause 48 relating to an offence of which
a person has been convicted and that person was convicted before a magistrate.
This provision does not prevent, however, other courts having proceeds
jurisdiction for the order under subclause (2) or (3).
This clause expands what is meant by a person having derived
proceeds, a benefit or literary proceeds.
Proceeds, a benefit or literary proceeds may be derived by the person, or by
another person at the request or direction of the first person. The proceeds,
benefit or literary proceeds may be derived directly or
indirectly.
Clause 337 Meaning of effective control
To ensure that the operation of the Act is as effective as possible,
the Act extends its reach to property not necessarily owned by the person, but
which is under his or her effective control. This clause defines
‘effective control’ for the purposes of the Act.
Property
that is the proceeds or an instrument of crime will frequently be dealt with so
as to avoid it being traced back to its owner; this includes the transfer of all
interests in the property to another person. ‘Effective control’ is
defined in subclause 337(1) to provide that a person need not have a legal or
equitable interest in the property, or a right power or privilege in relation to
it, to have effective control of that property.
To make the effective
control provisions highly effective, subclause 337(2) deems property held on
trust for the ultimate benefit of a person to be under that person’s
effective control. Subclause 337(3) covers the situation where a person is one
of two or more beneficiaries under a discretionary trust. In such a case, the
person is taken to have effective ownership of an undivided proportion of the
trust property equal to one divided by the total number of beneficiaries.
Subclause 337(3) deems property that is
disposed of to another person without sufficient consideration, within six years
before or after an application for a restraining order, forfeiture order,
pecuniary penalty or literary proceeds order, to be under the effective control
of the person who disposed of the property. Such disposal will usually be by
way of gift, often to family members or other associates, and any control
exerted over the property would be disguised. This provision enables a court to
look at that property, without needing the prosecution to show that it is under
the effective control of the suspect.
Subclause 337(4) also enables a
court to look behind the corporate veil, in order to determine whether
particular property is under the effective control of the defendant. For
example, if the property is owned (either partly of wholly) by a company, the
court may look to a shareholdings in, debentures over or directorships of that
company: 337(4)(a). The court may also look to any trust which has a
relationship to the property: 337(4)(b), as well as the relationships between
the various natural persons, companies and/or trusts which have an interest in
the property: 337(4)(c).
PART 6-2 –
DICTIONARY
Clause 338 Dictionary
This clause
defines a number of terms used throughout the Act, including the following.
(Note: the terms set out below are not a complete list of the
definitional terms).
Approved examiner
An approved examiner is a person who holds an office, or who is included in a
class of people specified in the regulations, or who has been appointed by the
Minister under clause 183.
Persons who may be appointed as approved
examiners could include, for example, Members of the Administrative Appeals
Tribunal of certain rank, Members of the Administrative Appeals Tribunal with at
least five years admission as a practitioner, persons who have held judicial
office and have signified their willingness to be an approved examiner, former
Magistrates who have signified their willingness to be an approved examiner, and
persons with relevant qualifications (including at least five years admission as
a practitioner) who have signified their willingness to be an approved examiner.
AUSTRAC
AUSTRAC is defined as the
Australian Transaction Reports and Analysis Centre.
Australia
This term is defined to include the
external Territories. The external Territories are the Territory of Ashmore and
Cartier Islands, the Australian Antarctic Territory, Territory of Christmas
Island Act, Territory of Cocos (Keeling) Islands, Territory of Heard Island and
Macdonald Islands, and the Coral Sea Islands Territory.
Confiscated Assets Account
The Confiscated Assets
Account is the account established under clause 295 of this Bill, which replaces
the Confiscated Assets Reserve under the Proceeds of Crime Act 1987.
Confiscation order
This is defined to mean a forfeiture
order, a pecuniary penalty order and a literary proceeds order; it does not
include an automatic forfeiture order made under Part
2-3.
Conveyance
Conveyance is defined to include an
aircraft, vehicle or vessel.
Conviction day
This
term is defined in clause 333.
Corresponding law
Corresponding law is defined to mean a law of a State, the
Australian Capital Territory, the Northern Territory or Norfolk Island that is
declared by the regulations to be a law that corresponds to this Act. Declaring
a law to correspond to the Act has the effect of allowing orders under that law
to be registered and enforced in a Territory (other than the Australian Capital
Territory, the Northern Territory or Norfolk Island).
Criminal
proceeding
This is defined to have the same meaning as in the
Mutual Assistance in Criminal Matters Act 1987. In that Act, criminal
proceeding in relation to an offence means a trial of a person for the offence
or a committal proceeding in respect of the offence.
Deal
This is defined in the context of dealing with a particular
person’s property. The definition includes making a payment towards a debt
owed to that person, removing the property from Australia, receiving or making a
gift or the property and, if the property is covered by a restraining order,
engaging in a transaction that has the direct or indirect effect of reducing the
value of the person’s interest in the property.
Discretionary trust
This is defined as a trust
where a person is empowered to exercise any power of appointment or other
discretion and the exercise of that power or discretion (or failure to do so)
determines either who may benefit under the trust or how beneficiaries are to
benefit (or both of the above.)
Distributable funds
This terms identifies those moneys paid to the Commonwealth
which will be available for distribution from the Confiscated Assets Account.
Those moneys may be prescribed by regulation or identified as distributable
funds by the Official Trustee: subclauses 296(2) and 299(4).
Equitable sharing program
This definition is based
on the definition of the same phrase that appears in section 4 of the
Proceeds of Crime Act 1987.
The “equitable sharing program” is relevant to the clause 297
which provides for the payment of money out of the Confiscated Assets Account.
In particular, sub-paragraph 297(1)(a) provides for the continued operation of
the equitable sharing program.
Evidential
material
This encompasses evidence relating to any or all of the
property in respect of which action has been or could be taken under this Act,
benefits derived from the commission of an indictable offence and literary
proceeds.
This is defined to have the same meaning as in the Mutual Assistance
in Criminal Matters Act 1987. In that Act, ‘foreign forfeiture
order’ is defined to mean either an order, made under the law of a foreign
country, for the forfeiture of property in respect of an offence against the law
of that country, or a declaration, made under the law of a foreign country,
evidencing forfeiture of property under the law of that country.
This is defined to have the same meaning as in the Mutual Assistance
in Criminal Matters Act 1987. In that Act, ‘foreign pecuniary penalty
order’ is defined to mean
an order, made under the law of a foreign
country, imposing a pecuniary penalty in respect of an offence against the law
of that country; but such an order does not include an order for the payment of
a sum of money by way of compensation, restitution or damages to an injured
person.
Foreign restraining order
This is defined to
have the same meaning as in the Mutual Assistance in Criminal Matters Act
1987. In that Act, the term means an order made under the law of a foreign
country in respect of an offence against the law of that country, which is, or
purports to be, made for the purpose of preserving property (whether or not the
order also purports to do other things). This includes an order restraining a
particular person or persons from dealing with the property, an order freezing
the property, and an order directing either the seizure of the property or that
the property be taken into official custody or control.
Foreign
serious offence
This is defined to have the same meaning as in
the Mutual Assistance in Criminal Matters Act 1987, where it means a
serious offence against a law of a foreign country.
Forfeiture
order
This is defined as an order made under Division 1 of Part
2-2; it does not include automatic forfeiture.
The proceeds of an ‘indictable offence of Commonwealth
concern’ are in some circumstances liable to forfeiture under this Act.
This definition establishes that where the proceeds of a State or
Territory indictable offence are dealt with in contravention of a specified
Commonwealth law, that State or Territory offence becomes an ‘indictable
offence of Commonwealth concern’. For this to occur, the proceeds must be
dealt with in a way that contravenes a Commonwealth law on the importation or
exportation of goods; a communication using a postal, telegraphic or telephonic
service or a bank transaction (that isn’t State banking).
Interest
An interest may be in relation to property
or a thing. It includes a legal or equitable estate or interest in the
property or thing or a right, power or privilege in connection with the property
or thing. The definition captures all of the following types of interests:
present, future, vested and contingent.
Interstate forfeiture order
Retains the
definition of this phrase that appears in section 4 of the Proceeds of Crime
Act 1987. The effect of declaring interstate forfeiture orders to be within
the definition, by regulation, is that they can be registered and enforced in a
Territory other than the Australian Capital Territory, the Northern Territory or
Norfolk Island.
Interstate pecuniary penalty
order
Retains the definition of this phrase that appears in
section 4 of the Proceeds of Crime Act 1987. The effect of declaring
interstate pecuniary penalty orders to be within the definition, by regulation,
is that they can be registered and enforced in a Territory other than the
Australian Capital Territory, the Northern Territory or Norfolk Island.
Interstate restraining order
Retains the definition of
this phrase that appears in section 4 of the Proceeds of Crime Act 1987.
The effect of declaring interstate restraining orders to be within the
definition, by regulation, is that they can be registered and enforced in a
Territory other than the Australian Capital Territory, the Northern Territory or
Norfolk Island.
Mutual Assistance Act
`This means
the Mutual Assistance in Criminal Matters Act 1987. The objects of the
Mutual Assistance Act are to, amongst other things, regulate the provision by
Australia of international assistance in criminal matters when a request is made
by a foreign country for the forfeiture or confiscation of property in respect
of a foreign serious offence, the recovery of pecuniary penalties in respect of
a foreign serious offence, and the restraining of dealings in property that may
be forfeited or confiscated, or that may be needed to satisfy pecuniary
penalties imposed, because of the commission of a foreign serious offence.
Proceeds of confiscated assets
This term identifies
which funds recovered under the Bill, the Customs Act 1901 and the
Crimes Act 1914, are payable to the Confiscated Assets Account.
Related offence
This clause uses the same meaning
of related offence as section 8 of the Proceeds of Crime Act 1987. A
related offence for the purposes of the Bill is one in which the physical
elements of the offence are substantially the same as the physical elements of
another offence. This definition ensures, for example, that restraining orders
continue to run where minor changes are made to the charges which have been laid
against a person, or where a person is convicted of an offence other than that
with which he was charged, for example, pursuant to an alternative verdict
provision.
‘Serious offence’ is defined to include a limited number of
offences, which are generally serial in nature and often use the proceeds of one
offence to commit the next.
Sub-paragraphs (a)(i)-(v) establish four types of conduct which form the
basis of a ‘serious offence’. In general terms, those offences are
drug trafficking, money laundering and serious fraud. Paragraph (b) specifies
offences against the Migration Act 1958 relating to people smuggling and
the organised harbouring of illegal entrants. Four FTR offences are also
included in the definition of ‘serious offence’ (paragraphs
(c)-(e)). Those offences are failing to provide a report a transfer of currency
into and out of Australia, opening an account etc in a false name, providing
false or misleading information, and conducting a transaction to avoid the
reporting requirements. A terrorism offence as defined is also a serious offence
for the purposes of this Act. In addition to the defined offences, an inchoate
offence in relation to a defined ‘serious offence’ is defined by
paragraph to itself be a serious offence, and paragraph (h)
allows other indictable offences to be prescribed as serious offences for the
purposes of the Bill.
A person convicted of, or found more likely than
not to have committed, a serious offence may be liable under this Bill to
forfeit all of his or her property. Accordingly, the threshold for relevant
conduct to constitute a ‘serious offence’ is set in this definition
as an indictable offence punishable by imprisonment for three years or more.
The exception to this is the selected FTR offences, some of which are
only punishable by two or more years’ imprisonment; a monetary threshold
of $50 000 together with a specific provision to enable the restraining order
to be revoked have been included as safeguards in relation to these offences.
The effect of this definition is intended to be that individual transactions
totalling $50,000 or more in breach of Section 31 of the FTRA (conducting
transactions so as to avoid reporting requirements) constitute a serious
offence. As this offence is generally perpetrated by people conducting
transactions of amounts less than $10,000 (the FTRA cash transaction reporting
limit), the aggregate value of transactions must meet the threshold for this
offence rather than the value of individual transactions.
Sufficient consideration
This clause
explains what is meant by the term ‘sufficient consideration’ when
used in the Bill.
Suspended funds
This term is
used to identify those moneys in the Confiscated Assets Account which are not
available for distribution.
Tainted property
This
covers proceeds or an instrument of an indictable
offence.
Terrorism offence
A terrorism offence is an
offence against Part 5-3 of the Criminal Code.
Unlawful activity
Unlawful activity encompasses State and Territory indictable
offences, as well as offences against the laws of the Commonwealth and foreign
countries.