Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this Act, unless the contrary intention appears:
"ACC" means the Australian Crime Commission.
"account" means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for:
(a) a fixed term deposit; and
(b) a safety deposit box.
"ADI" (authorised deposit - taking institution) means:
(a) a body corporate that is an ADI for the purposes of the Banking Act 1959 ; or
(b) the Reserve Bank of Australia; or
(c) a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.
"AFP member" means a member or special member of the Australian Federal Police.
"agent" includes, if the agent is a corporation, the officers and agents of the corporation.
"appropriate officer" means the DPP or a person in a class of persons declared by the regulations to be within this definition.
"approved" means approved by the Minister in writing for the purposes of the provision in which the term occurs.
"Australia" , when used in a geographical sense, includes the external Territories.
"Bankruptcy Act" means the Bankruptcy Act 1966 .
"benefit" includes service or advantage.
"commencement of the Proceeds of Crime Act 2002" means the commencement of sections 3 to 338 of the Proceeds of Crime Act 2002 .
"Commissioner" means the Commissioner of the Australian Federal Police.
"Confiscated Assets Special Account" means the Account continued in existence under section 34A.
"confiscation order" means a forfeiture order or a pecuniary penalty order.
"co-operative housing society" means a society registered or incorporated as a co - operative housing society or similar society under a law of a State or Territory.
"corresponding law" means a law of a State that is declared by the regulations to be a law that corresponds to this Act.
"Crimes Act" means the Crimes Act 1914 .
"criminal investigation" , in relation to a foreign serious offence, has the same meaning as in the Mutual Assistance Act.
"criminal proceeding" , in relation to a foreign serious offence, has the same meaning as in the Mutual Assistance Act.
"Customs Act" means the Customs Act 1901 .
"Customs officer" means an officer of Customs within the meaning of the Customs Act.
"director" , in relation to a financial institution or a corporation, means:
(a) if the institution or corporation is a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory--a constituent member of the body corporate;
(b) any person occupying or acting in the position of director of the institution or corporation, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and
(c) any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act.
"distributable funds" means amounts standing to the credit of the Confiscated Assets Special Account that is:
(a) identified as distributable funds in accordance with the regulations (other than such money as is identified by the Official Trustee under subsection 34E(2) as suspended funds); or
(b) identified by the Official Trustee under subsection 34E(3) as distributable funds.
"DPP" means the Director of Public Prosecutions.
"encumbrance" , in relation to property, includes any interest, mortgage, charge, right, claim or demand in respect of the property.
"equitable sharing program" means an arrangement under which any or all of the following happen:
(a) the Commonwealth shares with a participating State a proportion of any proceeds of any unlawful activity recovered under a Commonwealth law, where, in the opinion of the Minister , that State has made a significant contribution to the recovery of those proceeds or to the investigation or prosecution of the relevant unlawful activity;
(b) each participating State shares with the Commonwealth any proceeds resulting from a breach of the criminal law of that State where, in the opinion of the appropriate Minister of that State, officers of a law enforcement agency of the Commonwealth have made a significant contribution to the recovery of those proceeds;
(c) the Commonwealth shares with a foreign country a proportion of any proceeds of any unlawful activity recovered under a Commonwealth law where, in the opinion of the Minister , the foreign country has made a significant contribution to the recovery of those proceeds or to the investigation or prosecution of the unlawful activity.
"executive officer" , in relation to a financial institution or a corporation, means any person, by whatever name called and whether or not he or she is a director of the institution or corporation, who is concerned, or takes part, in the management of the institution or corporation.
"facsimile copy" means a copy obtained by facsimile transmission.
"financial institution" means:
(a) an ADI; or
(b) a co - operative housing society; or
(d) a body corporate that is, or that, if it had been incorporated in Australia, would be, a financial corporation within the meaning of paragraph 51(xx) of the Constitution.
"fixed term deposit" means an interest bearing deposit lodged for a fixed period.
"foreign forfeiture order" has the same meaning as in the Mutual Assistance Act.
"foreign pecuniary penalty order" has the same meaning as in the Mutual Assistance Act.
"foreign restraining order" has the same meaning as in the Mutual Assistance Act.
"foreign serious offence" has the same meaning as in the Mutual Assistance Act.
"forfeiture order" means an order under subsection 19(1).
"GBE" means a prescribed government business enterprise.
"indictable offence" means an offence against a law of the Commonwealth, or a law of a Territory, that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
"interest" , in relation to property, means:
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege in connection with the property;
whether present or future and whether vested or contingent.
"interstate forfeiture order" means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.
"interstate indictable offence" means an offence against a law of a State, being an offence in relation to which an interstate forfeiture order or an interstate pecuniary penalty order may be made under a corresponding law of that State.
"interstate pecuniary penalty order" means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.
"interstate restraining order" means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.
"law enforcement authority" means the Australian Federal Police or the ACC .
"magistrate" includes a justice of the peace.
"magistrate's court" means a court of summary jurisdiction constituted by a Stipendiary Magistrate, a Police Magistrate or a Special Magistrate.
"Mutual Assistance Act" means the Mutual Assistance in Criminal Matters Act 1987 .
"narcotic substance" means:
(a) a narcotic substance within the meaning of the Customs Act; or
(b) a substance declared by the regulations to be a substance to which this definition applies.
"officer" means a director, secretary, executive officer or employee.
"Official Trustee" means the Official Trustee in Bankruptcy.
"ordinary indictable offence" means an indictable offence that is not a serious offence.
"pecuniary penalty order" means an order under subsection 26(1).
"penalty amount" , in relation to a pecuniary penalty order against a person, means the amount that the person is liable to pay the Commonwealth under the order.
"petition" means a petition under the Bankruptcy Act.
"police officer" means:
(a) an AFP member; or
(b) a member of the police force of a State or Territory.
"premises" includes:
(a) a structure, building, aircraft, vehicle or vessel;
(b) a place (whether enclosed or built upon or not); and
(c) a part of premises (including premises of a kind referred to in paragraph ( a) or (b)).
"prescribed officer" means an SES employee or acting SES employee in the Department .
"prescribed time" , in relation to a warrant issued under Division 1 of Part III in relation to property, means:
(a) where an information is laid in respect of the relevant offence either before the warrant is issued or within 48 hours after the warrant is issued--the day that is one month after the date of the issue of the warrant; or
(b) in any other case--the time that is 48 hours after the time of the issue of the warrant.
"proceeds" , in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence.
"proceeds of confiscated assets" means the following:
(a) the remainder of the proceeds referred to in paragraph 9A(c) of the Crimes Act 1914 ;
(b) the money referred to in paragraph 208DA(3)(a) of the Customs Act 1901 ;
(c) the remainder of the proceeds referred to in paragraph 208DA(3)(b) of the Customs Act 1901 ;
(d) the amount referred to in subsection 243B(4) of the Customs Act 1901 ;
(e) the remainder of the money referred to in paragraph 243G(6)(a) of the Customs Act 1901 ;
(f) the remainder of the proceeds referred to in paragraph 243G(6)(b) of the Customs Act 1901 ;
(g) the remainder of the money referred to in subparagraph 20(3)(b)(i);
(h) the remainder of the proceeds referred to in subparagraph 20(3)(b)(ii);
(i) the amount referred to in subsection 26(8);
(j) the remainder of the money referred to in subparagraph 30(4)(b)(i);
(k) the remainder of the proceeds referred to in subparagraph 30(4)(b)(ii);
(l) an amount referred to in subsection 33(1) or (2);
(m) an amount referred to in paragraph 34(f);
(n) the remainder of the money referred to in paragraph 49(6)(a);
(o) the remainder of the proceeds referred to in paragraph 49(6)(b);
(p) the remainder of the money referred to in paragraph 63(4)(a);
(q) the remainder of the proceeds referred to in paragraph 63(4)(b).
"production order" means an order under section 66.
"property" means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible and includes an interest in any such real or personal property.
"property-tracking document" , in relation to an offence, means:
(a) a document relevant to:
(i) identifying, locating or quantifying property of a person who committed the offence; or
(ii) identifying or locating any document necessary for the transfer of property of a person who committed the offence; or
(b) a document relevant to:
(i) identifying, locating or quantifying tainted property in relation to the offence; or
(ii) identifying or locating any document necessary for the transfer of tainted property in relation to the offence.
"registrable property" means property title to which is passed by registration on a register kept pursuant to a provision of any law of the Commonwealth or of a State or Territory.
"relevant application period" , in relation to a person's conviction of an indictable offence, means the period of 6 months after:
(a) where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(a)--the day on which the person was convicted of the offence;
(b) where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(b)--the day on which the person was discharged without conviction;
(c) where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(c)--the day on which the court took the offence into account in passing sentence for the other offence referred to in that paragraph; or
(d) where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(d)--the day on which the person is to be taken to have absconded in connection with the offence.
"relevant offence" , in relation to tainted property, means an offence by reason of the commission of which the property is tainted property.
"relevant Supreme Court" means:
(a) in relation to property seized under a warrant issued under Division 1 of Part III--the Supreme Court of the State or Territory in which an information in respect of the relevant offence has been, or is to be, laid;
(b) in relation to property seized under section 38--the Supreme Court of the State or Territory in which an information in respect of the relevant offence has been laid; or
(c) in relation to a person's conviction of an offence or the charging, or proposed charging, of a person with an offence--the Supreme Court of the State or Territory in which the person has been convicted or has been, or is to be, charged with the offence.
"restraining order" means an order under subsection 43(2).
"State" includes the Australian Capital Territory and the Northern Territory.
"State indictable offence" means an offence against a law of a State that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
"suspended funds" means amounts standing to the credit of the Confiscated Assets Special Account that is:
(a) identified as suspended funds in accordance with the regulations (other than such money as is identified by the Official Trustee under subsection 34E(3) as distributable funds); or
(b) identified by the Official Trustee under subsection 34E(2) as suspended funds.
"tainted property" , in relation to an offence, means:
(a) property used in, or in connection with, the commission of the offence; or
(b) proceeds of the offence;
and when used without reference to a particular offence means tainted property in relation to an indictable offence.
"Territory" does not include the Australian Capital Territory or the Northern Territory.
"unlawful activity" means an act or omission that constitutes an offence against a law in force in the Commonwealth, a State, a Territory or a foreign country.
(2) A reference in this Act to a person being charged with an offence is a reference to an information being laid against the person for the offence whether or not:
(a) a summons to require the attendance of the person to answer the information has been issued; or
(b) a warrant for the apprehension of the person has been issued.
(3) A reference in this Act to a benefit derived by a person includes a reference to:
(a) a benefit derived, directly or indirectly, by the person; and
(b) a benefit derived, directly or indirectly, by another person at the request or direction of the first person.
(3A) For the purposes of this Act, in determining whether a person has derived substantial benefit from the commission of 2 or more public fraud offences, have regard to the aggregate of the benefits derived by the person from the commission of those offences.
(4) A reference in this Act to the property of a person includes a reference to property in respect of which the person has the beneficial interest.
(5) A reference in this Act to a criminal offence is a reference to an offence against a law of the Commonwealth or of a Territory.
(6) Without prejudice to its effect by virtue of subsection ( 5), this Act has effect as if a reference in this Act to a criminal offence included a reference to an offence against a law of a State.
(7) A reference in this Act to acquiring property, or an interest in property, for sufficient consideration is a reference to acquiring the property or the interest for a consideration that is sufficient and that, having regard solely to commercial considerations, reflects the value of the property or the interest.
(8) For the purposes of this Act, a person shall not be regarded as a director within the meaning of paragraph ( c) of the definition of director in subsection ( 1) by reason only that the directors act on advice given by that person in the proper performance of the functions attaching to his or her professional capacity or to his or her business relationship with the directors of the financial institution or corporation, as the case may be.