PROCEEDS OF CRIME ACT 2002

Commonwealth Consolidated Acts

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PROCEEDS OF CRIME ACT 2002

TABLE OF PROVISIONS

Long Title

CHAPTER 1--Introduction

PART 1-1--PRELIMINARY

1. Short title
2. Commencement
3. Identifying defined terms
4. Application of the Criminal Code

PART 1-2--OBJECTS

5. Principal objects

PART 1-3--OUTLINE OF THIS ACT

6. General
7. The confiscation scheme (Chapter 2)
8. Information gathering (Chapter 3)
9. Administration (Chapter 4)
10. Miscellaneous (Chapter 5)
11. Interpreting this Act (Chapter 6)

PART 1-4--APPLICATION

Division 1--General

12. Act to bind Crown
13. Act to apply both within and outside Australia
14. Application
14A. Concurrent operation of State and Territory laws

Division 2--The national unexplained wealth provisions

Subdivision A--General

14B. Constitutional basis of the national unexplained wealth provisions
14C. What is a participating State ?
14D. Meaning of unexplained wealth
14E. Meaning of information gathering
14F. When a non - participating State is a cooperating State

Subdivision B--Rollback of particular express amendments

14G. Effect of rollback by participating States on unexplained wealth proceedings
14H. Effect of rollback by self - governing Territories on unexplained wealth proceedings
14J. Effect of rollback by participating States on action taken under State reference information gathering provisions
14K. Effect of rollback by self - governing Territories on action taken under State reference information gathering provisions

Subdivision C--Interaction of the national unexplained wealth provisions and orders with State and Territory laws and orders

14L. Concurrent operation of State and Territory laws with national unexplained wealth provisions

Subdivision D--Other matters

14M. Information gathering by participating States and self - governing Territories
14N. Transitional, application and saving provisions relating to the national cooperative scheme on unexplained wealth

CHAPTER 2--The confiscation scheme

PART 2-1A----FREEZING ORDERS

15A. Simplified outline of this Part

Division 1--Making freezing orders

15B. Making freezing orders

Division 2--How freezing orders are obtained

15C. Affidavit supporting application made in person
15D. Applying for freezing orders by telephone or other electronic means
15E. Making order by telephone etc.
15F. Unsigned freezing orders in court proceedings
15FA. Prohibition of publication of evidence--proceedings for freezing orders
15G. Offence for making false statements in applications
15H. Offences relating to orders made under section 15E

Division 3--Giving effect to freezing orders

15J. Service of freezing order etc. on financial institution and account - holder
15K. Freezing order does not prevent withdrawals or transactions to enable financial institution to meet its liabilities
15L. Offence for contravening freezing orders
15M. Protection from suits etc. for those complying with orders

Division 4--Duration of freezing orders

15N. When a freezing order is in force
15P. Order extending a freezing order

Division 5--Varying scope of freezing orders

15Q. Magistrate may vary freezing order to allow withdrawals or transactions to meet reasonable expenses

Division 6--Revoking freezing orders

15R. Application to revoke a freezing order
15S. Notice of revocation of a freezing order

PART 2-1--RESTRAINING ORDERS

16. Simplified outline of this Part

Division 1--Making restraining orders

17. Restraining orders--people convicted of or charged with indictable offences
18. Restraining orders--people suspected of committing serious offences
19. Restraining orders--property suspected of being proceeds of indictable offences etc.
20. Restraining orders--people suspected of deriving literary proceeds from indictable offences etc.
20A. Restraining orders--unexplained wealth
21. Refusal to make an order for failure to give undertaking
22. Restraining orders must only relate to one suspect
23. Conditions on restraining orders
24. Allowance for expenses
24A. Excluding property from or revoking restraining orders in certain cases when expenses are not allowed

Division 2--How restraining orders are obtained

25. Proceeds of crime authority may apply for a restraining order
26. Notice of application
27. Proceeds of crime authority may choose under which section it applies for a restraining order
28. Prejudice to investigations
28A. Prohibition of publication of evidence--proceedings for restraining orders

Division 3--Excluding property from restraining orders

29. Excluding property from certain restraining orders
29A. Excluding property from a restraining order made under section 20A
30. Application to exclude property from a restraining order before restraining order has been made
31. Application to exclude property from a restraining order after restraining order has been made
32. Application not to be heard unless responsible authority has had reasonable opportunity to conduct an examination

Division 4--Giving effect to restraining orders

33. Notice of a restraining order
34. Registering restraining orders
35. Notifying registration authorities of exclusions from or variations to restraining orders
36. Court may set aside a disposition contravening a restraining order
37. Contravening restraining orders

Division 5--Further orders

38. Court may order Official Trustee to take custody and control of property
39. Ancillary orders
39A. Privilege against self incrimination etc. does not apply
39B. Application to revoke ancillary order
40. Contravening ancillary orders relating to foreign property

Division 6--Duration of restraining orders

41. When a restraining order is in force
42. Application to revoke a restraining order
43. Notice of revocation of a restraining order
44. Giving security etc. to revoke etc. a restraining order
45. Cessation of certain restraining orders
45A. Cessation of restraining orders relating to unexplained wealth

PART 2-2--FORFEITURE ORDERS

46. Simplified outline of this Part

Division 1--Making forfeiture orders

47. Forfeiture orders--conduct constituting serious offences
48. Forfeiture orders--convictions for indictable offences
49. Forfeiture orders--property suspected of being proceeds of indictable offences etc.
50. Existence of other confiscation orders
51. Acquittals do not affect forfeiture orders under section 47 or 49
52. Making of forfeiture order if person has absconded

Division 2--Other relevant matters when a court is considering whether to make forfeiture orders

54. Presumption in certain cases that property is an instrument of an offence
55. Forfeiture orders can extend to other interests in property
56. Forfeiture orders must specify the value of forfeited property
57. Court may make orders relating to buying back forfeited property
57A. Applying for an order under section 57
58. The court may also make supporting directions

Division 3--How forfeiture orders are obtained

59. Proceeds of crime authority may apply for a forfeiture order
60. Additional application for a forfeiture order
61. Notice of application
62. Amending an application
63. Court may dispense with notice requirements if person has absconded
64. Procedure on application
65. Applications to courts before which persons are convicted

Division 4--Effect of forfeiture orders

66. What property is forfeited and when--general rule
67. First exception--registrable property
68. Second exception--if a joint owner dies before the order was made
68A. Third exception--property located outside Australia
69. When can the Commonwealth begin dealing with forfeited property?
70. How must the Commonwealth deal with forfeited property?
71. Dealings with forfeited property

Division 4A--Controlled property

71A. Official Trustee may take custody and control of forfeited property

Division 5--Reducing the effect of forfeiture orders

Subdivision A--Relieving hardship

72. Relieving certain dependants from hardship

Subdivision B--Excluding property from a forfeiture order

73. Making exclusion orders
74. Applying for exclusion orders
75. Giving notice of matters relevant to an application
76. When an application can be heard

Subdivision C--Compensating for proportion of property not derived or realised from commission of any offence

77. Making compensation orders
78. Application for compensation orders
79. Giving notice of matters relevant to an application
79A. When an application can be heard

Division 6--The effect on forfeiture orders of acquittals and quashing of convictions

80. Forfeiture order made under section 47 or 49 unaffected by acquittal or quashing of conviction
81. Discharge of forfeiture order made under section 48 on quashing of conviction
82. Notice of application for confirmation of forfeiture order
83. Procedure on application for confirmation of forfeiture order
84. Court may confirm forfeiture order
85. Effect of court's decision on confirmation of forfeiture order
86. Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture order

Division 7--Miscellaneous

87. Giving notice if a forfeiture order is discharged on appeal or by quashing of a conviction
88. Returning property etc. following the discharge of a forfeiture order
89. Person with interest in forfeited property may buy back the interest
90. Buying out other interests in forfeited property

PART 2-3--FORFEITURE ON CONVICTION OF A SERIOUS OFFENCE

91. Simplified outline of this Part

Division 1--Forfeiture on conviction of a serious offence

92. Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence
92A. Notice of date of forfeiture under this Part, etc.
93. Making an extension order extending the period before property is forfeited
94. Excluding property from forfeiture under this Part
94A. Compensating for proportion of property not derived or realised from commission of any offence
95. Court may declare that property has been forfeited under this Part

Division 2--Effect of forfeiture on conviction of a serious offence

96. When is property forfeited--general rule
97. First exception--registrable property
98. Second exception--if a joint owner dies
98A. Third exception--property located outside Australia
99. When can the Commonwealth begin dealing with forfeited property?
100. How must forfeited property be dealt with?
101. Minister may give supporting directions

Division 2A--Controlled property

101A. Official Trustee may take custody and control of forfeited property

Division 3--Recovery of forfeited property

102. Court may make orders relating to transfer of forfeited property etc.
103. Court may make orders relating to buying back forfeited property
104. Applying for an order under section 102
104A. Applying for an order under section 103
105. Person with interest in forfeited property may buy back the interest
106. Buying out other interests in forfeited property

Division 4--The effect on forfeiture of convictions being quashed

107. The effect on forfeiture of convictions being quashed
108. Notice of application for confirmation of forfeiture
109. Procedure on application for confirmation of forfeiture
110. Court may confirm forfeiture
111. Effect of court's decision on confirmation of forfeiture
112. Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture
113. Giving notice if forfeiture ceases to have effect on quashing of a conviction
114. Returning property etc. following forfeiture ceasing to have effect

PART 2-4--PECUNIARY PENALTY ORDERS

115. Simplified outline of this Part

Division 1--Making pecuniary penalty orders

116. Making pecuniary penalty orders
117. Pecuniary penalty orders made in relation to serious offence convictions
118. Making of pecuniary penalty order if person has absconded
119. Ancillary orders
120. Acquittals do not affect pecuniary penalty orders

Division 2--Penalty amounts

Subdivision A--General

121. Determining penalty amounts

Subdivision B--The value of benefits derived from the commission of an offence

122. Evidence the court is to consider
123. Value of benefits derived--non - serious offences
124. Value of benefits derived--serious offences
125. Value of benefits may be as at time of assessment
126. Matters that do not reduce the value of benefits
127. Benefits already the subject of pecuniary penalty
128. Property under a person's effective control
129. Effect of property vesting in an insolvency trustee

Subdivision C--Reducing penalty amounts

130. Reducing penalty amounts to take account of forfeiture and proposed forfeiture
131. Reducing penalty amounts to take account of tax paid
132. Reducing penalty amounts to take account of fines etc.

Subdivision D--Varying pecuniary penalty orders to increase penalty amounts

133. Varying pecuniary penalty orders to increase penalty amounts

Division 3--How pecuniary penalty orders are obtained

134. Proceeds of crime authority may apply for a pecuniary penalty order
135. Additional application for a pecuniary penalty order
136. Notice of application
137. Amendment of application
138. Procedure on application
139. Applications to courts before which persons are convicted

Division 4--Enforcement of pecuniary penalty orders

140. Enforcement of pecuniary penalty orders
141. Property subject to a person's effective control
142. Charge on property subject to restraining order
143. Charges may be registered
144. Penalty amounts exceeding the court's jurisdiction

Division 5--The effect on pecuniary penalty orders of convictions being quashed

145. Pecuniary penalty order unaffected if not made in relation to a conviction
146. Discharge of pecuniary penalty order if made in relation to a conviction
147. Notice of application for confirmation or variation of pecuniary penalty order
148. Procedure on application for confirmation or variation of pecuniary penalty order
149. Court may confirm pecuniary penalty order
149A. Court may vary pecuniary penalty order
150. Effect of court's decision on confirmation or variation of pecuniary penalty order

PART 2-5--LITERARY PROCEEDS ORDERS

151. Simplified outline of this Part

Division 1--Making literary proceeds orders

152. Making literary proceeds orders
153. Meaning of literary proceeds
154. Matters taken into account in deciding whether to make literary proceeds orders
155. Additional literary proceeds orders
156. Ancillary orders
157. Acquittals do not affect literary proceeds orders

Division 2--Literary proceeds amounts

158. Determining literary proceeds amounts
159. Deductions from literary proceeds amounts
160. Reducing literary proceeds amounts to take account of tax paid
161. Varying literary proceeds orders to increase literary proceeds amounts

Division 3--How literary proceeds orders are obtained

162. Proceeds of crime authority may apply for a literary proceeds order
163. Notice of application
164. Amendment of application
165. Procedure on application
166. Applications to courts before which persons are convicted

Division 4--Enforcement of literary proceeds orders

167. Enforcement of literary proceeds orders
168. Property subject to a person's effective control
169. Charge on property subject to restraining order
170. Charges may be registered
171. Literary proceeds amounts exceeding the court's jurisdiction

Division 5--The effect on literary proceeds orders of convictions being quashed

172. Literary proceeds order unaffected if not made in relation to a conviction
173. Discharge of literary proceeds order if made in relation to a conviction
174. Notice of application for confirmation of literary proceeds order
175. Procedure on application for confirmation of literary proceeds order
176. Court may confirm literary proceeds order
177. Effect of court's decision on confirmation of literary proceeds order

Division 6--Literary proceeds orders covering future literary proceeds

178. Literary proceeds orders can cover future literary proceeds
179. Enforcement of literary proceeds orders in relation to future literary proceeds

PART 2-6--UNEXPLAINED WEALTH ORDERS

179A. Simplified outline of this Part

Division 1--Making unexplained wealth orders

179B. Making a preliminary unexplained wealth order requiring a person to appear
179C. Application to revoke a preliminary unexplained wealth order
179CA. Notice and procedure on application to revoke preliminary unexplained wealth order
179D. Notice of revocation of a preliminary unexplained wealth order
179E. Making an unexplained wealth order
179EA. Refusal to make an order for failure to give undertaking
179EB. Costs
179F. Ancillary orders

Division 2--Unexplained wealth amounts

179G. Determining unexplained wealth amounts
179H. Effect of property vesting in an insolvency trustee
179J. Reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc.
179K. Varying unexplained wealth orders to increase amounts
179L. Relieving certain dependants from hardship

Division 3--How unexplained wealth orders are obtained

179M. Proceeds of crime authority may apply for an unexplained wealth order
179N. Notice of application
179P. Additional application for an unexplained wealth order
179Q. Procedure on application and other notice requirements

Division 4--Enforcement of unexplained wealth orders

179R. Enforcement of an unexplained wealth order
179S. Property subject to a person's effective control
179SA. Charge on property subject to restraining order
179SB. Charges may be registered
179T. Amounts exceeding the court's jurisdiction

Division 5--Oversight

179U. Parliamentary supervision

CHAPTER 3--Information gathering

PART 3-1--EXAMINATIONS

Division 1--Examination orders

180. Examination orders relating to restraining orders
180A. Examination orders relating to applications for exclusion from forfeiture
180B. Examination orders relating to applications for compensation
180C. Examination orders relating to applications under section 102
180D. Examination orders relating to enforcement of confiscation orders
180E. Examination orders relating to restraining orders revoked under section 44
181. Examination orders relating to applications relating to quashing of convictions
181A. Examination orders relating to applications under section 57A
181B. Examination orders relating to applications under section 104A
182. Applications for examination orders

Division 2--Examination notices

183. Examination notices
184. Additional examination notices
185. Form and content of examination notices

Division 3--Conducting examinations

186. Time and place of examination
187. Requirements made of person examined
188. Examination to take place in private
189. Role of the examinee's lawyer
190. Examination by video link or telephone
191. Record of examination
192. Questions of law
193. Approved examiner may restrict publication of certain material
194. Protection of approved examiner etc.

Division 4--Offences

195. Failing to attend an examination
196. Offences relating to appearance at an examination
197. Privileged information
197A. Giving false or misleading answers or documents
198. Admissibility of answers and documents
199. Unauthorised presence at an examination
200. Breaching conditions on which records of statements are provided
201. Breaching directions preventing or restricting publication

PART 3-2--PRODUCTION ORDERS

202. Making production orders
203. Contents of production orders
204. Powers under production orders
205. Retaining produced documents
206. Privilege against self - incrimination etc. does not apply
207. Varying production orders
208. Jurisdiction of magistrates
209. Making false statements in applications
210. Disclosing existence or nature of production orders
211. Failing to comply with a production order
212. Destroying etc. a document subject to a production order

PART 3-3--NOTICES TO FINANCIAL INSTITUTIONS

213. Giving notices to financial institutions
214. Contents of notices to financial institutions
215. Protection from suits etc. for those complying with notices
216. Making false statements in notices
217. Disclosing existence or nature of notice
218. Failing to comply with a notice

PART 3-4--MONITORING ORDERS

219. Making monitoring orders
220. Contents of monitoring orders
221. Protection from suits etc. for those complying with orders
222. Making false statements in applications
223. Disclosing existence or operation of monitoring order
224. Failing to comply with monitoring order

PART 3-5--SEARCH AND SEIZURE

Division 1--Search warrants

Subdivision A--Issuing search warrants

225. Issuing a search warrant
226. Additional contents of the information
227. Contents of warrants
228. The things that are authorised by a search warrant

Subdivision B--Applying for search warrants by telephone or other electronic means

229. Applying for search warrants by telephone or other electronic means
230. Issuing warrants by telephone etc.
231. Unsigned telephone warrants in court proceedings
232. Offence for stating incorrect names in telephone warrants
233. Offence for unauthorised form of warrant
234. Offence for execution etc. of unauthorised form of warrant
235. Offence for giving unexecuted form of warrant

Subdivision C--Executing search warrants

236. Warrants that must be executed only during particular hours
237. Restrictions on personal searches
238. Availability of assistance and use of force in executing a warrant
239. Announcement before entry
240. Details of warrant to be given to occupier etc.
241. Occupier entitled to be present during search
242. Specific powers available to officers executing the warrant
243. Use of equipment to examine or process things
244. Moving things to another place for examination or processing
245. Use of electronic equipment at premises
246. Person with knowledge of a computer or a computer system to assist access etc.
247. Securing electronic equipment
248. Compensation for damage to electronic equipment
249. Copies of seized things to be provided
250. Providing documents after execution of a search warrant

Division 2--Stopping and searching conveyances

251. Searches without warrant in emergency situations
252. How an authorised officer exercises a power under section 251

Division 3--Dealing with things seized

Subdivision A--General requirements

253. Receipts for things seized under warrant
254. Responsibility for things seized
255. Effect of obtaining forfeiture orders

Subdivision B--Things seized as evidence

256. Returning seized things
257. Authorised officer may apply for a thing to be retained for a further period
258. Magistrate may order that the thing be retained

Subdivision C--Things seized on other grounds

259. Return of seized property to third parties
260. Return of seized property if applications are not made for restraining orders or forfeiture orders
261. Effect of obtaining restraining orders
262. Effect of refusing applications for restraining orders or forfeiture orders

Division 4--General

263. Application of Part
264. Law relating to legal professional privilege not affected
265. Jurisdiction of magistrates
266. Offence for making false statements in applications

PART 3-6--DISCLOSURE OF INFORMATION

266A. Disclosure

CHAPTER 4--Administration

PART 4-1--POWERS AND DUTIES OF THE OFFICIAL TRUSTEE

Division 1--Preliminary

267. Property to which the Official Trustee's powers and duties under this Part apply
267AA. Additional property to which the Official Trustee's powers under Division 2 apply
267AB. Additional property to which the Official Trustee's powers under Division 3 apply
267A. Additional property to which the Official Trustee's powers and duties under Division 3 apply

Division 2--Obtaining information about controlled property

268. Access to books
269. Suspect to assist Official Trustee
270. Power to obtain information and evidence
271. Privilege against self - incrimination
272. Offences relating to exercise of powers under section 268 or 269
273. Failure to provide information
274. Failure of person to attend
275. Refusal to be sworn or give evidence etc.
275A. Failure to produce a book

Division 3--Dealings relating to controlled property

276. Preserving controlled property
277. Rights attaching to shares
278. Destroying or disposing of property
279. Notice of proposed destruction or disposal etc.
280. Procedure if person objects to proposed destruction or disposal
281. Proceeds from sale of property
281A. Official Trustee does not acquire any additional proprietary interests in controlled property

Division 4--Discharging pecuniary penalty orders and literary proceeds orders

282. Direction by a court to the Official Trustee in relation to certain restraining orders
282A. Direction by a court to the Official Trustee in relation to unexplained wealth orders
283. Court may include further directions etc.
284. Official Trustee to carry out directions
285. Official Trustee not to carry out directions during appeal periods
286. Discharge of pecuniary penalty orders and literary proceeds orders by credits to the Confiscated Assets Account

Division 5--Miscellaneous

287. Money not to be paid into the Common Investment Fund
288. Official Trustee's costs etc.
289. Income generated from controlled property
290. Official Trustee is not personally liable
291. Indemnification of Official Trustee

PART 4-2--LEGAL ASSISTANCE

293. Payments to legal aid commissions for representing suspects and other persons
294. Disclosure of information to legal aid commissions

PART 4-3--CONFISCATED ASSETS ACCOUNT

Division 1--Establishment, crediting and payments out of the Account

295. Establishment of Account
296. Credits to the Account
297. Payments out of the Account

Division 2--The national cooperative scheme on unexplained wealth

297A. The scheme
297B. Sharing with foreign countries
297C. Sharing with States and Territories

Division 3--Programs for expenditure on crime prevention etc.

298. Programs for expenditure on law enforcement, drug treatment etc.

Division 4--Grants to the States and Territories for crime prevention etc.

298A. Grants to the States and Territories for crime prevention etc.
298B. Terms and conditions of grants
298C. Minister has powers etc. of the Commonwealth
298D. Conferral of powers on the Minister
298E. Channelling State/Territory grants through the Federation Reform Fund
298F. Debits from the Federation Reform Fund

PART 4-4--CHARGES OVER RESTRAINED PROPERTY TO SECURE CERTAIN AMOUNTS PAYABLE TO THE COMMONWEALTH

302A. Charges to secure amounts payable under subsection 293(3)
302B. When the charge ceases to have effect
302C. Priority of charge

PART 4-5--ENFORCEMENT OF INTERSTATE ORDERS IN CERTAIN TERRITORIES

Division 1--Interstate restraining orders

303. Registration of interstate restraining orders
304. Effect of registration
305. Duration of registration
306. Cancellation of registration
307. Charge on property subject to registered interstate restraining order
308. Powers of Official Trustee in relation to interstate restraining orders

Division 2--Interstate forfeiture orders

309. Registration of interstate forfeiture orders
310. Effect of registration
311. Duration of registration
312. Cancellation of registration

Division 3--Miscellaneous

313. Interim registration of faxed copies

CHAPTER 5--Miscellaneous

314. State and Territory courts to have jurisdiction
315. Proceedings are civil, not criminal
315A. Court may hear multiple applications at same time
315B. Transfer of responsibility for principal orders and applications
315C. Official Trustee may bring proceedings on behalf of the Commonwealth
316. Consent orders
317. Onus and standard of proof
318. Proof of certain matters
318A. Admissibility in proceedings of statements made at examination by absent witness
318B. Objection to admission of statements made at examination
319. Stay of proceedings
319A. Closed court
320. Effect of the confiscation scheme on sentencing
321. Deferral of sentencing pending determination of confiscation order
322. Appeals
323. Costs
324. Powers conferred on judicial officers in their personal capacity
325. Effect of a person's death
326. Operation of other laws not affected
327. Review of operation of Act
327A. Review
328. Regulations

CHAPTER 6--Interpreting this Act

PART 6-1--MEANING OF SOME IMPORTANT CONCEPTS

Division 1--Proceeds and instrument of an offence

329. Meaning of proceeds and instrument
330. When property becomes, remains and ceases to be proceeds or an instrument

Division 2--Convicted and related concepts

331. Meaning of convicted of an offence
332. Meaning of quashing a conviction of an offence
333. Meaning of conviction day
334. Meaning of abscond

Division 3--Other concepts

335. Proceeds jurisdiction
336. Meaning of derived
336A. Meaning of property or wealth being lawfully acquired
337. Meaning of effective control
337A. Meaning of foreign indictable offence
337B. Definition of serious offence --valuation rules

PART 6-2--DICTIONARY

338. Dictionary
SCHEDULE 1 Information gathering by participating States and self-governing Territories
SCHEDULE 2 Transitional, application and saving provisions relating to the national cooperative scheme on unexplained wealth

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