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Queensland
CRIMINAL PROCEEDS
CONFISCATION BILL 2002
Queensland
CRIMINAL PROCEEDS CONFISCATION
BILL 2002
TABLE OF PROVISIONS
Section Page
CHAPTER 1--INTRODUCTION
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2 Commencement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
4 Objects. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5 Act binds State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
6 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7 Examples in sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8 Proceeding other than for offence is not criminal proceeding . . . . . . . . . . . 22
9 Orders under this Act not a sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
10 Operation of other laws not affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
11 Interstate operation of particular orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
12 Proceedings by the State and meaning of "appropriate officer" . . . . . . . . . . 23
CHAPTER 2--CONFISCATION WITHOUT CONVICTION
PART 1--PRELIMINARY
13 Explanation of ch 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
14 Application of ch 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
PART 2--INTERPRETATION
Division 1--References to relevant offences
15 Meaning of "illegal activity" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
16 Meaning of "serious crime related activity" . . . . . . . . . . . . . . . . . . . . . . . . . 26
17 Meaning of "serious criminal offence" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
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Division 2--References to proceeds, property and benefits
18 Meaning of "proceeds" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
19 Meaning of "property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
20 Meaning of "effective control" of property . . . . . . . . . . . . . . . . . . . . . . . . . . 27
21 Meaning of "benefit" and "benefit derived" . . . . . . . . . . . . . . . . . . . . . . . . . 28
Division 3--References to illegally acquired property and serious crime
derived property
Subdivision 1--Meaning of particular property related terms
22 Meaning of "illegally acquired property" . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
23 Meaning of "serious crime derived property" . . . . . . . . . . . . . . . . . . . . . . . . 29
Subdivision 2--Provisions about continuing application of subdivision 1
to illegally acquired property and serious crime derived property
24 Definitions for subdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
25 Property retains its character despite disposal. . . . . . . . . . . . . . . . . . . . . . . . 30
26 When property stops being illegally acquired property or serious
crime derived property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
27 Property may again become illegally acquired property or serious
crime derived property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
PART 3--RESTRAINING ORDERS
Division 1--Application for restraining orders
28 Application for restraining order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
29 Affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Division 2--Making restraining orders
30 Who may be present at hearing of application made without notice . . . . . . 33
31 Making restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
32 Conditions of restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
33 Condition about dealing with property by agreement . . . . . . . . . . . . . . . . . . 35
34 Condition about particular payments out of restrained property. . . . . . . . . . 35
35 Restraining order may direct public trustee to take control of property . . . . 36
36 Duration of restraining order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Division 3--Making other orders
37 Supreme Court may make other orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
38 Particular orders Supreme Court may make . . . . . . . . . . . . . . . . . . . . . . . . . 38
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Division 4--Provisions about particular orders
Subdivision 1--Examination orders
39 Judicial registrar's power to conduct examinations. . . . . . . . . . . . . . . . . . . . 39
40 Privilege--examination order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
41 Offence to contravene examination order . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Subdivision 2--Property particulars orders
42 Privilege--property particulars order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Subdivision 3--Property seizure orders
43 If property seizure order directed to commission officer . . . . . . . . . . . . . . . 41
44 If property seizure order directed to police officer . . . . . . . . . . . . . . . . . . . . 42
Division 5--Notice of restraining order and other orders
45 Notice of restraining order and other orders . . . . . . . . . . . . . . . . . . . . . . . . . 43
Division 6--Sale of restrained property
46 Supreme Court may order sale of restrained property . . . . . . . . . . . . . . . . . 44
Division 7--Exclusion of property from restraining order
Subdivision 1--Application by prescribed respondent
47 Supreme Court may exclude prescribed respondent's property
from restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
48 When Supreme Court may exclude prescribed respondent's property . . . . . 46
Subdivision 2--Application by person other than prescribed respondent
49 Supreme Court may exclude other property from restraining order . . . . . . . 46
50 When Supreme Court may exclude applicant's property . . . . . . . . . . . . . . . 47
Division 8--Other provisions about restraining orders
51 Recording of restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
52 Contravention of restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
53 Restraining order does not prevent other action under this Act . . . . . . . . . . 48
54 Effect of dismissal of particular applications on restraining order . . . . . . . . 48
55 Authority under restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
PART 4--FORFEITURE ORDERS
Division 1--Making and effect of forfeiture orders
56 Application for forfeiture order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
57 Notice of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
58 Making forfeiture order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
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59 Effect of forfeiture order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
60 Dealing with forfeited property prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . 52
61 Effect of quashing of conviction on forfeiture order . . . . . . . . . . . . . . . . . . . 52
Division 2--Other orders
Subdivision 1--Orders for relief from hardship
62 Relief from hardship for dependants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Subdivision 2--Orders about encumbrances
63 Forfeiture order may provide for discharge of encumbrance . . . . . . . . . . . . 53
Subdivision 3--Releasing property from effect of forfeiture order
64 Order for release of property from forfeiture order. . . . . . . . . . . . . . . . . . . . 53
Subdivision 4--Exclusion of property from forfeiture under exclusion
order
65 Exclusion of property from forfeiture order application . . . . . . . . . . . . . . . . 54
66 Exclusion of property from forfeiture order . . . . . . . . . . . . . . . . . . . . . . . . . 55
67 When Supreme Court may give leave for s 66 . . . . . . . . . . . . . . . . . . . . . . . 56
68 Making of exclusion order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
69 What exclusion order must state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
70 Effect of exclusion order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Subdivision 5--Exclusion of interest from forfeiture under innocent
interest exclusion order
71 Exclusion of value of innocent interest from forfeiture order. . . . . . . . . . . . 57
72 When Supreme Court may give leave for s 71 . . . . . . . . . . . . . . . . . . . . . . . 58
73 Making of innocent interest exclusion order . . . . . . . . . . . . . . . . . . . . . . . . . 58
74 What innocent interest exclusion order must state . . . . . . . . . . . . . . . . . . . . 59
Division 3--Release and buying back interests
75 Effect of payment under release order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
76 Buying out other interests under court order. . . . . . . . . . . . . . . . . . . . . . . . . 59
PART 5--PROCEEDS ASSESSMENT ORDERS
Division 1--Application for, and making of, proceeds assessment orders
77 Application for proceeds assessment order . . . . . . . . . . . . . . . . . . . . . . . . . . 60
78 Making of proceeds assessment order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
79 Amount must be stated in proceeds assessment order . . . . . . . . . . . . . . . . . 61
80 Proceeds assessment order increase if forfeiture order discharged . . . . . . . . 61
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Division 2--Assessment of value of proceeds
81 Application of div 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
82 Matters to which Supreme Court must have regard . . . . . . . . . . . . . . . . . . . 62
83 How particular amounts may be treated . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
84 Particular amounts not to be deducted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
85 Evidence by prescribed officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Division 3--Other provisions about proceeds assessment orders
86 Proceeds assessment order amount is debt payable to State . . . . . . . . . . . . . 64
87 Enforcement of order against property under effective control. . . . . . . . . . . 65
88 Charge on property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
89 Effect of other actions on proceeds assessment order . . . . . . . . . . . . . . . . . . 66
PART 6--GENERAL
90 Serious crime related activity can form basis of a number of orders . . . . . . 67
91 Effect of death of person involved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
92 Effect of death of joint owner of restrained property . . . . . . . . . . . . . . . . . . 67
93 No stay of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
CHAPTER 3--CONFISCATION AFTER CONVICTION
PART 1--PRELIMINARY
94 Explanation of ch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
95 Application of ch 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
96 Matters ch 3 does not apply to. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
97 Application may be made for more than 1 order. . . . . . . . . . . . . . . . . . . . . . 69
98 Constitution of court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
PART 2--INTERPRETATION
Division 1--References to relevant offences
99 Meaning of "confiscation offence" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
100 Meaning of "serious criminal offence" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Division 2--References to property and benefits
101 Meaning of "benefit" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
102 Meaning of "benefit derived" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
103 Meaning of "effective control" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
104 Meaning of "tainted property" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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Division 3--References to relevant criminal proceedings
105 Meaning of "charge" if complaint made . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
106 Meaning of "convicted" of offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
107 Meaning of "quash" a conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
108 Meaning of "related" offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
109 Meaning of "unamenable to justice" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
110 "Unamenable to justice" if person absconds. . . . . . . . . . . . . . . . . . . . . . . . . 75
111 "Unamenable to justice" if person dead . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
112 "Unamenable to justice" if person not fit for trial . . . . . . . . . . . . . . . . . . . . . 76
113 "Unamenable to justice" if warrant issued but not executed. . . . . . . . . . . . . 76
114 "Unamenable to justice" if no extradition order at end of
extradition proceeding ....................................... 76
115 "Unamenable to justice" for another reason . . . . . . . . . . . . . . . . . . . . . . . . . 77
PART 3--RESTRAINING ORDERS
Division 1--Definitions
116 Definitions for pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Division 2--Application for restraining order
117 Application for restraining order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
118 Affidavit--general requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
119 Particular requirements for affidavit relating to relevant property
that is not prescribed respondent's property . . . . . . . . . . . . . . . . . . . . . . . . . 79
120 Notice of application for restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . 80
121 Who may be present at hearing of application made without notice . . . . . . 80
Division 3--Making restraining orders and other orders
122 Making restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
123 Absence of risk does not prevent making of order . . . . . . . . . . . . . . . . . . . . 82
124 Conditions of restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
125 Conditions about dealing with property by agreement . . . . . . . . . . . . . . . . . 82
126 Conditions about particular payments out of restrained property . . . . . . . . . 82
127 Restraining order may direct public trustee to take control of property . . . . 83
128 Duration of restraining order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Division 4--Making other orders
129 Supreme Court may make other orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
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130 Particular orders Supreme Court may make . . . . . . . . . . . . . . . . . . . . . . . . . 85
Division 5--Provisions about particular orders
Subdivision 1--Examination orders
131 Judicial registrar's power to conduct examinations. . . . . . . . . . . . . . . . . . . . 86
132 Privilege--examination order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
133 Offence to contravene examination order . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Subdivision 2--Property particulars orders
134 Privilege--property particulars order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Division 6--Notice of restraining orders
135 Notice of restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Division 7--Extension and setting aside of restraining orders
136 Extension of restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
137 Restraining order may be set side . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Division 8--Sale of restrained property
138 Supreme Court may order sale of restrained property . . . . . . . . . . . . . . . . . 90
Division 9--Exclusion of particular property from restraining order
139 Supreme Court may exclude prescribed respondent's property
from restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
140 Supreme Court may exclude other property from restraining order . . . . . . . 91
141 Supreme Court may declare restrained property is not subject to
automatic forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Division 10--Other provisions about restraining orders
142 Restraining order to be registered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
143 Contravention of restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
144 Restraining order does not prevent other action under this Act . . . . . . . . . . 94
145 Authority under restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
PART 4--FORFEITURE ORDERS
Division 1--Applications for forfeiture orders
146 Application for forfeiture order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
147 Notice of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Division 2--Making and effect of forfeiture orders
148 Amendment of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
149 Procedure on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
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150 Limitation on powers of Magistrates Courts . . . . . . . . . . . . . . . . . . . . . . . . . 97
151 Making forfeiture order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
152 Forfeiture order may provide for discharge of encumbrance . . . . . . . . . . . . 98
153 Effect of forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Division 3--Orders releasing or excluding property from effect of
particular orders
154 Order for release of property from forfeiture order. . . . . . . . . . . . . . . . . . . . 99
155 Exclusion of property from forfeiture order application . . . . . . . . . . . . . . . . 100
156 Exclusion of property from forfeiture order . . . . . . . . . . . . . . . . . . . . . . . . . 100
157 When court may give leave for s 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
158 Making of innocent interest exclusion order . . . . . . . . . . . . . . . . . . . . . . . . . 101
159 What innocent interest exclusion order must state . . . . . . . . . . . . . . . . . . . . 101
Division 4--Discharge of forfeiture orders
160 Discharge of forfeiture order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
PART 5--AUTOMATIC FORFEITURE
161 Definitions for pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
162 Application of pt 5 ....................................... 103
163 Automatic forfeiture of restrained property . . . . . . . . . . . . . . . . . . . . . . . . . 103
164 Effect of automatic forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
165 Third party protection from automatic forfeiture . . . . . . . . . . . . . . . . . . . . . 104
166 When Supreme Court may give leave for s 165 . . . . . . . . . . . . . . . . . . . . . . 105
167 When Supreme Court may make third party order . . . . . . . . . . . . . . . . . . . . 105
168 What third party order must state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
169 When Supreme Court may make buy-back order . . . . . . . . . . . . . . . . . . . . . 106
170 What buy-back order must state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
PART 6--OTHER PROVISIONS ABOUT FORFEITURE
171 Dealing with forfeited property prohibited . . . . . . . . . . . . . . . . . . . . . . . . . . 107
172 Effect of payment under buy-back order or release order . . . . . . . . . . . . . . . 107
173 Buying out other interests under court order. . . . . . . . . . . . . . . . . . . . . . . . . 108
174 Notice after conviction quashed or forfeiture order discharged . . . . . . . . . . 108
175 If Attorney-General asked to return property . . . . . . . . . . . . . . . . . . . . . . . . 109
176 If application for order declaring value of property . . . . . . . . . . . . . . . . . . . 110
177 Rehearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
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PART 7--PECUNIARY PENALTY ORDERS
Division 1--Application for pecuniary penalty order
178 Pecuniary penalty order application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
179 Notice of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
180 Right to appear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
181 Amendment of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
182 Procedure on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
183 Limitation on powers of Magistrates Courts . . . . . . . . . . . . . . . . . . . . . . . . . 113
Division 2--Making of pecuniary penalty order
184 Pecuniary penalty orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
185 Discharge of pecuniary penalty order to the extent of automatic forfeiture . 114
186 Pecuniary penalty order increase if forfeiture order discharged . . . . . . . . . . 114
Division 3--Assessment of benefits
187 Assessment of benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
188 Procedure if application relating to 1 confiscation offence . . . . . . . . . . . . . . 116
189 Procedure if application relating to more than 1 confiscation offence . . . . . 117
190 Property that may be taken into account for assessment. . . . . . . . . . . . . . . . 117
191 Property under effective control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
192 Particular benefits not to be taken into account. . . . . . . . . . . . . . . . . . . . . . . 118
193 Expenses and outgoings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
194 Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Division 4--Other provisions
195 Discharge of pecuniary penalty order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
196 Charge on restrained property under restraining order if pecuniary
penalty order made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
197 Pecuniary penalty order to be registered . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
198 Application of property under effective control for satisfying
pecuniary penalty order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
199 Rehearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
CHAPTER 4--SPECIAL FORFEITURE ORDERS
PART 1--SPECIAL FORFEITURE ORDER APPLICATION
200 Application for special forfeiture order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
201 Notice of application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
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202 Making of special forfeiture order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
PART 2--ASSESSMENT OF BENEFITS
203 Assessment of benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
204 How particular amounts may be treated . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
205 Property that may be taken into account for assessment. . . . . . . . . . . . . . . . 124
206 Property under effective control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
207 Expenses and outgoings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
PART 3--OTHER PROVISIONS
208 Application of property under effective control for satisfying
special forfeiture order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
209 Effect of special forfeiture order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
210 Application of amounts paid to the State under this chapter. . . . . . . . . . . . . 126
211 Special forfeiture order to be registered . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
CHAPTER 5--PARTICULAR PROVISIONS ABOUT
FORFEITURE OF PROPERTY
212 Chapter does not apply to particular property . . . . . . . . . . . . . . . . . . . . . . . . 127
213 Forfeited property not to be disposed of during appeal period . . . . . . . . . . . 128
214 Disposal of forfeited property by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
215 Procedural matters about forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
216 Filing of forfeiture certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
CHAPTER 6--PROVISIONS ABOUT PARTICULAR
GOVERNMENT ENTITIES
PART 1--POWERS OF PUBLIC TRUSTEE
Division 1--Provisions for satisfying particular orders
217 Definition for div 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
218 Application of div 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
219 Public trustee may apply for order for satisfying liability because
of confiscation order or automatic forfeiture. . . . . . . . . . . . . . . . . . . . . . . . . 131
220 Application of proceeds to satisfy order . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
221 Effect of payment under s 220. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
Division 2--Other provisions
222 If public trustee directed to take control of restrained property . . . . . . . . . . 132
223 Public trustee's fees and charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132
224 Public trustee's liability for rates etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
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225 Agents for public trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
226 Obstruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
PART 2--LEGAL AID
227 Legal Aid Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
228 Matters not to be taken into account in deciding application for
legal assistance ........................................... 134
229 Legal Aid may require charge over property. . . . . . . . . . . . . . . . . . . . . . . . . 134
230 Effect of forfeiture on charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
CHAPTER 7--INTERSTATE ORDERS AND WARRANTS
PART 1--INTERPRETATION
231 Definitions for ch 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
PART 2--PROVISIONS ABOUT FILING INTERSTATE ORDERS
232 Filing of interstate orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
233 Interim filing of facsimile copies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
234 Effect of filing interstate forfeiture order . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
235 Effect of filing interstate restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . 138
236 Cancellation of filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
237 Charge on property subject to filed interstate restraining order . . . . . . . . . . 139
PART 3--PROVISIONS ABOUT PROPERTY SEIZED UNDER
INTERSTATE ORDERS AND SEARCH WARRANTS
238 Division does not affect particular provisions . . . . . . . . . . . . . . . . . . . . . . . . 140
239 Interstate order about return of seized property . . . . . . . . . . . . . . . . . . . . . . 140
240 Order about property seized in another State for which court
refuses to make forfeiture order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
241 Application by person for return of property seized in another State . . . . . . 141
PART 4--OTHER PROVISIONS
242 Public trustee may act as agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
CHAPTER 8--OBLIGATIONS OF FINANCIAL INSTITUTIONS
PART 1--INTERPRETATION
243 Meaning of "customer-generated financial transaction document" . . . . . . . 142
244 Meaning of "essential customer-generated financial transaction document" 143
245 Meaning of "financial transaction document". . . . . . . . . . . . . . . . . . . . . . . . 143
246 Meaning of "minimum retention period" . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
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PART 2--PROVISIONS APPLYING TO FINANCIAL
INSTITUTIONS
247 Retention of records by financial institutions . . . . . . . . . . . . . . . . . . . . . . . . 144
248 Register of original documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
249 Communication of information by financial institutions to particular officers 145
CHAPTER 9--OFFENCES
250 Money laundering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
251 Charging of money laundering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
252 Possession etc. of property suspected of being tainted property. . . . . . . . . . 147
253 Responsibility for acts or omissions of representatives . . . . . . . . . . . . . . . . 147
CHAPTER 10--MISCELLANEOUS PROVISIONS
PART 1--ARRANGEMENTS TO DEFEAT OPERATION OF ACT
254 Definitions for part 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
255 Arrangements to defeat operation of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
256 Orders for defeating arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
PART 2--OTHER PROVISIONS
257 Restriction on functions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
258 Publication of proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
259 Requirements to give notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
260 Sentencing court not to have regard to property forfeiture or
pecuniary penalty ......................................... 151
261 Costs incurred on variation of forfeiture or restraining orders on
application by third parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
262 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
263 Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
264 Registration fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
CHAPTER 11--GENERAL
265 Evidentiary provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
266 Review of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
267 Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
CHAPTER 12--TRANSITIONAL PROVISIONS, REPEAL AND
AMENDMENTS
PART 1--TRANSITIONAL PROVISIONS
268 Definitions for ch 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
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269 Incomplete proceedings for old orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
270 Incomplete rehearing proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
271 Interstate orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
272 Automatic forfeiture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
273 Old forfeiture orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
274 Old pecuniary penalty orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
275 Old restraining orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
276 Particular orders about buying back interests in property . . . . . . . . . . . . . . . 159
277 Property under the control of the public trustee . . . . . . . . . . . . . . . . . . . . . . 159
278 Persons unamenable to justice under old Act . . . . . . . . . . . . . . . . . . . . . . . . 159
279 Application for chapter 2 restraining order if property restrained
under old restraining order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
280 Other directions, orders and requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 160
281 References to Crimes (Confiscation) Act 1989 . . . . . . . . . . . . . . . . . . . . . . . 160
PART 2--REPEAL
282 Repeal of Crimes (Confiscation) Act 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . 160
PART 3--AMENDMENT OF CRIME AND MISCONDUCT ACT
2001
283 Act amended in pt 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
284 Amendment of s 4 (Act's purposes) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
285 Amendment of s 5 (How Act's purposes are to be achieved) . . . . . . . . . . . . 161
286 Amendment of s 56 (Commission's other functions) . . . . . . . . . . . . . . . . . . 161
287 Amendment of s 74 (Notice to produce) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
288 Insertion of new ch 3, pt 1, div 2, subdiv 1A. . . . . . . . . . . . . . . . . . . . . . . . . 162
Subdivision 1A--Confiscation related investigations
289 Insertion of new ch 3, pt 1, div 3, subdiv 1A. . . . . . . . . . . . . . . . . . . . . . . . . 163
Subdivision 1A--Confiscation related investigations
78A Application of subdiv 1A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
78B Commission officer to consider claim of privilege . . . . . . . . . . . . . . 163
78C Procedure for documents subject to claim of privilege . . . . . . . . . . . 163
290 Amendment of s 86 (Search warrant applications) . . . . . . . . . . . . . . . . . . . . 164
291 Amendment of s 87 (Issue of search warrant). . . . . . . . . . . . . . . . . . . . . . . . 165
292 Amendment of s 90 (When search warrant ends) . . . . . . . . . . . . . . . . . . . . . 165
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293 Amendment of s 91 (What search warrant must state) . . . . . . . . . . . . . . . . . 165
294 Amendment of s 92 (Powers under search warrants) . . . . . . . . . . . . . . . . . . 166
295 Insertion of new s 110A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
110A General power to seize evidence--confiscation related investigation 166
296 Insertion of new ch 3, pt 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
PART 5A--MONITORING AND SUSPENSION ORDERS
Division 1--Interpretation and application
119A Meaning of "financial institution" . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
119B Application of part 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Division 2--Monitoring orders
119C Monitoring order applications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
119D Making of monitoring order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
119E What monitoring order must state . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
119F When period stated in monitoring order starts. . . . . . . . . . . . . . . . . . 170
119G Offence to contravene monitoring order . . . . . . . . . . . . . . . . . . . . . . 170
119H Existence and operation of monitoring order not to be disclosed . . . 170
Division 3--Suspension orders
119I Suspension order application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
119J Making of suspension order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
119K What suspension order must state . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
119L When period stated in suspension order starts. . . . . . . . . . . . . . . . . . 173
119M Contravention of suspension order . . . . . . . . . . . . . . . . . . . . . . . . . . 173
119N Existence and operation of suspension order not to be disclosed . . . 174
297 Amendment of s 166 (Register of warrants, warrant applications etc.) . . . . 175
298 Amendment of s 176 (Commission may hold hearings). . . . . . . . . . . . . . . . 175
299 Insertion of new ch 4, pt 2, div 4, subdiv 1A. . . . . . . . . . . . . . . . . . . . . . . . . 175
Subdivision 1A--Confiscation related investigations
195A Application of subdiv 1A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
195B Supreme Court to decide claim of privilege . . . . . . . . . . . . . . . . . . . 176
300 Amendment of sch 2 (Dictionary). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
PART 4--AMENDMENT OF DIRECTOR OF PUBLIC
PROSECUTIONS ACT 1984
301 Act amended in pt 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
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302 Insertion of new s 10A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
10A Guidelines by Attorney-General . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
PART 5--AMENDMENT OF FINANCIAL TRANSACTION
REPORTS ACT 1992
303 Act amended in pt 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
304 Amendment of s 6 (Further reports of suspect transactions). . . . . . . . . . . . . 180
305 Amendment of s 7 (Reports of suspect transactions not reported under
Commonwealth Act) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
306 Section 8 (Protection of cash dealers etc.) . . . . . . . . . . . . . . . . . . . . . . . . . . 180
PART 6--AMENDMENT OF POLICE POWERS AND
RESPONSIBILITIES ACT 2000
307 Act amended in pt 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181
308 Amendment of s 68 (Search warrant application). . . . . . . . . . . . . . . . . . . . . 181
309 Amendment of s 69 (Issue of search warrant). . . . . . . . . . . . . . . . . . . . . . . . 181
310 Amendment of s 72 (When search warrant ends) . . . . . . . . . . . . . . . . . . . . . 182
311 Amendment of s 73 (What search warrant must state) . . . . . . . . . . . . . . . . . 182
312 Amendment of s 74 (Power under search warrants) . . . . . . . . . . . . . . . . . . . 182
313 Amendment of s 76 (Application of pt 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
314 Amendment of s 97 (Production notices) . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
315 Amendment of s 98 (Issue of production notice) . . . . . . . . . . . . . . . . . . . . . 183
316 Amendment of s 101 (Power under production notice) . . . . . . . . . . . . . . . . 184
317 Amendment of s 105 (Application of pt 5) . . . . . . . . . . . . . . . . . . . . . . . . . . 184
318 Amendment of s 106 (Production order applications) . . . . . . . . . . . . . . . . . 184
319 Amendment of s 107 (Making of production orders) . . . . . . . . . . . . . . . . . . 184
320 Amendment of s 109 (Powers under production order) . . . . . . . . . . . . . . . . 185
321 Replacement of ch 4, pt 1, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
322 Insertion of new ch 4, pt 1, div 2, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
323 Amendment of s 117 (Making of monitoring order). . . . . . . . . . . . . . . . . . . 186
324 Amendment of s 121 (Existence and operation of monitoring order
not to be disclosed) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
325 Insertion of new ch 4, pt 1, div 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
Division 3--Suspension orders
121A Suspension order application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
121B Making of suspension order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
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121C What suspension order must state . . . . . . . . . . . . . . . . . . . . . . . . . . . 188
121D When period stated in suspension order starts. . . . . . . . . . . . . . . . . . 189
121E Contravention of suspension order . . . . . . . . . . . . . . . . . . . . . . . . . . 189
121F Existence and operation of suspension order not to be disclosed . . . 189
326 Amendment of s 420 (Application of pt 3) . . . . . . . . . . . . . . . . . . . . . . . . . . 191
327 Amendment of schedule 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
PART 7--OTHER ACTS AMENDED
328 Other Acts amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
SCHEDULE 1 . . . . . . . . . . . . . . . . . . . . . . . . 194
EXAMPLES
PART 1--ILLEGALLY ACQUIRED PROPERTY EXAMPLES
1 Example 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
2 Example 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
PART 2--PROCEEDS ASSESSMENT EXAMPLE
3 Example 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
PART 3--TAINTED PROPERTY EXAMPLES
4 Example 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
5 Example 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
6 Example 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
7 Example 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
8 Example 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
9 Example 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
PART 4--ASSESSMENT OF BENEFITS EXAMPLES
10 Example 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
11 Example 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
12 Example 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
13 Example 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
14 Example 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
15 Example 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
SCHEDULE 2 . . . . . . . . . . . . . . . . . . . . . . . . 203
OFFENCES
SCHEDULE 3 . . . . . . . . . . . . . . . . . . . . . . . . 205
17
Criminal Proceeds Confiscation Bill 2002
MINOR AMENDMENTS OF CRIME AND MISCONDUCT ACT
2001
SCHEDULE 4 . . . . . . . . . . . . . . . . . . . . . . . . 215
OTHER ACTS AMENDED
BILLS OF SALE AND OTHER INSTRUMENTS ACT 1955. . . . . . . . . . . 215
DRUGS MISUSE ACT 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
DUTIES ACT 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 216
FORESTRY ACT 1959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
GOVERNMENT OWNED CORPORATIONS ACT 1993. . . . . . . . . . . . . . 217
LIENS ON CROPS OF SUGAR CANE ACT 1931 . . . . . . . . . . . . . . . . . . . 217
LOCAL GOVERNMENT ACT 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
MOTOR VEHICLES SECURITIES ACT 1986 . . . . . . . . . . . . . . . . . . . . . . 218
PROPERTY AGENTS AND MOTOR DEALERS ACT 2000 . . . . . . . . . . . 219
PROSTITUTION ACT 1999. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
WATER ACT 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
WITNESS PROTECTION ACT 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
WORKCOVER QUEENSLAND ACT 1996 . . . . . . . . . . . . . . . . . . . . . . . . 220
SCHEDULE 5 . . . . . . . . . . . . . . . . . . . . . . . . 221
DICTIONARY
2002
A BILL
FOR
An Act to provide for the confiscation of the proceeds of crime, and for
other purposes
s1 20 s4
Criminal Proceeds Confiscation Bill 2002
The Parliament of Queensland enacts-- 1
CHAPTER 1--INTRODUCTION 2
1 Short title 3
This Act may be cited as the Criminal Proceeds Confiscation Act 2002. 4
2 Commencement 5
(1) This Act, other than schedule 3, items 49 and 50, commences on 6
1 January 2003. 7
(2) Schedule 3, items 49 and 50 are taken to have commenced on 8
1 January 2002. 9
3 Definitions 10
The dictionary in schedule 5 defines particular terms used in this Act. 11
4 Objects 12
(1) The main object of this Act is to remove the financial gain and 13
increase the financial loss associated with illegal activity, whether or not a 14
particular person is convicted of an offence because of the activity. 15
(2) It is also an important object of this Act-- 16
(a) to ensure that property rights are affected by orders under this 17
Act, including orders limiting a person's ability to deal with the 18
property, only through procedures ensuring persons who may be 19
affected by the orders are given a reasonable opportunity to 20
establish the lawfulness of the activity through which they 21
acquired the relevant property rights; and 22
(b) to protect property honestly acquired by persons innocent of 23
illegal activity from forfeiture and other orders affecting 24
property; and 25
s5 21 s7
Criminal Proceeds Confiscation Bill 2002
(c) to ensure that orders of other States restraining or forfeiting 1
property under corresponding laws may be enforced in 2
Queensland. 3
(3) This Act provides for 2 separate schemes to achieve its objects. 4
(4) One of the schemes relies on a person being charged and convicted 5
(as defined in this Act) and is administered by the DPP. 6
(5) The other scheme does not depend on a charge or conviction and is 7
administered by the Crime and Misconduct Commission. 8
(6) Despite the similarities between the schemes, each is separate and 9
neither scheme is to be construed as limiting the other, unless this Act 10
otherwise expressly provides. 11
5 Act binds State 12
(1) This Act binds all persons, including the State and, as far as the 13
legislative power of Parliament permits, the Commonwealth and the other 14
States. 15
(2) Nothing in this Act makes the State, the Commonwealth or the other 16
States liable to be prosecuted for an offence. 17
6 Notes 18
A note in the text of this Act is part of this Act. 19
7 Examples in sch 1 20
(1) An example in schedule 1, part 1 is an example of the practical 21
operation of the application of the definition "illegally acquired property". 22
23
Note--
24
For the definition, see section 22.
25
The examples apply in the same way to the practical operation of the definition
26
"serious crime derived property".
(2) An example in schedule 1, part 2 is an example of the practical 27
operation of chapter 2, part 5.1 28
1 Chapter 2 (Confiscation without conviction), part 5 (Proceeds assessment orders)
s8 22 s 10
Criminal Proceeds Confiscation Bill 2002
(3) An example in schedule 1, part 3 is an example of the practical 1
operation of the application of the definition "tainted property". 2
3
Note--
4
For the definition, see section 104.
(4) An example in schedule 1, part 4 is an example of the practical 5
operation of chapter 3, part 7, division 3.2 6
8 Proceeding other than for offence is not criminal proceeding 7
(1) This section applies to a proceeding under this Act other than a 8
prosecution for an offence against this Act. 9
(2) The proceeding is not a criminal proceeding. 10
(3) Questions of fact in the proceeding must be decided on the balance of 11
probabilities. 12
(4) The rules of evidence applying in civil proceedings apply to the 13
proceeding. 14
(5) The rules of construction applying only to the criminal law do not 15
apply in the interpretation of this Act for the proceeding. 16
9 Orders under this Act not a sentence 17
An order under this Act requiring the payment of an amount or imposing 18
a penalty, other than for a conviction for an offence against this Act, or 19
restraining or forfeiting property, is not a punishment or sentence for any 20
offence. 21
10 Operation of other laws not affected 22
Nothing in this Act limits or restricts the operation of any other law 23
providing for the forfeiture of property. 24
2 Chapter 3 (Confiscation after conviction), part 7 (Pecuniary penalty orders),
division 3 (Assessment of benefits)
s 11 23 s 12
Criminal Proceeds Confiscation Bill 2002
11 Interstate operation of particular orders 1
(1) For the purpose of enabling a forfeiture order or a restraining order to 2
be registered under the corresponding law of another State, the order may 3
be expressed to apply to property in that State. 4
(2) A forfeiture order or restraining order does not apply to property in 5
another State, unless-- 6
(a) a corresponding law of the other State provides that the order has 7
effect in the State after registration under that law; or 8
(b) the property was movable property and was located in 9
Queensland or another State with a corresponding law when the 10
order took effect. 11
12 Proceedings by the State and meaning of "appropriate officer" 12
(1) If the State may start a proceeding under this Act, the proceeding 13
may be started for the State as follows-- 14
(a) for chapter 2-- 15
(i) by the commission; or 16
(ii) with the approval of the commission, by a police officer; or 17
(b) for chapter 3 or 4, by an appropriate officer; or 18
(c) for chapter 10, part 1, by an appropriate officer. 19
(2) A proceeding taken by or for the State must be taken under the title 20
"State of Queensland". 21
(3) The DPP is the solicitor on the record for the proceeding. 22
(4) Without limiting subsection (2), any document of the State necessary 23
for the proceeding under a provision of this Act may be signed by a person 24
who is an appropriate officer for that provision. 25
(5) For this Act, "appropriate officer"-- 26
(a) for subsection (1)(c), chapter 2 or chapter 10,3 means-- 27
(i) the chairperson; or 28
(ii) an authorised commission officer; or 29
3 Chapter 2 (Conviction without conviction) or 10 (Miscellaneous provisions)
s 13 24 s 13
Criminal Proceeds Confiscation Bill 2002
(iii) the DPP, a deputy DPP, or a lawyer appointed to assist the 1
DPP in the performance of the DPP's functions; or 2
(b) for subsection (1)(b), chapter 3 or chapter 44-- 3
(i) means a person mentioned in paragraph (a)(iii); or 4
(ii) for the purposes of an application to a Magistrates Court for 5
a forfeiture order or pecuniary penalty order and related 6
matters--includes the commissioner of the police service or 7
another police officer. 8
CHAPTER 2--CONFISCATION WITHOUT 9
CONVICTION 10
PART 1--PRELIMINARY 11
13 Explanation of ch 2 12
(1) This chapter enables proceedings to be started to confiscate property 13
derived from illegal activity whether or not a person who engaged in the 14
relevant activity has been convicted of any offence. 15
(2) Also, this chapter enables proceedings to be taken to confiscate 16
property derived from a serious crime related activity even though the 17
person who engaged in the relevant activity has not been identified. 18
(3) The chapter enables the Supreme Court, as a preliminary step, to 19
make a restraining order preventing property, whether the property of the 20
person who engaged in the relevant illegal activity or the serious crime 21
derived property of someone else, being dealt with without the court's 22
leave. 23
(4) The court must make a forfeiture order confiscating the property 24
(unless it is not in the public interest to make the order) if it finds it is more 25
probable than not that-- 26
4 Chapter 3 (Confiscation after conviction) or 4 (Special forfeiture orders)
s 14 25 s 15
Criminal Proceeds Confiscation Bill 2002
(a) the person whose suspected serious crime related activity was the 1
basis of the relevant restraining order engaged in a serious crime 2
related activity; or 3
(b) the property is serious crime derived property because of a 4
serious crime related activity of a person, even though a 5
particular person suspected of having engaged in the serious 6
crime related activity can not be identified. 7
(5) The court may also make a proceeds assessment order against a 8
person who has engaged in a serious crime related activity, requiring the 9
person to pay to the State the amount the court decides is the value of 10
proceeds derived from the person's illegal activity over a period of up to 11
6 years before the application for the order is made. 12
(6) The amount payable under the proceeds assessment order may be 13
recovered as a debt payable to the State. 14
(7) The chapter contains other ancillary provisions including provisions 15
giving persons opportunities to have lawfully acquired property excluded 16
from the effect of restraining orders and forfeiture orders. 17
14 Application of ch 2 18
Subject to the limitation period imposed under section 58, this chapter 19
applies in relation to illegal activity or serious crime related activity 20
whether happening before or after the commencement of this section. 21
PART 2--INTERPRETATION 22
Division 1--References to relevant offences 23
15 Meaning of "illegal activity" 24
An "illegal activity" is an activity that is-- 25
(a) a serious crime related activity; or 26
(b) an act or omission that is an offence against the law of 27
Queensland or the Commonwealth; or 28
(c) an act or omission committed outside Queensland that-- 29
s 16 26 s 17
Criminal Proceeds Confiscation Bill 2002
(i) is an offence against the law of the place in which it is 1
committed; and 2
(ii) would be an offence mentioned in paragraph (b) if it were 3
committed in Queensland. 4
5
Note--
6
This definition applies to the whole Act. See the dictionary.
16 Meaning of "serious crime related activity" 7
(1) Anything done by a person that was, when it was done, a serious 8
criminal offence, is a "serious crime related activity". 9
(2) Subsection (1) applies whether or not the person has been charged 10
with the offence or, if charged-- 11
(a) has been tried; or 12
(b) has been tried and acquitted; or 13
(c) has been convicted, even if the conviction has been quashed or 14
set aside. 15
17 Meaning of "serious criminal offence" 16
(1) An offence is a "serious criminal offence" if it is any of the 17
following-- 18
(a) an indictable offence for which the maximum penalty is at least 19
5 years imprisonment; 20
(b) an offence prescribed under a regulation for this definition; 21
(c) an ancillary offence to an offence mentioned in paragraph (a) 22
or (b). 23
(2) In this section-- 24
"indictable offence" includes an indictable offence dealt with summarily. 25
s 18 27 s 20
Criminal Proceeds Confiscation Bill 2002
Division 2--References to proceeds, property and benefits 1
18 Meaning of "proceeds" 2
"Proceeds", in relation to an activity, includes property and another 3
benefit derived because of the activity-- 4
(a) by the person who engaged in the activity; or 5
(b) by another person at the direction or request, directly or 6
indirectly, of the person who engaged in the activity. 7
19 Meaning of "property" 8
"Property" of a person-- 9
(a) includes-- 10
(i) an interest the person has in a licence a person must hold to 11
carry on a particular business; and 12
(ii) an interest the person has in the goodwill of a business; and 13
(b) does not include property of the person that is under the effective 14
control of someone else. 15
16
Note--
17
This provision is in addition to the definition of property given by the Acts
18
Interpretation Act 1954, section 36.
20 Meaning of "effective control" of property 19
(1) Property may be under a person's "effective control" even if-- 20
(a) the person does not have a direct or indirect right, power or 21
privilege over, or in relation to, the property; or 22
(b) the person does not otherwise have an interest in the property. 23
(2) Regard may be had to all relevant matters in deciding-- 24
(a) whether or not property is under a person's effective control; or 25
(b) whether or not there are reasonable grounds to suspect that 26
property is under a person's effective control. 27
(3) Matters to which regard may be had include, for example-- 28
s 21 28 s 21
Criminal Proceeds Confiscation Bill 2002
(a) shareholdings in, debentures over, or directorships of, a 1
corporation that has a direct or indirect interest in the property; 2
and 3
(b) a trust that has a relationship to the property; and 4
(c) family, domestic, business and other relationships between any 5
of the following and other persons-- 6
(i) persons having an interest in the property; 7
(ii) corporations that have a direct or indirect interest in the 8
property; 9
(iii) trusts that have a relationship to the property. 10
(4) However, property is under the effective control of a person (the 11
"first person") if the property-- 12
(a) is held by another person for the ultimate benefit of the first 13
person; or 14
(b) was a gift given by the first person to another person within 15
6 years before the making of an application for a restraining 16
order, whether or not the gift is still in the other person's 17
possession. 18
19
Note--
20
This definition applies to the whole Act. See the dictionary.
21 Meaning of "benefit" and "benefit derived" 21
(1) "Benefit" includes service and advantage. 22
(2) A "benefit derived" by a person includes a benefit derived by 23
someone else at the person's request or direction. 24
s 22 29 s 23
Criminal Proceeds Confiscation Bill 2002
Division 3--References to illegally acquired property and serious crime 1
derived property 2
Subdivision 1--Meaning of particular property related terms 3
22 Meaning of "illegally acquired property" 4
(1) Property is "illegally acquired property" if it is all or part of the 5
proceeds of an illegal activity. 6
(2) Property is also "illegally acquired property" if-- 7
(a) it is all or part of the proceeds of dealing with illegally acquired 8
property; or 9
(b) all or part of it was acquired using illegally acquired property. 10
(3) For subsection (2), it does not matter whether the property dealt with 11
or used in the acquisition became illegally acquired property because of 12
subsection (1) or subsection (2). 13
(4) Subsections (1) and (2) apply whether or not the activity, dealing or 14
acquisition because of which the property became illegally acquired 15
property happened before the commencement of this section. 16
(5) Also, if the proceeds of dealing with illegally acquired property are 17
credited to or placed in an account, the proceeds do not lose their identity 18
as proceeds because they are credited to or placed in an account. 19
20
Note--
21
Generally, illegally acquired property is used in this chapter, but some provisions, for
22
example, section 28(3)(c), use the narrower expression "serious crime derived
23
property".5
24
This definition applies to the whole Act. See the dictionary.
23 Meaning of "serious crime derived property" 25
(1) Property is "serious crime derived property" if it is all or part of 26
the proceeds of a serious crime related activity. 27
(2) Property is also "serious crime derived property" if-- 28
5 Section 28 (Application for restraining order)
s 24 30 s 25
Criminal Proceeds Confiscation Bill 2002
(a) it is all or part of the proceeds of dealing with serious crime 1
derived property; or 2
(b) all or part of it was acquired using serious crime derived 3
property. 4
(3) For subsection (2), it does not matter whether the property dealt with 5
or used in the acquisition became serious crime derived property because 6
of subsection (1) or subsection (2). 7
(4) Subsections (1) and (2) apply whether or not the activity, dealing or 8
acquisition because of which the property became serious crime derived 9
property happened before the commencement of this section. 10
(5) Also, if the proceeds of dealing with serious crime derived property 11
are credited to or placed in an account, the proceeds do not lose their 12
identity as proceeds because they are credited to or placed in an account. 13
Subdivision 2--Provisions about continuing application of subdivision 1 14
to illegally acquired property and serious crime derived property 15
24 Definitions for subdiv 2 16
In this subdivision-- 17
"character" of property means its character as either illegally acquired 18
property or serious crime derived property. 19
"property" means property that is either of the following because of 20
subdivision 1-- 21
(a) illegally acquired property; 22
(b) serious crime derived property. 23
25 Property retains its character despite disposal 24
Illegally acquired property or serious crime derived property retains its 25
character--even if it is disposed of, including by using it to acquire other 26
property--until it stops being property of that character under section 26. 27
s 26 31 s 27
Criminal Proceeds Confiscation Bill 2002
26 When property stops being illegally acquired property or serious 1
crime derived property 2
Property stops being illegally acquired property or serious crime derived 3
property-- 4
(a) when it is acquired by a person for sufficient consideration, 5
without knowing, and in circumstances not likely to arouse a 6
reasonable suspicion, that the property was illegally acquired 7
property or serious crime derived property; or 8
(b) when it vests in a person on the distribution of the estate of a 9
deceased; or 10
(c) when it is disposed of under this Act, including when discharging 11
a pecuniary penalty order or a proceeds assessment order; or 12
(d) when it is the proceeds of the disposal of property under this Act 13
other than by sale under a condition of a restraining order or by 14
order of the Supreme Court under section 46 or 138;6 or 15
(e) when it is acquired by Legal Aid as payment of reasonable legal 16
expenses payable because of an application under this Act or in 17
defending a charge of an offence; or 18
(f) in circumstances prescribed under a regulation. 19
27 Property may again become illegally acquired property or serious 20
crime derived property 21
If property that was, but is no longer, illegally acquired property or 22
serious crime derived property is again acquired by the person who owned 23
it when it had that character, the property again becomes property of that 24
character unless it is acquired by the person under an order under this Act. 25
26
Note--
27
For an example of the practical operation of this provision, see schedule 1, part 1,
28
example 2.
6 Sections 46 (Supreme Court may order sale of restrained property) and 138
(Supreme Court may order sale of restrained property)
s 28 32 s 28
Criminal Proceeds Confiscation Bill 2002
PART 3--RESTRAINING ORDERS 1
Division 1--Application for restraining orders 2
28 Application for restraining order 3
(1) The State may apply to the Supreme Court for an order ("restraining 4
order") restraining any person from dealing with property stated in the 5
order (the "restrained property") other than in a stated way or in stated 6
circumstances. 7
(2) The application-- 8
(a) must be supported by an affidavit of an authorised commission 9
officer or a police officer; and 10
(b) may be made without notice to any person to whom it relates. 11
(3) The application may relate to all or any of the following property-- 12
(a) for property of a person suspected of having engaged in 1 or 13
more serious crime related activities (a "prescribed 14
respondent")-- 15
(i) stated property; or 16
(ii) a stated class of property; or 17
(iii) all property; or 18
(iv) all property other than stated property; or 19
(v) all or stated property acquired after the restraining order is 20
made; 21
(b) stated property, or a stated class of property, of a stated person, 22
other than a prescribed respondent; 23
(c) stated property suspected of being serious crime derived property 24
because of a serious crime related activity of a person, even 25
though a particular person suspected of having engaged in the 26
serious crime related activity can not be identified. 27
(4) The court may refuse to consider the application until the State gives 28
the court all the information the court requires about the application in the 29
way the court requires. 30
s 29 33 s 30
Criminal Proceeds Confiscation Bill 2002
1
Example--
2
The court may require additional information supporting the application to be given by
3
affidavit or statutory declaration.
29 Affidavit 4
The affidavit of the authorised commission officer or police officer must 5
state-- 6
(a) for property mentioned in section 28(3)(a) if the serious crime 7
related activity involves an offence stated in schedule 2, 8
part 1--the officer suspects the prescribed respondent-- 9
(i) has engaged in 1 or more serious crime related activities; 10
and 11
(ii) the reason for the suspicion; or 12
(b) for property mentioned in section 28(3)(a) if paragraph (a) does 13
not apply--the officer suspects the prescribed respondent-- 14
(i) has engaged in 1 or more serious crime related activities; 15
and 16
(ii) has derived proceeds from engaging in 1 or more of these 17
serious crime related activities; and 18
(iii) the reason for the suspicion; or 19
(c) for property mentioned in section 28(3)(b)--the officer suspects 20
the property is serious crime derived property because of a 21
serious crime related activity of a prescribed respondent and the 22
reason for the suspicion; or 23
(d) for property mentioned in section 28(3)(c)--the officer suspects 24
the property is serious crime derived property and the reason for 25
the suspicion. 26
Division 2--Making restraining orders 27
30 Who may be present at hearing of application made without 28
notice 29
(1) This section applies if the State applies for a restraining order 30
without notice to any person to whom it relates. 31
s 31 34 s 31
Criminal Proceeds Confiscation Bill 2002
(2) The Supreme Court must hear the application in the absence of 1
anyone other than-- 2
(a) an appropriate officer; or 3
(b) a commission officer; or 4
(c) a police officer; or 5
(d) an officer of a law enforcement agency of another State or the 6
Commonwealth. 7
(3) Also, the court must hear the application-- 8
(a) in the absence of a person whose property is the subject of the 9
application; and 10
(b) without the relevant person having been informed of the 11
application. 12
31 Making restraining order 13
(1) The Supreme Court must make a restraining order in relation to 14
property if, after considering the application and the relevant affidavit, it is 15
satisfied there are reasonable grounds for the suspicion on which the 16
application is based. 17
(2) However, the court may refuse to make the order if-- 18
(a) the court is satisfied in the particular circumstances it is not in the 19
public interest to make the order; or 20
(b) the State fails to give the court the undertakings the court 21
considers appropriate for the payment of damages or costs, or 22
both, in relation to the making and operation of the order. 23
(3) The commission or, if the application is made by a police officer, the 24
commissioner of the police service may, for the State, give the court the 25
undertakings the court requires. 26
(4) A restraining order does not apply to property of a person acquired 27
after the order is made unless the order expressly states it applies to the 28
property. 29
(5) Also, the making of a restraining order does not prevent the person 30
whose property is restrained under the order from giving Legal Aid a 31
charge over the property as a condition of an approval to give legal 32
assistance under the Legal Aid Act in relation to-- 33
s 32 35 s 34
Criminal Proceeds Confiscation Bill 2002
(a) a proceeding under this Act; or 1
(b) a criminal proceeding in which the person is a defendant, 2
including any proceeding on appeal against conviction or 3
sentence. 4
32 Conditions of restraining order 5
(1) It is a condition of every restraining order that the person whose 6
property is restrained under the order must preserve the property. 7
(2) The Supreme Court may impose the other conditions the court 8
considers appropriate, including, but not limited to, the following-- 9
(a) a condition about who is to have possession of the property; 10
(b) a condition of a kind mentioned in section 33 or 34. 11
33 Condition about dealing with property by agreement 12
The Supreme Court may impose a condition authorising the commission 13
or, if the application is made by a police officer, the commissioner of the 14
police service to agree to-- 15
(a) the disposal of the property restrained under the restraining order 16
by its owner to enable the proceeds of the disposal to be applied 17
to satisfy all or part of a debt payable under a pecuniary penalty 18
order or a proceeds assessment order; or 19
(b) the application of the property by its owner to satisfy all or part 20
of a debt payable under a pecuniary penalty order or a proceeds 21
assessment order. 22
34 Condition about particular payments out of restrained property 23
(1) The Supreme Court may impose a condition providing for all or any 24
of the following to be paid out of the property of a particular person, or a 25
stated part of the person's property, restrained under the restraining order-- 26
(a) the person's reasonable living expenses and reasonable business 27
expenses; 28
(b) the reasonable living expenses of any of the person's dependants; 29
(c) a stated debt incurred in good faith by the person. 30
s 35 36 s 36
Criminal Proceeds Confiscation Bill 2002
(2) Subsection (1) is the only provision of this chapter under which 1
provision may be made for the payment of expenses or a debt mentioned in 2
subsection (1). 3
(3) Also, subsection (1) applies only if the Supreme Court is satisfied-- 4
(a) the person can not meet the expenses or debt out of property that 5
is not restrained under the order; and 6
(b) the property from which the expenses or debt are to be paid is not 7
illegally acquired property. 8
(4) Further, subsection (1) does not authorise the imposition of a 9
condition providing for the payment of a person's legal expenses that are 10
payable because-- 11
(a) the person is a party to a proceeding under this Act; or 12
(b) the person is a defendant in a criminal proceeding, including any 13
proceeding on appeal against conviction or sentence. 14
35 Restraining order may direct public trustee to take control of 15
property 16
If the Supreme Court considers the circumstances require it, the court 17
may, in a restraining order or a later order, direct the public trustee to take 18
control of some or all of the property restrained under the order. 19
36 Duration of restraining order 20
(1) A restraining order is in force for 28 days after it is made. 21
(2) Despite subsection (1), a restraining order continues in force after the 22
end of the 28 days if-- 23
(a) before the end of the 28 days, an application for either or both of 24
the following is made but the application has not been decided-- 25
(i) a forfeiture order for the restrained property; 26
(ii) a proceeds assessment order against a person whose 27
property is restrained under the restraining order; or 28
(b) there is an unsatisfied proceeds assessment order in force against 29
the person whose suspected serious crime related activities were 30
the basis of the restraining order; or 31
s 37 37 s 37
Criminal Proceeds Confiscation Bill 2002
(c) the order continues in force because of an order of the Supreme 1
Court under section 54.7 2
Division 3--Making other orders 3
37 Supreme Court may make other orders 4
(1) The Supreme Court may make the other orders in relation to a 5
restraining order the court considers appropriate, including, but not limited 6
to, orders mentioned in section 38. 7
(2) However, section 38(h) is the only provision of this chapter under 8
which provision may be made for the payment of legal expenses that are 9
expenses payable because-- 10
(a) the person is a party to a proceeding under this Act; or 11
(b) the person is a defendant in a criminal proceeding, including any 12
proceeding on appeal against a conviction or sentence. 13
(3) The court may make an order under this section-- 14
(a) when making the restraining order or, on application, at a later 15
time; and 16
(b) whether or not it affects a person whose property is restrained 17
under the restraining order. 18
(4) Any of the following may apply for an order under this section-- 19
(a) the State; 20
(b) a person whose property is restrained under the restraining order; 21
(c) if the restraining order directs the public trustee to take control of 22
restrained property under the restraining order--the public 23
trustee. 24
(5) Also, with the Supreme Court's leave, a person other than a person 25
mentioned in subsection (4) may apply for an order under this section. 26
(6) An applicant must give notice of the making of the application to 27
each other person who may apply under subsection (4) for an order under 28
this section. 29
7 Section 54 (Effect of dismissal of particular applications on restraining order)
s 38 38 s 38
Criminal Proceeds Confiscation Bill 2002
(7) Subsection (6) does not apply to an application for an order under 1
this section made in a proceeding on an application for a restraining order 2
that is made without notice to any person to whom it relates. 3
38 Particular orders Supreme Court may make 4
(1) For section 37, the orders are as follows-- 5
(a) an order varying the property restrained under the restraining 6
order; 7
(b) an order imposing additional conditions on the restraining order 8
or varying a condition of the order; 9
(c) an order ("examination order") requiring a person whose 10
property is restrained under the restraining order or a stated 11
person to attend for examination on oath before the court or a 12
judicial registrar about the following-- 13
(i) the affairs of any person whose property is restrained under 14
the restraining order; 15
(ii) the nature and location of any property of a person whose 16
property is restrained under the restraining order; 17
(iii) the nature and location of any property restrained under the 18
restraining order that the applicant for the order reasonably 19
suspects is serious crime derived property; 20
(d) an order (also an "examination order") requiring the spouse of 21
a person whose property is restrained under the restraining order 22
to attend for examination on oath before the court or a judicial 23
registrar about the spouse's affairs, including the nature and 24
location of property in which the spouse or the person has an 25
interest; 26
(e) an order about the performance of an undertaking given in 27
relation to the restraining order for the payment of damages or 28
costs; 29
(f) an order ("property particulars order") directing either of the 30
following to give to the commission or the public trustee, within 31
a stated time, a sworn statement of particulars of the property, or 32
dealings with the property, in which the owner has or had an 33
interest, as the court considers appropriate-- 34
(i) a person who is or was the owner of restrained property; 35
s 39 39 s 39
Criminal Proceeds Confiscation Bill 2002
(ii) if the owner of restrained property is or was a 1
corporation--an executive officer of the corporation; 2
(g) if the restraining order directs the public trustee to take control of 3
property, an order-- 4
(i) regulating the way the public trustee may perform functions 5
under the restraining order; or 6
(ii) deciding any question about the property, including a 7
question affecting the liabilities of the owner of the property 8
or the functions of the public trustee; 9
(h) an order for the payment to Legal Aid, from property restrained 10
under the restraining order, of expenses payable by the person 11
whose property is restrained because-- 12
(i) the person is a party to a proceeding under this Act; or 13
(ii) the person is a defendant in a criminal proceeding, including 14
any proceeding on appeal against conviction or sentence; 15
(i) an order ("property seizure order") requiring or authorising a 16
commission officer or a police officer to seize property restrained 17
under the restraining order. 18
(2) An order mentioned in subsection (1)(i) may state the powers the 19
commission officer or police officer may exercise for giving effect to the 20
order. 21
22
Note--
23
See sections 43 and 44 for the general effect of a property seizure order.
Division 4--Provisions about particular orders 24
Subdivision 1--Examination orders 25
39 Judicial registrar's power to conduct examinations 26
(1) A judicial registrar may conduct an examination under an 27
examination order. 28
(2) For those applications, the judicial registrar constitutes, and may 29
exercise all the jurisdiction and powers of, the court. 30
s 40 40 s 41
Criminal Proceeds Confiscation Bill 2002
(3) However, a judicial registrar may not exercise any power of the court 1
to punish for contempt. 2
40 Privilege--examination order 3
(1) A person examined under an examination order is not excused from 4
answering a question, or from producing a document or other thing, on the 5
ground that-- 6
(a) answering the question or producing the document may tend to 7
incriminate the person or make the person liable to a forfeiture or 8
penalty; or 9
(b) producing the document would be in breach of an obligation, 10
whether imposed by an enactment or otherwise, of the person not 11
to disclose the existence or contents of the document; or 12
(c) answering the question or producing the document would 13
disclose information that is the subject of legal professional 14
privilege. 15
(2) A statement or disclosure made by a person in answer to a question 16
asked in an examination under an examination order, or a document or 17
other thing produced in the examination, is not admissible against the 18
person in any civil or criminal proceeding, other than-- 19
(a) a proceeding about the false or misleading nature of the 20
statement or disclosure; or 21
(b) a proceeding on an application under this Act; or 22
(c) a proceeding for the enforcement of a confiscation order; or 23
(d) for a document or other thing, a proceeding about a right or 24
liability it confers or imposes. 25
41 Offence to contravene examination order 26
A person who is required to attend an examination under an examination 27
order under this part must not-- 28
(a) fail to attend as required by the order, unless the person has a 29
reasonable excuse; or 30
(b) fail to attend from day to day until the conclusion of the 31
examination, unless the person has a reasonable excuse; or 32
s 42 41 s 43
Criminal Proceeds Confiscation Bill 2002
(c) fail to take an oath for the purpose of the examination; or 1
(d) fail to answer a question that the person is directed to answer by 2
the court or judicial registrar; or 3
(e) make a statement in the examination that is false or misleading in 4
a material particular. 5
Maximum penalty--100 penalty units or 2 years imprisonment. 6
Subdivision 2--Property particulars orders 7
42 Privilege--property particulars order 8
(1) A person directed under a property particulars order to give a 9
statement to the commission or the public trustee is not excused from 10
giving the statement or including particulars in the statement on the ground 11
that the statement or particulars may tend to incriminate the person or make 12
the person liable to a forfeiture or penalty. 13
(2) If a person gives a statement to the commission or the public trustee 14
under a property particulars order, the statement is not admissible against 15
the person in any criminal proceeding other than a proceeding about the 16
false or misleading nature of the statement. 17
Subdivision 3--Property seizure orders 18
43 If property seizure order directed to commission officer 19
(1) This section applies if the Supreme Court makes a property seizure 20
order that is directed to a commission officer. 21
(2) The order-- 22
(a) is taken to be a search warrant issued by a Supreme Court judge 23
under the Crime and Misconduct Act 2001 in relation to 24
confiscation related evidence as defined under that Act; and 25
(b) is taken to authorise a commission officer to exercise search 26
warrant powers under the Crime and Misconduct Act 2001, 27
section 92,8 including search warrant powers mentioned in 28
8 Crime and Misconduct Act 2001, section 92 (Powers under search warrants)
s 44 42 s 44
Criminal Proceeds Confiscation Bill 2002
section 92(2) and (3) or stated in the order, to the extent 1
necessary for giving effect to the order. 2
(3) Property seized under the order is taken to have been seized under the 3
Crime and Misconduct Act 2001. 4
(4) The Crime and Misconduct Act 2001, section 939 applies to the order 5
as if the order were a search warrant. 6
(5) It is sufficient compliance with the Crime and Misconduct Act 2001, 7
section 93(1) for the commission officer to give the occupier of the place a 8
copy of the order or, if the occupier of the place is not present, to leave the 9
copy in a conspicuous place. 10
(6) The Crime and Misconduct Act 2001, sections 113 and 11410 do not 11
apply to property seized under the order. 12
44 If property seizure order directed to police officer 13
(1) This section applies if the Supreme Court makes a property seizure 14
order that is directed to a police officer. 15
(2) The order-- 16
(a) is taken to be a search warrant issued by a Supreme Court judge 17
under the Police Powers and Responsibilities Act 2000 in relation 18
to confiscation related evidence as defined under that Act; and 19
(b) is taken to authorise a police officer to exercise search warrant 20
powers under the Police Powers and Responsibilities Act 2000, 21
section 74,11 including search warrant powers mentioned in 22
section 74(2) and (3), to the extent necessary for giving effect to 23
the order. 24
(3) Property seized under the order is taken to have been seized under the 25
Police Powers and Responsibilities Act 2000. 26
9 Crime and Misconduct Act 2001, section 93 (Copy of search warrant to be given to
occupier)
10 Crime and Misconduct Act 2001, sections 113 (Application for order in relation to
seized things) and 114 (Orders magistrate may make in relation to seized things)
11 Police Powers and Responsibilities Act 2000, section 74 (Power under search
warrants)
s 45 43 s 45
Criminal Proceeds Confiscation Bill 2002
(4) The Police Powers and Responsibilities Act 2000, section 7512 applies 1
to the order as if it were a search warrant. 2
(5) It is sufficient compliance with the Police Powers and 3
Responsibilities Act 2000, section 75(1) for the police officer to give the 4
occupier of the place a copy of the order or, if the occupier of the place is 5
not present, to leave the copy in a conspicuous place. 6
7
Note--
8
The Police Powers and Responsibilities Act 2000 provisions about applications for the
9
return of things in the possession of the police service generally do not apply to things
10
seized under a property seizure order.
Division 5--Notice of restraining order and other orders 11
45 Notice of restraining order and other orders 12
(1) This section applies if the Supreme Court-- 13
(a) makes a restraining order; or 14
(b) makes another order under division 313 in relation to a restraining 15
order. 16
(2) As soon as practicable after the order is made, the commission must 17
give each person whose property is restrained under the order and anyone 18
else who is affected by the order a copy of the order. 19
(3) If the order directs the public trustee to take control of property, the 20
commission must give the public trustee a copy of the order. 21
(4) However, if the application was made for the State by the 22
commissioner of the police service, the commissioner of the police 23
service-- 24
(a) must give the commission a copy of the order; and 25
(b) must give the notice required to be given under subsection (2) 26
or (3). 27
12 Police Powers and Responsibilities Act 2000, section 75 (Copy of search warrant to
be given to occupier)
13 Division 3 (Making other orders)
s 46 44 s 46
Criminal Proceeds Confiscation Bill 2002
(5) A restraining order, or another order under division 3, does not stop 1
having effect only because a person required to be served under 2
subsection (2) has not been served with a copy of the order. 3
Division 6--Sale of restrained property 4
46 Supreme Court may order sale of restrained property 5
(1) This section applies to restrained property under a restraining order 6
only if the State applies to the Supreme Court for a forfeiture order for the 7
property and the application has not been decided. 8
(2) The State may, when applying for the forfeiture order or at a later 9
time, apply to the Supreme Court for an order directing the public trustee to 10
sell all or part of the restrained property ("application property"). 11
(3) The State must give notice of the application to each person who has 12
an interest in the application property. 13
(4) The Supreme Court may make the order if the court is satisfied, on 14
evidence of the public trustee or otherwise-- 15
(a) the application property may deteriorate or lose value before the 16
forfeiture order application is decided; or 17
(b) the cost of controlling the application property would be more 18
than the value of the property if it were disposed of after a 19
forfeiture order was made. 20
(5) The proceeds of a sale under an order under this section are taken to 21
be restrained under the restraining order applying to the application 22
property. 23
s 47 45 s 47
Criminal Proceeds Confiscation Bill 2002
Division 7--Exclusion of property from restraining order 1
Subdivision 1--Application by prescribed respondent 2
47 Supreme Court may exclude prescribed respondent's property 3
from restraining order 4
(1) The prescribed respondent under the restraining order may apply to 5
the Supreme Court to amend the order to exclude particular property of the 6
prescribed respondent from the order. 7
(2) The application must be made before the State applies for a forfeiture 8
order to be made. 9
10
Note--
11
After the State applies for a forfeiture order, an application by a prescribed respondent
12
may be made under section 65 or 66.
(3) The prescribed respondent must give notice of the making of the 13
application and the grounds for the application to the State and anyone else 14
who has an interest in the property. 15
(4) The State must be a party to the application. 16
(5) Anyone else who is given notice of the application may appear at the 17
hearing of the application. 18
(6) If the State proposes to oppose the application, the State must give 19
the applicant notice of intention to oppose the application. 20
(7) The State must give the applicant notice of the grounds for opposing 21
the application. 22
(8) However-- 23
(a) the State is not required to give the notice; and 24
(b) the application may not be heard; 25
until the DPP has had a reasonable opportunity to examine the applicant 26
under an examination order, whether or not an examination order has 27
already been made. 28
s 48 46 s 49
Criminal Proceeds Confiscation Bill 2002
48 When Supreme Court may exclude prescribed respondent's 1
property 2
(1) The Supreme Court may exclude the prescribed respondent's 3
property from the order if-- 4
(a) it is satisfied it is more probable than not that the property to 5
which the application relates is not illegally acquired property; 6
and 7
(b) the property is unlikely to be required to satisfy a proceeds 8
assessment order. 9
(2) Also, the Supreme Court may exclude the prescribed respondent's 10
property from the order if it is satisfied it is in the public interest to amend 11
the order in the particular circumstances. 12
Subdivision 2--Application by person other than prescribed respondent 13
49 Supreme Court may exclude other property from restraining 14
order 15
(1) If the Supreme Court makes a restraining order, a person other than 16
the prescribed respondent (the "applicant") whose property is restrained 17
under the order may apply to the court to amend the order to exclude the 18
applicant's property from the order. 19
(2) The applicant must give notice of the making of the application and 20
the grounds for the application to the State and anyone else who has an 21
interest in the property. 22
(3) The State must be a party to the application. 23
(4) Anyone else who is given notice of the application may appear at the 24
hearing of the application. 25
(5) If the State proposes to oppose the application, the State must give 26
the applicant notice of intention to oppose the application. 27
(6) The State must give the applicant notice of the grounds for opposing 28
the application. 29
(7) However-- 30
(a) the State is not required to give the notice; and 31
(b) the application may not be heard; 32
s 50 47 s 51
Criminal Proceeds Confiscation Bill 2002
until the DPP has had a reasonable opportunity to examine the applicant 1
under an examination order, whether or not an examination order has 2
already been made. 3
50 When Supreme Court may exclude applicant's property 4
(1) The Supreme Court may exclude the applicant's property from the 5
order if it is satisfied the applicant acquired the property-- 6
(a) in good faith and for sufficient consideration; and 7
(b) without knowing, and in circumstances not likely to arouse 8
a reasonable suspicion, that the property was illegally 9
acquired property. 10
(2) The Supreme Court may make the order only to the extent to which 11
the interest in the property concerned was not, when it first became 12
illegally acquired property, acquired using the proceeds of an illegal 13
activity. 14
(3) In addition, the Supreme Court may exclude the applicant's property 15
from the order if it is satisfied it is in the public interest to amend the order 16
in the particular circumstances. 17
Division 8--Other provisions about restraining orders 18
51 Recording of restraining order 19
(1) This section applies if a restraining order applies to property of a 20
particular kind and a law, whether or not a law of the State, provides for the 21
registration of title to, an interest in, or a charge over, property of that kind. 22
(2) On the application of the commission or the commissioner of the 23
police service, the authority responsible for administering the law must 24
record the particulars of the relevant restraining order in the register kept 25
under the law. 26
(3) Subsection (2) applies even though a relevant document of title is not 27
produced to a registrar or any other person. 28
(4) Unless the contrary is proved, a person who later deals with property 29
for which particulars are recorded under subsection (2) is taken to have had 30
notice of the relevant restraining order. 31
s 52 48 s 54
Criminal Proceeds Confiscation Bill 2002
(5) If the Land Title Act 1994 applies to the property, the commission or 1
the commissioner of the police service may lodge, and the registrar of titles 2
must register, a caveat over the property under that Act. 3
(6) As soon as practicable after the relevant restraining order stops 4
having effect in relation to the property-- 5
(a) the commission or the commissioner of the police service must 6
apply for cancellation of the record of the order; and 7
(b) the authority responsible for administering the relevant law must 8
take the steps necessary to cancel the record. 9
(7) Also, if the commission or the commissioner of the police service 10
lodged a caveat over the property under subsection (5), as soon as 11
practicable after the relevant restraining order stops having effect in 12
relation to the property, the commission or the commissioner of the police 13
service must withdraw the caveat. 14
52 Contravention of restraining order 15
(1) A person who conceals restrained property or does another act or 16
makes another omission in relation to restrained property with the intention 17
of directly or indirectly defeating the operation of the restraining order 18
commits a crime. 19
Maximum penalty--350 penalty units or 7 years imprisonment. 20
(2) It is a defence to a charge of an offence against subsection (1) for the 21
person to prove that the person had no notice that the property was 22
restrained under a restraining order and no reason to suspect it was. 23
(3) A dealing with property in contravention of subsection (1) is void 24
unless it was either for sufficient consideration or in favour of a person who 25
acted in good faith. 26
53 Restraining order does not prevent other action under this Act 27
A restraining order does not prevent the enforcement of any other order 28
made under this Act against restrained property under a restraining order. 29
54 Effect of dismissal of particular applications on restraining order 30
(1) This section applies if, while a restraining order is in force over 31
property, the Supreme Court dismisses an application for-- 32
s 55 49 s 57
Criminal Proceeds Confiscation Bill 2002
(a) a forfeiture order for the property; or 1
(b) a proceeds assessment order against the person whose property is 2
restrained under the restraining order. 3
(2) The Supreme Court may-- 4
(a) if the court considers it appropriate, make an order extending the 5
operation of the restraining order for a stated period or in stated 6
circumstances; or 7
(b) make another order the court considers appropriate about the 8
operation of the restraining order. 9
(3) An order under subsection (2) may be made to take effect 10
immediately, at a stated time, or when a stated event happens. 11
55 Authority under restraining order 12
A restraining order is sufficient authority for a person to whom the order 13
is directed to take all steps necessary or desirable to give effect to the order. 14
PART 4--FORFEITURE ORDERS 15
Division 1--Making and effect of forfeiture orders 16
56 Application for forfeiture order 17
(1) The State may apply to the Supreme Court for an order ("forfeiture 18
order") forfeiting to the State particular property restrained under a 19
restraining order. 20
(2) The application may include particulars of any encumbrance over the 21
restrained property that an appropriate officer considers an encumbrancee 22
took in good faith, for valuable consideration, and in the ordinary course of 23
the encumbrancee's business. 24
57 Notice of application 25
(1) The commission or, if the application is made for the State by a 26
police officer, the commissioner of the police service must give written 27
s 58 50 s 58
Criminal Proceeds Confiscation Bill 2002
notice of the application to each person whose property is restrained under 1
the restraining order and anyone else the commission or the commissioner 2
of the police service considers has an interest in the restrained property. 3
(2) A person given notice under subsection (1) may appear at the hearing 4
of the application. 5
(3) Anyone else who claims any of the property may also appear at the 6
hearing of the application. 7
(4) The absence of a person given notice under subsection (1) does not 8
prevent the court from making a forfeiture order. 9
58 Making forfeiture order 10
(1) The Supreme Court must make a forfeiture order if the court finds it 11
is more probable than not that-- 12
(a) for property restrained because of an application relating to 13
property mentioned in section 28(3)(a) or (b)14--the prescribed 14
respondent mentioned in that application engaged during the 15
limitation period in a serious crime related activity; or 16
(b) for property restrained because of an application relating to 17
property mentioned in section 28(3)(c)--the property is serious 18
crime derived property because of a serious crime related activity 19
that happened during the limitation period. 20
(2) Subsection (1)(b) applies whether or not the person who engaged in 21
the serious crime related activity because of which the property became 22
serious crime derived property has been identified. 23
(3) However, for property mentioned in subsection (1)(b), the court must 24
also be satisfied the commission or, if the application is made for the State 25
by a police officer, the commissioner of the police service, has taken 26
reasonable steps to identify and notify anyone with an interest in the 27
property. 28
(4) Also, the court may refuse to make the order if the court is satisfied it 29
is not in the public interest to make the order. 30
(5) A finding of the court under subsection (1)-- 31
(a) need not be based on a finding about the commission of a 32
particular offence; and 33
14 Section 28 (Application for restraining order)
s 59 51 s 59
Criminal Proceeds Confiscation Bill 2002
(b) may be based on a finding that some offence that is a serious 1
crime related activity was committed. 2
(6) Also, the raising of a doubt whether a person engaged in a serious 3
crime related activity is not of itself enough to avoid a finding on which a 4
forfeiture order may be made. 5
(7) The forfeiture order must state the property to which it applies. 6
7
Note--
8
Property may be excluded from the effect of a forfeiture order if it has been excluded
9
under section 47, 49 or 68.15
(8) The court may make the ancillary orders the court considers 10
appropriate when it makes a forfeiture order or at a later time. 11
12
Example--
13
Ancillary orders for facilitating the transfer to the State of property forfeited to the
14
State.
(9) In this section-- 15
"limitation period"-- 16
(a) means the period of 6 years before the day the application for the 17
order is made; 18
(b) includes periods before and after the commencement of this 19
section. 20
59 Effect of forfeiture order 21
(1) On the making of a forfeiture order the property the subject of the 22
order-- 23
(a) is forfeited to the State; and 24
(b) vests absolutely in the State. 25
15 Sections 47 (Supreme Court may exclude prescribed respondent's property from
restraining order), 49 (Supreme Court may exclude other property from restraining
order) and 68 (Making of exclusion order)
s 60 52 s 62
Criminal Proceeds Confiscation Bill 2002
(2) Subsection (1)(b) is subject to the provisions of this Act under which 1
the Supreme Court may make orders about the property vested or to be 2
vested in the State. 3
60 Dealing with forfeited property prohibited 4
(1) A person who conceals property that is the subject of a forfeiture 5
order or does another act or makes another omission in relation to property 6
that is the subject of a forfeiture order with the intention of directly or 7
indirectly defeating the operation of the forfeiture order commits a crime. 8
Maximum penalty--350 penalty units or 7 years imprisonment. 9
(2) It is a defence to a charge of an offence against subsection (1) for the 10
person to prove that the person had no notice that the property was the 11
subject of a forfeiture order and no reason to suspect it was. 12
(3) A dealing with property in contravention of subsection (1) is void 13
unless it was either for sufficient consideration or in favour of a person who 14
acted in good faith. 15
61 Effect of quashing of conviction on forfeiture order 16
The quashing of a conviction for a serious crime related activity does not 17
affect the validity of a forfeiture order made before or after the conviction 18
was quashed and based on the serious crime related activity. 19
Division 2--Other orders 20
Subdivision 1--Orders for relief from hardship 21
62 Relief from hardship for dependants 22
(1) If the Supreme Court is satisfied the operation of a forfeiture order 23
will cause hardship to a dependant of the person who will forfeit property 24
under the order, the court may-- 25
(a) order the State to pay to the dependant out of the proceeds of the 26
sale of the property the amount the court considers necessary to 27
prevent hardship to the dependant; and 28
s 63 53 s 64
Criminal Proceeds Confiscation Bill 2002
(b) if the dependant is under 18 years old, make the ancillary orders 1
the court considers necessary for ensuring the proper application 2
of an amount to be paid to the dependant. 3
(2) The court must not make an order under subsection (1) in favour of 4
an adult dependant of a person whose serious crime related activity was the 5
basis for the forfeiture order concerned unless the court is satisfied the 6
dependant had no knowledge of any serious crime related activities of the 7
person. 8
(3) In this section-- 9
"dependant" of a person means a spouse or child of the person, or a 10
member of the household of the person, dependent for support on the 11
person. 12
Subdivision 2--Orders about encumbrances 13
63 Forfeiture order may provide for discharge of encumbrance 14
(1) If-- 15
(a) the Supreme Court is satisfied an encumbrancee took an 16
encumbrance over property to be forfeited under a forfeiture 17
order in good faith, for valuable consideration, and in the 18
ordinary course of the encumbrancee's business; and 19
(b) the State gives an undertaking to apply the proceeds of disposing 20
of the forfeited property towards discharging the encumbrance; 21
the court may make the orders about the encumbrance the court considers 22
appropriate. 23
(2) The commission or, if the application is made by a police officer, the 24
commissioner of the police service may give the undertaking for the State. 25
Subdivision 3--Releasing property from effect of forfeiture order 26
64 Order for release of property from forfeiture order 27
(1) The Supreme Court may order ("release order") that a stated 28
interest in property of a stated person that has been forfeited under a 29
forfeiture order may be released from the forfeiture order on payment to 30
the State of the amount the court decides is the value of the interest. 31
s 65 54 s 65
Criminal Proceeds Confiscation Bill 2002
(2) The order must state the nature, extent and value, when the order is 1
made, of the person's interest in the forfeited property. 2
(3) The court may make the order only if it is satisfied-- 3
(a) the interest is still vested in the State; and 4
(b) it would not be against the public interest for the interest to be 5
transferred to the person; and 6
(c) there is no other reason the interest should not be transferred to 7
the person. 8
Subdivision 4--Exclusion of property from forfeiture under exclusion 9
order 10
65 Exclusion of property from forfeiture order application 11
(1) This section applies if an application for a forfeiture order has been 12
made but the application has not been decided. 13
(2) A person, including a prescribed respondent, who claims an interest 14
in property to which the application relates may apply to the Supreme 15
Court for an exclusion order. 16
(3) The applicant must give notice of the making of the application and 17
the grounds for the application to the State and anyone else who has an 18
interest in the property. 19
(4) The State must be a party to the application. 20
(5) Anyone else who is given notice of the application may appear at the 21
hearing of the application. 22
(6) If the State proposes to oppose the application, the State must give 23
the applicant notice of intention to oppose the application. 24
(7) The State must give the applicant notice of the grounds for opposing 25
the application. 26
(8) However-- 27
(a) the State is not required to give the notice; and 28
(b) the application may not be heard; 29
s 66 55 s 66
Criminal Proceeds Confiscation Bill 2002
until the DPP has had a reasonable opportunity to examine the applicant 1
under an examination order, whether or not an examination order has 2
already been made. 3
66 Exclusion of property from forfeiture order 4
(1) A person, including a prescribed respondent, who claims an interest 5
in property that is forfeited under a forfeiture order may apply to the 6
Supreme Court for an exclusion order. 7
(2) Unless the court gives leave under section 67-- 8
(a) the application must be made within 6 months after the forfeiture 9
order was made; and 10
(b) the following persons can not apply for an exclusion order-- 11
(i) a person who was given notice of the application for the 12
forfeiture order; 13
(ii) a person who appeared at the hearing of the application for 14
the forfeiture order. 15
(3) For each application made under this section, including an 16
application for leave the applicant must give notice of the making of the 17
application and the grounds for the application to the State and anyone else 18
who has an interest in the property. 19
(4) The State must be a party to the application. 20
(5) Anyone else who is given notice of the application may appear at the 21
hearing of the application. 22
(6) If the State proposes to oppose the application, the State must give 23
the applicant notice of intention to oppose the application. 24
(7) The State must give the applicant notice of the grounds for opposing 25
the application. 26
(8) However-- 27
(a) the State is not required to give the notice; and 28
(b) the application may not be heard; 29
until the DPP has had a reasonable opportunity to examine the applicant 30
under an examination order, whether or not an examination order has 31
already been made. 32
s 67 56 s 69
Criminal Proceeds Confiscation Bill 2002
67 When Supreme Court may give leave for s 66 1
(1) The Supreme Court may give leave to apply for an exclusion order 2
after the end of the 6 months mentioned in section 66(2)(a) if it is satisfied 3
the delay in applying was not because of the applicant's neglect. 4
(2) Also, the Supreme Court may give a person mentioned in 5
section 66(2)(b) leave to apply for an exclusion order only if it considers 6
there are special grounds, including, for example-- 7
(a) for a good reason, the person did not attend the hearing of the 8
application for the forfeiture order even though the person had 9
notice of it; or 10
(b) particular evidence proposed to be presented by the person in the 11
application was not available to the person when the application 12
for the forfeiture order was heard. 13
68 Making of exclusion order 14
The Supreme Court must, and may only, make an exclusion order if it is 15
satisfied-- 16
(a) the applicant has or, apart from the forfeiture, would have, an 17
interest in the property; and 18
(b) it is more probable than not that the property to which the 19
application relates is not illegally acquired property. 20
69 What exclusion order must state 21
(1) An exclusion order-- 22
(a) must state the nature, extent and, if necessary for the order, the 23
value, when the order is made, of the applicant's interest in the 24
property; and 25
(b) if the application for the forfeiture order has not been decided, 26
must exclude the applicant's property from the application for the 27
forfeiture order; and 28
(c) if a forfeiture order has been made for the property, and the 29
property is still vested in the State, must direct the State to 30
transfer the property to the applicant; and 31
s 70 57 s 71
Criminal Proceeds Confiscation Bill 2002
(d) if a forfeiture order has been made for the property and the 1
property is no longer vested in the State, must direct the State to 2
pay to the applicant the value of the applicant's property. 3
(2) However, if the applicant is the prescribed respondent and an 4
application has been made for a proceeds assessment order against the 5
prescribed respondent, subsection (1)(b) applies only if the court is 6
satisfied the property is unlikely to be required to satisfy any proceeds 7
assessment order the court may make against the person. 8
70 Effect of exclusion order 9
On the making of an exclusion order excluding an interest in property 10
from an application for a forfeiture order, the restraining order applying to 11
the restrained property stops having effect in relation to the excluded 12
interest. 13
Subdivision 5--Exclusion of interest from forfeiture under innocent 14
interest exclusion order 15
71 Exclusion of value of innocent interest from forfeiture order 16
(1) A person who has an interest in particular property to which a 17
forfeiture order relates may apply to the Supreme Court for an innocent 18
interest exclusion order. 19
(2) Unless the court gives leave under section 72-- 20
(a) the application must be made within 6 months after the forfeiture 21
order was made; and 22
(b) the following persons can not apply for an innocent interest 23
exclusion order-- 24
(i) a person who was given notice of the application for the 25
forfeiture order; 26
(ii) a person who appeared at the hearing of the application for 27
the forfeiture order. 28
(3) For each application made under this section, including an 29
application for leave, the applicant must give notice of the making of the 30
application and the grounds for the application to the State and anyone else 31
who has an interest in the property. 32
s 72 58 s 73
Criminal Proceeds Confiscation Bill 2002
(4) The State must be a party to the application. 1
(5) Anyone else who is given notice of the application may appear at the 2
hearing of the application. 3
(6) If the State intends to oppose the application, the State must give the 4
applicant-- 5
(a) notice of intention to oppose the application; and 6
(b) the grounds for opposing the application. 7
72 When Supreme Court may give leave for s 71 8
(1) The Supreme Court may give leave to apply for an innocent interest 9
exclusion order after the end of the 6 months mentioned in section 71(2)(a) 10
if it is satisfied the delay in applying was not because of the applicant's 11
neglect. 12
(2) Also, the Supreme Court may give a person mentioned in 13
section 71(2)(b) leave to apply for an innocent interest order only if it is 14
satisfied there are special grounds, including, for example-- 15
(a) for a good reason, the person did not attend the hearing of the 16
application for the forfeiture order even though the person had 17
notice of it; or 18
(b) particular evidence proposed to be presented by the person in the 19
application was not available to the person when the application 20
for the forfeiture order was heard. 21
73 Making of innocent interest exclusion order 22
(1) The Supreme Court must, and may only, make an innocent interest 23
exclusion order if the applicant proves it is more probable than not that a 24
stated proportion of the value of the interest in property forfeited under the 25
forfeiture order is not attributable to the proceeds of an illegal activity. 26
(2) The Supreme Court may make the order only to the extent to which 27
the interest in the property concerned was not, when it first became 28
illegally acquired property, acquired using the proceeds of an illegal 29
activity. 30
s 74 59 s 76
Criminal Proceeds Confiscation Bill 2002
74 What innocent interest exclusion order must state 1
An innocent interests exclusion order must-- 2
(a) state the nature, extent and, if necessary for the order, the value, 3
when the order is made, of the interest mentioned in 4
section 73(2); and 5
(b) direct the State to pay to the applicant the value of the interest. 6
Division 3--Release and buying back interests 7
75 Effect of payment under release order 8
(1) On the payment to the State of the amount stated in a release order as 9
the value of an interest in forfeited property, while the interest is still vested 10
in the State, the forfeiture order ceases to apply to the interest. 11
(2) As soon as practicable after the amount is paid, the Attorney-General 12
must arrange for the interest to be transferred to the person in whom it was 13
vested immediately before the property was forfeited to the State. 14
(3) The Attorney-General may do or authorise the doing of anything 15
necessary or convenient to be done for the transfer. 16
76 Buying out other interests under court order 17
(1) This section applies if-- 18
(a) property that is forfeited to the State under a forfeiture order is 19
still vested in the State; and 20
(b) the property or an interest in the property is required to be 21
transferred to a person (the "buyer") under an exclusion order or 22
an innocent interest order or under section 75; and 23
(c) the buyer's interest in the property, immediately before the 24
forfeiture, was not the only interest in the property. 25
(2) If the buyer intends to buy the other interests in the property, the 26
buyer must give written notice to any other person who had an interest in 27
the property immediately before the forfeiture stating-- 28
(a) the buyer intends to buy the other interests from the State; and 29
s 77 60 s 77
Criminal Proceeds Confiscation Bill 2002
(b) within 21 days after receiving the notice, the person may give the 1
Attorney-General a written objection to the sale of the person's 2
interest to the buyer. 3
(3) If-- 4
(a) the person given the notice does not give a written objection to 5
the buying of the interest to the Attorney-General within the 6
21 days; and 7
(b) the buyer pays to the State an amount equal to the value of the 8
interest; 9
the Attorney-General must arrange for the interest to be transferred to the 10
buyer. 11
(4) The Attorney-General may do, or authorise the doing of, anything 12
necessary or convenient to be done for the transfer. 13
PART 5--PROCEEDS ASSESSMENT ORDERS 14
Division 1--Application for, and making of, proceeds assessment orders 15
77 Application for proceeds assessment order 16
(1) The State may apply to the Supreme Court for an order ("proceeds 17
assessment order") requiring a person to pay to the State the value of the 18
proceeds derived from the person's illegal activity that took place within 19
6 years before the day the application for the order is made. 20
(2) The State must give notice of the application to the person against 21
whom the order is sought and anyone else required under a regulation to be 22
given notice. 23
(3) A person given notice under subsection (2) may appear at the hearing 24
of the application. 25
(4) The absence of a person required to be given notice of the application 26
does not prevent the Supreme Court from making a proceeds assessment 27
order. 28
(5) The 6 years mentioned in subsection (1) includes periods before and 29
after the commencement of this section. 30
s 78 61 s 80
Criminal Proceeds Confiscation Bill 2002
78 Making of proceeds assessment order 1
(1) The Supreme Court must make a proceeds assessment order against a 2
person if the court finds it is more probable than not that, at any time within 3
the 6 years before the application was made, the person engaged in a 4
serious crime related activity. 5
(2) However, the court may refuse to make the order if the court is 6
satisfied it is not in the public interest to make the order. 7
(3) A finding of the court under subsection (1)-- 8
(a) need not be based on a finding about the commission of a 9
particular offence; and 10
(b) may be based on a finding that some offence that is a serious 11
crime related activity was committed. 12
(4) The court may make the ancillary orders the court considers 13
appropriate when it makes the proceeds assessment order or at a later time. 14
79 Amount must be stated in proceeds assessment order 15
(1) A proceeds assessment order must state, as the amount required to be 16
paid to the State, the value of the proceeds derived from the person's illegal 17
activity. 18
(2) The value of the proceeds must be assessed under division 2. 19
(3) However, the Supreme Court may, if it considers it appropriate, 20
deduct from the value of the proceeds the value of any property forfeited 21
under a forfeiture order made in relation to a person's illegal activities. 22
(4) In assessing the value of the proceeds, the Supreme Court is not 23
limited to assessing the value of the serious crime related activity on which 24
the application is based but must assess the value of other illegal activities 25
of the person during the period to which the proceeds assessment order 26
application relates. 27
80 Proceeds assessment order increase if forfeiture order discharged 28
(1) This section applies if-- 29
(a) the Supreme Court makes a proceeds assessment order; and 30
s 81 62 s 82
Criminal Proceeds Confiscation Bill 2002
(b) in deciding the value of the proceeds derived from a person's 1
illegal activities, the court takes into account the value of 2
property forfeited under a forfeiture order; and 3
(c) after the proceeds assessment order is made, the forfeiture ends 4
because of an appeal. 5
(2) The State may apply to the Supreme Court for a variation of the 6
proceeds assessment order to increase the amount payable under the order. 7
(3) If the Supreme Court considers an increase appropriate, it may vary 8
the amount payable under the proceeds assessment order. 9
Division 2--Assessment of value of proceeds 10
81 Application of div 3 11
(1) This division applies to-- 12
(a) property in Queensland or elsewhere; and 13
(b) proceeds of an illegal activity, whether acquired in Queensland or 14
elsewhere. 15
(2) Also, this division applies for assessing the value of the proceeds 16
derived from an illegal activity of a person ("relevant person"). 17
82 Matters to which Supreme Court must have regard 18
(1) The Supreme Court must have regard to the evidence before it about 19
the following-- 20
(a) the value of cash and other property that came into the possession 21
or under the control of the relevant person or someone else at the 22
request, or by the direction, of the relevant person, because of the 23
illegal activity; 24
(b) the value of any benefit provided for the relevant person or 25
someone else at the request, or by the direction, of the relevant 26
person, because of the illegal activity; 27
(c) if the illegal activity involved a dangerous drug or controlled 28
substance (the "illegal drug")-- 29
s 83 63 s 83
Criminal Proceeds Confiscation Bill 2002
(i) the market value, when the illegal activity happened, of a 1
dangerous drug or controlled substance similar, or 2
substantially similar, to the illegal drug; and 3
(ii) the amount that was, or the range of amounts that were, 4
ordinarily paid for an act similar, or substantially similar, to 5
the illegal activity; 6
(d) the value of the relevant person's property before, during and 7
after the illegal activity; 8
(e) the relevant person's income and expenditure before, during and 9
after the illegal activity. 10
(2) The court-- 11
(a) may treat as the value of the proceeds the value the proceeds 12
would have had if derived when the valuation is being made; and 13
(b) without limiting paragraph (a), may have regard to any decline in 14
the purchasing power of money between the time the proceeds 15
were derived and the time the valuation is being made. 16
83 How particular amounts may be treated 17
(1) This section applies if, at the hearing of an application for a proceeds 18
assessment order-- 19
(a) evidence is given that the value of the person's property after an 20
illegal activity was more than the value of the property before the 21
activity; or 22
(b) evidence is given of the amount of the person's expenditure 23
within the 6 years before the day the application for the order 24
was made. 25
(2) If subsection (1)(a) applies, the court must treat the difference as 26
proceeds derived by the person from the activity, other than to the extent 27
the court is satisfied the reason for the difference was not related to an 28
illegal activity. 29
(3) If subsection (1)(b) applies, the court must treat the amount as 30
proceeds derived by the person from an illegal activity, other than to the 31
extent the court is satisfied the expenditure was funded from income, or 32
amounts from other sources, not related to an illegal activity. 33
(4) The court must not take expenditure into account under 34
subsection (3) to the extent the court is satisfied it resulted in the 35
s 84 64 s 86
Criminal Proceeds Confiscation Bill 2002
acquisition of property the value of which is taken into account under 1
subsection (2). 2
84 Particular amounts not to be deducted 3
For this division, any expenses or outgoings incurred by the relevant 4
person in relation to the illegal activity must be disregarded. 5
6
Example--
7
For deciding the value of the proceeds derived by the relevant person from an illegal
8
activity involving the sale of dangerous drugs the person's expenses paid in acquiring
9
the drugs must be disregarded.
85 Evidence by prescribed officer 10
(1) Despite any rule of law or practice about hearsay evidence, the court 11
may, for this division, receive evidence of the opinion of a prescribed 12
officer who is experienced in the investigation of illegal activities involving 13
dangerous drugs about-- 14
(a) the market value at a particular time of a particular kind of 15
dangerous drug or controlled substance; or 16
(b) the amount, or range of amounts, ordinarily paid at a particular 17
time for the doing of anything in relation to a particular kind of 18
dangerous drug or controlled substance. 19
(2) In this section-- 20
"prescribed officer" means-- 21
(a) a police officer; or 22
(b) a member of the Australian Federal Police; or 23
(c) an officer of customs within the meaning of the Customs Act 24
1901 (Cwlth); or 25
(d) an authorised commission officer. 26
Division 3--Other provisions about proceeds assessment orders 27
86 Proceeds assessment order amount is debt payable to State 28
(1) The amount a person is ordered to pay to the State under a proceeds 29
assessment order is a debt payable by the person to the State. 30
s 87 65 s 88
Criminal Proceeds Confiscation Bill 2002
(2) The proceeds assessment order may be enforced as if it were a 1
money order made by the Supreme Court in a civil proceeding taken by the 2
State against the person for the recovery of the amount payable under the 3
proceeds assessment order. 4
87 Enforcement of order against property under effective control 5
(1) The State may apply to the Supreme Court for an order declaring that 6
particular property is under the effective control of a person against whom 7
the court has made a proceeds assessment order (the "controlling 8
person"). 9
(2) The commission or, if the application is made for the State by a 10
police officer, the commissioner of the police service must give written 11
notice of the application to-- 12
(a) the controlling person; and 13
(b) anyone else the commission, or the commissioner of the police 14
service, considers may have an interest in the property. 15
(3) The controlling person, and anyone else who claims an interest in the 16
property, may appear at the hearing of the application. 17
(4) If the court is satisfied that the property is under the effective control 18
of the controlling person, the court may make an order declaring that the 19
property is available to satisfy the proceeds assessment order to the extent 20
to which property of the controlling person is not readily available for the 21
purpose. 22
(5) The proceeds assessment order may be enforced against the property, 23
to the extent stated in the declaration, as if the property were the controlling 24
person's property. 25
(6) The court may also make a restraining order in relation to the 26
property as if the property were the controlling person's property. 27
(7) The absence of a person required to be given notice of the application 28
does not prevent the court from making the order. 29
88 Charge on property 30
(1) On the making of a proceeds assessment order against a person, all 31
the interests of the person in property are, while the amount payable under 32
the order remains unpaid, charged in favour of the State to the extent 33
necessary to secure payment of the amount. 34
s 89 66 s 89
Criminal Proceeds Confiscation Bill 2002
(2) A charge created under subsection (1)-- 1
(a) is subject to every encumbrance on the property that came into 2
existence before the charge and that would, apart from this 3
paragraph, have priority over the charge; and 4
(b) has priority over all other encumbrances; and 5
(c) is not affected by any change of ownership of the interest 6
charged, unless the charge stops having effect under 7
subsection (3). 8
(3) The charge stops having effect if any of the following happens-- 9
(a) the proceeds assessment order is discharged on the hearing of an 10
appeal against the making of the order; 11
(b) the amount payable to the State is paid; 12
(c) the person against whom the order is made becomes bankrupt; 13
(d) the interest charged is sold or otherwise disposed of under this 14
Act other than under a condition of a restraining order under this 15
chapter or chapter 3 or by order of the Supreme Court under 16
section 46 or 138;16 17
(e) the interest charged is sold to a purchaser for sufficient 18
consideration who, at the time of purchase, had no notice of the 19
charge. 20
(4) If a law, whether or not a law of the State, provides for the 21
registration of title to, interests in, or charges over, property charged under 22
subsection (1), the public trustee or an appropriate officer may cause the 23
charge to be registered under that law. 24
89 Effect of other actions on proceeds assessment order 25
(1) The quashing of a conviction for a serious crime related activity does 26
not affect the validity of a proceeds assessment order. 27
(2) If a proceeds assessment order is made against a deceased, the order 28
has effect before final distribution of the estate as if the person had died the 29
day after the making of the order. 30
16 Sections 46 (Supreme Court may order sale of restrained property)
and 138 (Supreme Court may order sale of restrained property)
s 90 67 s 92
Criminal Proceeds Confiscation Bill 2002
PART 6--GENERAL 1
90 Serious crime related activity can form basis of a number of 2
orders 3
(1) The fact that a restraining order or a forfeiture order has been made 4
on the basis of a person's serious crime related activity does not prevent the 5
making of another restraining order or forfeiture order on the basis of that 6
activity. 7
(2) Also, the fact that a forfeiture order has been made on the basis of a 8
person's serious crime related activity does not prevent the making of a 9
proceeds assessment order on the basis of that activity. 10
(3) In addition, the fact that a proceeds assessment order has been made 11
on the basis of a person's serious crime related activity does not prevent the 12
making of a forfeiture order on the basis of that activity. 13
91 Effect of death of person involved 14
(1) A notice authorised or required to be given under this chapter to a 15
person who is dead is taken to have been given if it is given to the person's 16
legal personal representative. 17
(2) A reference in this chapter to an interest in property of a person who 18
is dead is a reference to an interest in the property the person had 19
immediately before death. 20
(3) An order may be applied for and made under this chapter-- 21
(a) in relation to a person's interest in property even if the person is 22
dead; and 23
(b) on the basis of the previous activities of a person who is dead. 24
92 Effect of death of joint owner of restrained property 25
(1) This section applies only if a person who is a joint owner of 26
restrained property under a restraining order dies while the restraining 27
order is in force. 28
(2) The death of the person does not, while the order is in force, operate 29
to vest the deceased's interest in the surviving joint owner or owners. 30
s 93 68 s 94
Criminal Proceeds Confiscation Bill 2002
(3) Also, the restraining order continues to apply to the interest as if the 1
person had not died. 2
(4) A forfeiture order applying to the interest applies as if the order took 3
effect immediately before the person died. 4
(5) If a restraining order stops applying to property without a forfeiture 5
order being made in relation to the property, subsection (2) is taken not to 6
have applied to the property. 7
93 No stay of proceedings 8
The fact that a criminal proceeding has been started against a person, 9
whether or not under this Act, is not a ground on which the Supreme Court 10
may stay a proceeding against or in relation to the person under this chapter 11
that is not a criminal proceeding. 12
CHAPTER 3--CONFISCATION AFTER 13
CONVICTION 14
PART 1--PRELIMINARY 15
94 Explanation of ch 3 16
(1) This chapter enables proceedings to be started against a person to 17
recover property and benefits derived from, and anything used for, or in the 18
commission of, a confiscation offence, after the person has been charged 19
with or convicted of the offence. 20
(2) It does this by enabling a court, as a preliminary step in appropriate 21
cases, to make a restraining order preventing the property being dealt with 22
without the court's leave. 23
(3) It also empowers the court to forfeit the following property to the 24
State-- 25
(a) property used, or intended to be used, in or for the commission of 26
a confiscation offence; 27
s 95 69 s 97
Criminal Proceeds Confiscation Bill 2002
(b) property derived from property mentioned in paragraph (a) or 1
from the commission of a confiscation offence. 2
3
Note--
4
For matters that the court is to consider in deciding whether to forfeit property
5
mentioned in paragraph (a), see section 151(2).17
(4) In addition, it provides a mechanism for-- 6
(a) preventing the disposal or concealment of property and benefits 7
derived from the commission of a confiscation offence; and 8
(b) depriving persons who have directly or indirectly benefited from 9
the commission of a confiscation offence of the benefits derived 10
from the offence. 11
95 Application of ch 3 12
(1) This chapter applies in relation to-- 13
(a) a confiscation offence committed or suspected of having been 14
committed at any time, whether before or after the 15
commencement of this Act; and 16
(b) a person's conviction of a confiscation offence at any time, 17
whether before or after the commencement of this Act. 18
(2) Subsection (1) applies subject to section 96. 19
96 Matters ch 3 does not apply to 20
(1) This chapter does not apply to a person's conviction of an offence if 21
the person was convicted of the offence before 12 May 1989. 22
(2) Subsection (1) does not apply to interstate forfeiture orders, interstate 23
pecuniary penalty orders or interstate restraining orders. 24
97 Application may be made for more than 1 order 25
Nothing in this chapter prevents a court hearing and deciding at the same 26
time-- 27
(a) an application for a forfeiture order or pecuniary penalty order; 28
and 29
17 Section 151 (Making forfeiture order)
s 98 70 s 99
Criminal Proceeds Confiscation Bill 2002
(b) an application under a Commonwealth law that makes provision 1
substantially similar to this chapter. 2
98 Constitution of court 3
(1) This section applies-- 4
(a) if an application for a forfeiture order, pecuniary penalty order or 5
restraining order is made to a court before which a person was 6
convicted of a confiscation offence; and 7
(b) whether or not the court is constituted in the same way as it was 8
constituted when the person was convicted of the offence. 9
(2) The court-- 10
(a) may deal with the application; and 11
(b) may perform any function and exercise any power in relation to 12
the forfeiture order, pecuniary penalty order or restraining order, 13
that the court may perform or exercise under this Act. 14
PART 2--INTERPRETATION 15
Division 1--References to relevant offences 16
99 Meaning of "confiscation offence" 17
An offence is a "confiscation offence" if it is-- 18
(a) a serious criminal offence; or 19
(b) another indictable offence, whether dealt with on indictment or 20
summarily; or 21
(c) an offence against this Act for which an offender is liable to 22
imprisonment; or 23
(d) an offence against an Act or a provision specified in schedule 2, 24
part 2;18 or 25
18 Schedule 2 (Offences), part 2 (Confiscation offences)
s 100 71 s 104
Criminal Proceeds Confiscation Bill 2002
(e) another offence prescribed under a regulation as a confiscation 1
offence. 2
3
Note--
4
This definition applies to the whole Act. See the dictionary.
100 Meaning of "serious criminal offence" 5
"Serious criminal offence" has the same meaning as in section 17.19 6
Division 2--References to property and benefits 7
101 Meaning of "benefit" 8
"Benefit" includes service and advantage. 9
102 Meaning of "benefit derived" 10
A "benefit derived" by a person includes a benefit derived by someone 11
else at the person's request or direction. 12
103 Meaning of "effective control" 13
"Effective control" of property has the same meaning as in section 20. 20
14
15
Note--
16
The definition of property is given by the Acts Interpretation Act 1954, section 36.
104 Meaning of "tainted property" 17
(1) "Tainted property", for a confiscation offence, means-- 18
(a) property used, or intended to be used, by a person in, or in 19
connection with, the commission of the offence; or 20
(b) property derived by a person from property mentioned in 21
paragraph (a); or 22
19 Section 17 (Meaning of "serious criminal offence")
20 Section 20 (Meaning of "effective control" of property)
s 105 72 s 105
Criminal Proceeds Confiscation Bill 2002
(c) property derived by a person from the commission of the 1
offence; or 2
(d) if the offence is money laundering, property mentioned in 3
section 250(2)(a);21 or 4
(e) if the offence is against section 252(1),22 property mentioned in 5
that subsection. 6
(2) Property mentioned in subsection (1)(a) includes property the use of 7
which is, or the intended use of which would be, all or part of the 8
confiscation offence. 9
(3) Subsection (1)(d) and (e)-- 10
(a) do not limit subsection (1)(a) to (c); and 11
(b) apply even though an act done in relation to the property is all or 12
part of the confiscation offence. 13
(4) If the confiscation offence is conspiracy to commit a confiscation 14
offence, the references to the confiscation offence in subsection (1)(a) 15
and (c) are taken to include a reference to the confiscation offence the 16
subject of the conspiracy. 17
18
Note--
19
An offence may be a conspiracy to commit a confiscation offence if it is an ancillary
20
offence to a serious criminal offence, or another indictable offence that is a conspiracy
21
to commit a crime under the Criminal Code, section 541.
Division 3--References to relevant criminal proceedings 22
105 Meaning of "charge" if complaint made 23
(1) This section applies if a proceeding for an offence is started against a 24
person-- 25
(a) by complaint and summons under the Justices Act 1886; or 26
(b) by notice to appear under the Police Powers and Responsibilities 27
Act 2000. 28
(2) If the complaint is sworn, the person is charged when the complaint 29
is made whether or not a justice has issued on the complaint-- 30
21 Section 250 (Money laundering)
22 Section 252 (Possession etc. of property suspected of being tainted property)
s 106 73 s 107
Criminal Proceeds Confiscation Bill 2002
(a) a summons requiring the person's attendance before a court; or 1
(b) a warrant for the person's arrest. 2
(3) If the complaint is not sworn, the person is charged when the 3
summons is served on the person. 4
(4) If the proceeding is started by notice to appear, the person is charged 5
when the notice to appear is issued and served on the person. 6
106 Meaning of "convicted" of offence 7
(1) A person must be treated as if "convicted" of an offence if-- 8
(a) the person is found guilty of the offence, whether or not a 9
conviction is recorded; or 10
(b) the offence is taken into account by a court in sentencing the 11
person for another offence; or 12
(c) the person becomes unamenable to justice for the offence; or 13
(d) the person is acquitted of the offence because of unsoundness of 14
mind. 15
(2) However, if a person is treated as if convicted of a confiscation 16
offence because-- 17
(a) the person is unamenable to justice for the offence; or 18
(b) the person is acquitted of the offence because of unsoundness of 19
mind; 20
a court may rely on the person being so treated to make a forfeiture order, 21
pecuniary penalty order or special forfeiture order only if it is satisfied that, 22
apart from paragraph (a) or (b), the evidence is of sufficient weight to 23
support a conviction of the person for the offence. 24
107 Meaning of "quash" a conviction 25
(1) "Quash" includes set aside and rescind.23 26
(2) Also, a person's conviction is taken to be "quashed" if-- 27
23 This definition covers various expressions used in the Criminal Code, section 668E
(Determination of appeal in ordinary cases) and the Justices Act 1886, section 225
(Powers of judge on hearing appeal).
s 108 74 s 109
Criminal Proceeds Confiscation Bill 2002
(a) for a conviction because a person is found guilty of an offence, 1
whether or not a conviction is recorded, the conviction is quashed 2
by a court or a free pardon is granted by the Governor; or 3
(b) for a conviction because an offence is taken into account by a 4
court in sentencing the person for another offence-- 5
(i) the person's conviction of the other offence is quashed; or 6
(ii) the court's decision to take the offence into account is 7
quashed by a court; or 8
(c) for a conviction because a person has become unamenable to 9
justice, the person is afterwards brought before a court to be dealt 10
with for the offence and-- 11
(i) the proceeding is discontinued; or 12
(ii) the person is acquitted; or 13
(iii) the person is convicted, but the conviction is afterwards 14
quashed by a court or a free pardon is granted by the 15
Governor; or 16
(iv) the offence is taken into account by a court in sentencing the 17
person for another offence, but the person's conviction of 18
the other offence is quashed; or 19
(v) the offence is taken into account by a court in sentencing the 20
person for another offence, but the court's decision to take 21
the offence into account is quashed by a court; or 22
(vi) for a conviction because a person is acquitted of an offence 23
because of unsoundness of mind, the acquittal because of 24
unsoundness of mind is quashed by a court. 25
108 Meaning of "related" offence 26
An offence is "related" to another offence if both offences consist 27
substantially of the same acts or omissions or form part of the same series 28
of acts or omissions. 29
109 Meaning of "unamenable to justice" 30
(1) A person becomes "unamenable to justice" for an offence only if-- 31
s 110 75 s 111
Criminal Proceeds Confiscation Bill 2002
(a) a proceeding for the offence is started against the person in a way 1
mentioned in subsection (2); and 2
(b) the person is taken to become unamenable to justice under any of 3
sections 110 to 115. 4
(2) For subsection (1), a proceeding for an offence starts when-- 5
(a) a person is charged as defined in section 105;24 or 6
(b) a Magistrates Court charges the person with the offence or 7
commits the person for trial or sentence for the offence; or 8
(c) an indictment is presented against the person for the offence. 9
10
Note--
11
This definition applies to the whole Act. See the dictionary.
110 "Unamenable to justice" if person absconds 12
(1) The person is taken to become unamenable to justice if any of the 13
following decides the person has absconded from the proceeding for the 14
offence-- 15
(a) the Supreme Court; 16
(b) the court to which the person is committed for trial or sentence; 17
(c) the court in which the proceeding is waiting to be heard, or being 18
heard. 19
(2) The person is taken to become unamenable to justice when the court 20
decides the person has absconded or on another day decided by the court. 21
111 "Unamenable to justice" if person dead 22
(1) The person is taken to become unamenable to justice if the person 23
dies before the proceeding for the offence is finally decided. 24
(2) The person is taken to become unamenable to justice when the 25
person dies. 26
24 Section 105 (Meaning of "charge" if complaint made)
s 112 76 s 114
Criminal Proceeds Confiscation Bill 2002
112 "Unamenable to justice" if person not fit for trial 1
(1) The person is taken to become unamenable to justice if-- 2
(a) under the Mental Health Act 2000, chapter 7, part 6,25 the person 3
is found to be not fit for trial on the charge of the offence; and 4
(b) the proceeding for the offence is discontinued because of the 5
finding. 6
(2) The person is taken to become unamenable to justice when the 7
proceeding is discontinued. 8
113 "Unamenable to justice" if warrant issued but not executed 9
(1) The person is taken to become unamenable to justice if-- 10
(a) a warrant is issued for the arrest of the person for the offence, 11
whether because of a complaint and summons or otherwise; and 12
(b) the warrant has not been executed within 6 months after its issue 13
even though all reasonable steps have been taken to execute it. 14
(2) The person is taken to be unamenable to justice at the end of the last 15
day of the 6 months mentioned in subsection (1)(b). 16
(3) In this section-- 17
"arrest" includes apprehension. 18
114 "Unamenable to justice" if no extradition order at end of 19
extradition proceeding 20
(1) The person is taken to become unamenable to justice if-- 21
(a) 6 months after the proceeding for the offence is started the person 22
is unamenable to justice because the person is outside Australia; 23
and 24
(b) an extradition proceeding against the person for the offence has 25
been started; and 26
(c) the extradition proceeding ends without an extradition order 27
being made. 28
25 Mental Health Act 2000, chapter 7 (Examinations, references and orders for persons
charged with offences), part 6 (Inquiries on references to Mental Health Court)
s 115 77 s 116
Criminal Proceeds Confiscation Bill 2002
(2) The person is taken to be unamenable to justice when the extradition 1
proceeding ends. 2
115 "Unamenable to justice" for another reason 3
(1) The person is taken to become unamenable to justice if, 6 months 4
after the proceeding for the offence is started-- 5
(a) the person is unamenable to justice for another reason; and 6
(b) if the person is outside Australia, there is no extradition 7
proceeding pending against the person. 8
(2) The person is taken to be unamenable to justice at the end of the last 9
day of the 6 months mentioned in subsection (1). 10
PART 3--RESTRAINING ORDERS 11
Division 1--Definitions 12
116 Definitions for pt 3 13
In this part-- 14
"prescribed respondent" means a person who-- 15
(a) is about to be, or has been, charged with the confiscation offence 16
to which an application for a restraining order, or a restraining 17
order relates; or 18
(b) has been convicted of the confiscation offence to which an 19
application for a restraining order, or a restraining order relates. 20
"relevant offence" means the confiscation offence or confiscation offences 21
to which an application for a restraining order, or a restraining order, 22
under this part relates. 23
s 117 78 s 118
Criminal Proceeds Confiscation Bill 2002
Division 2--Application for restraining order 1
117 Application for restraining order 2
(1) The State may apply to the Supreme Court for an order ("restraining 3
order") restraining any person from dealing with property stated in the 4
order (the "restrained property") other than in a stated way or in stated 5
circumstances. 6
(2) If the application is made in urgent circumstances or the prescribed 7
respondent is about to be charged with a relevant offence, the application 8
may be made without notice to the prescribed respondent or another person 9
to whom it relates. 10
(3) The application must be supported by an affidavit of a police officer. 11
(4) The application may relate to all or any of the following property-- 12
(a) for property of a prescribed respondent-- 13
(i) stated property; or 14
(ii) a stated class of property; or 15
(iii) all property; or 16
(iv) all property other than stated property; or 17
(v) all or stated property acquired after the restraining order is 18
made; 19
(b) stated property, or a stated class of property, of a stated person, 20
other than a prescribed respondent. 21
(5) The court may refuse to consider the application until the applicant 22
gives the court all the information the court requires about the application 23
in the way the court requires. 24
25
Example--
26
The court may require additional information supporting the application to be given by
27
affidavit or statutory declaration.
118 Affidavit--general requirements 28
The police officer's affidavit must state the following-- 29
(a) the confiscation offence on which the application is based; 30
s 119 79 s 119
Criminal Proceeds Confiscation Bill 2002
(b) if the confiscation offence is not a serious drug offence and the 1
police officer suspects the relevant property is the prescribed 2
respondent's property, the police officer suspects-- 3
(i) the property is tainted property and the reason for the 4
suspicion; or 5
(ii) the prescribed respondent derived a benefit from the 6
commission of the offence and the reason for the suspicion; 7
(c) if the basis of the application is the conviction of the prescribed 8
respondent of the confiscation offence, details of the conviction; 9
(d) if the basis of the application is the fact that the prescribed 10
respondent has been or is about to be charged with the 11
confiscation offence, the police officer suspects the prescribed 12
respondent committed the offence and the reason for the 13
suspicion; 14
(e) details of the property sought to be restrained; 15
(f) the police officer suspects the property sought to be restrained is 16
the property of the person mentioned in the affidavit and the 17
reason for the suspicion. 18
119 Particular requirements for affidavit relating to relevant property 19
that is not prescribed respondent's property 20
(1) This section applies only if a police officer's affidavit relates to 21
property of someone other than the prescribed respondent. 22
(2) This section is in addition to section 118. 23
(3) If the relevant offence is a serious drug offence, the police officer's 24
affidavit must state-- 25
(a) the police officer suspects that the property is tainted property 26
and the reason for the suspicion; or 27
(b) the police officer suspects that the property is under the 28
prescribed respondent's effective control and the reason for the 29
suspicion. 30
(4) If the relevant offence is not a serious drug offence, the police 31
officer's affidavit must state-- 32
(a) the police officer suspects that the property is tainted property 33
and the reason for the suspicion; or 34
s 120 80 s 121
Criminal Proceeds Confiscation Bill 2002
(b) the police officer-- 1
(i) suspects that the property is under the prescribed 2
respondent's effective control; and 3
(ii) suspects that the prescribed respondent derived a benefit 4
from the commission of the offence; and 5
(iii) the reason for the suspicion. 6
120 Notice of application for restraining order 7
(1) The State must give notice of the application to each person whose 8
property is the subject of the application and anyone else the appropriate 9
officer making the application for the State considers has an interest in the 10
property. 11
12
Note--
13
Under the Uniform Civil Procedure Rules 1999, an application filed in a court must be
14
served on each respondent at least 3 business days before the day set for hearing the
15
application.
(2) The Supreme Court may, at any time before finally deciding the 16
application, direct the State to give notice of the application to the persons 17
the court considers appropriate in the way, and within the time, the court 18
considers appropriate. 19
(3) A person whose property is the subject of the application, and anyone 20
else who claims to have an interest in the property, may appear at the 21
hearing of the application. 22
(4) This section does not apply in relation to a person whose property is 23
the subject of the application if the application is made without notice to 24
the person. 25
26
Note--
27
Under section 117(2), an application may be made without notice.
121 Who may be present at hearing of application made without 28
notice 29
(1) This section applies if the State applies for a restraining order 30
without notice to any person to whom it relates. 31
(2) The Supreme Court must hear the application in the absence of 32
anyone other than-- 33
(a) an appropriate officer; or 34
s 122 81 s 122
Criminal Proceeds Confiscation Bill 2002
(b) a police officer; or 1
(c) a commission officer; or 2
(d) an officer of a law enforcement agency of another State or the 3
Commonwealth. 4
(3) Also, the court must hear the application-- 5
(a) in the absence of a person whose property is the subject of the 6
application; and 7
(b) without the relevant person having been informed of the 8
application. 9
Division 3--Making restraining orders and other orders 10
122 Making restraining order 11
(1) The Supreme Court may make a restraining order if, after 12
considering the application and the relevant affidavit, it is satisfied that-- 13
(a) the application relates to a prescribed respondent; and 14
(b) there are reasonable grounds for the suspicions on which the 15
application is based. 16
(2) However, if the confiscation offence is a serious criminal offence, the 17
court must make a restraining order unless the court is satisfied in the 18
particular circumstances it is not in the public interest to make the order. 19
(3) The court may make a restraining order in relation to a prescribed 20
respondent who is about to be charged with a confiscation offence only if 21
the court is satisfied the prescribed respondent will be charged with the 22
confiscation offence or a related offence within the next 48 hours. 23
(4) The court may refuse to make the restraining order if the State fails to 24
give the court the undertakings the court considers appropriate for the 25
payment of damages or costs, or both, in relation to the making and 26
operation of the order. 27
(5) The DPP may give the court the undertakings the court requires. 28
(6) Also, the making of a restraining order does not prevent the person 29
whose property is restrained under the order from giving Legal Aid a 30
charge over the property as a condition of an approval to give legal 31
assistance under the Legal Aid Act in relation to-- 32
s 123 82 s 126
Criminal Proceeds Confiscation Bill 2002
(a) a proceeding under this Act; or 1
(b) a criminal proceeding in which the person is a defendant, 2
including any proceeding on appeal against conviction or 3
sentence. 4
123 Absence of risk does not prevent making of order 5
The Supreme Court may make a restraining order against property 6
whether or not there is a risk of the property being dealt with in a way that 7
would defeat the operation of this Act. 8
124 Conditions of restraining order 9
(1) It is a condition of every restraining order that the person whose 10
property is restrained under the order must preserve the property. 11
(2) The Supreme Court may impose the other conditions the court 12
considers appropriate, including, but not limited to, the following-- 13
(a) a condition about who is to have possession of the property; 14
(b) a condition of a kind mentioned in section 125 or 126. 15
125 Conditions about dealing with property by agreement 16
The Supreme Court may impose a condition authorising the DPP to 17
agree to-- 18
(a) the disposal of the property restrained under the restraining order 19
by its owner to enable the proceeds of the disposal to be applied 20
to satisfy all or part of a debt payable under a pecuniary penalty 21
order or a proceeds assessment order; or 22
(b) the application of the property by its owner to satisfy all or part 23
of a debt payable under a pecuniary penalty order or a proceeds 24
assessment order. 25
126 Conditions about particular payments out of restrained property 26
(1) The Supreme Court may impose a condition providing for all or any 27
of the following to be paid out of the property of a particular person, or a 28
stated part of the person's property, restrained under the restraining order-- 29
s 127 83 s 128
Criminal Proceeds Confiscation Bill 2002
(a) the person's reasonable living expenses and reasonable business 1
expenses; 2
(b) the reasonable living expenses of any of the person's dependants; 3
(c) a stated debt incurred in good faith by the person. 4
(2) Subsection (1) is the only provision of this chapter under which 5
provision may be made for the payment of expenses or a debt mentioned in 6
subsection (1). 7
(3) Also, subsection (1) applies only if the court is satisfied-- 8
(a) the person can not meet the expense or debt out of property that 9
is not restrained under the order; and 10
(b) the property from which the expenses or debt are to be paid is not 11
tainted property. 12
(4) Further, subsection (1) does not authorise the imposition of a 13
condition providing for the payment of a person's legal expenses that are 14
expenses payable because-- 15
(a) the person is a party to a proceeding under this Act; or 16
(b) the person is a defendant in a criminal proceeding, including any 17
proceeding on appeal against a conviction or sentence. 18
127 Restraining order may direct public trustee to take control of 19
property 20
If the Supreme Court considers the circumstances require it, the court 21
may, in a restraining order or a later order, direct the public trustee to take 22
control of some or all of the property restrained under the order. 23
128 Duration of restraining order 24
(1) A restraining order made on an application made without notice to 25
the person to whom it relates is in force for the period, of not more than 26
7 days, stated in the order or, if no period is stated, 7 days after it is made. 27
(2) However, a restraining order made on the basis of the proposed 28
charging of the prescribed respondent with a confiscation offence lapses if 29
the person is not charged with the offence or a related offence within 30
48 hours after the order is made. 31
s 129 84 s 129
Criminal Proceeds Confiscation Bill 2002
(3) Otherwise, a restraining order is in force for the period stated in the 1
order or, if no period is stated, for 1 year after it is made. 2
Division 4--Making other orders 3
129 Supreme Court may make other orders 4
(1) The Supreme Court may make the other orders in relation to a 5
restraining order the court considers appropriate, including, but not limited 6
to, orders mentioned in section 130. 7
(2) However, section 130(h) is the only provision of this chapter under 8
which provision may be made for the payment of legal expenses that are 9
expenses payable because-- 10
(a) the person is a party to a proceeding under this Act; or 11
(b) the person is a defendant in a criminal proceeding, including any 12
proceeding on appeal against a conviction or sentence. 13
(3) The court may make an order under this section-- 14
(a) when making the restraining order or, on application, at a later 15
time; and 16
(b) whether or not it affects a person whose property is restrained 17
under the restraining order. 18
(4) Any of the following may apply for an order under this section-- 19
(a) the State; 20
(b) the prescribed respondent; 21
(c) a person whose property is restrained under the restraining order; 22
(d) if the restraining order directs the public trustee to take control of 23
the restrained property under the restraining order--the public 24
trustee. 25
(5) Also, with the court's leave, a person other than a person mentioned 26
in subsection (4) may apply for an order under this section. 27
(6) The applicant must give notice of the making of the application to 28
each other person who could have applied for an order under this section. 29
s 130 85 s 130
Criminal Proceeds Confiscation Bill 2002
(7) Subsection (6) does not apply to an application for an order under 1
this section made in a proceeding on an application for a restraining order 2
that is made without notice to any person to whom it relates. 3
130 Particular orders Supreme Court may make 4
For section 129, the orders are as follows-- 5
(a) an order varying the property restrained under the restraining 6
order; 7
(b) an order imposing additional conditions on the restraining order 8
or varying a condition of the order; 9
(c) an order ("examination order") requiring a person whose 10
property is restrained under the restraining order or a stated 11
person to attend for examination on oath before the court or a 12
judicial registrar about the following-- 13
(i) the affairs of any person whose property is restrained under 14
the restraining order; 15
(ii) the nature and location of any property of a person whose 16
property is restrained under the restraining order; 17
(iii) the nature and location of any property restrained under the 18
restraining order that the applicant for the order reasonably 19
suspects is tainted property; 20
(d) an order (also an "examination order") requiring the spouse of 21
a person whose property is restrained under the restraining order 22
to attend for examination on oath before the court or a judicial 23
registrar about the spouse's affairs, including the nature and 24
location of property in which the spouse or the person has an 25
interest; 26
(e) an order about the performance of an undertaking for the 27
payment of damages or costs given for the restraining order; 28
(f) an order ("property particulars order") directing either of the 29
following to give the DPP or the public trustee, within a stated 30
time, a sworn statement of particulars of the property, or dealings 31
with the property, in which the owner has or had an interest, as 32
the court considers appropriate-- 33
(i) a person who is or was the owner of restrained property; or 34
s 131 86 s 132
Criminal Proceeds Confiscation Bill 2002
(ii) if the owner of restrained property is or was a 1
corporation--an executive officer of the corporation; 2
(g) if the restraining order directs the public trustee to take control of 3
property-- 4
(i) an order regulating the way the public trustee may perform 5
functions under the restraining order; or 6
(ii) an order deciding any question about the property, including 7
a question affecting the liabilities of the owner of the 8
property or the functions of the public trustee; 9
(h) an order for the payment to Legal Aid from property restrained 10
under the restraining order of expenses payable by the person 11
whose property is restrained because-- 12
(i) the person is a party to a proceeding under this Act; or 13
(ii) the person is a defendant in a criminal proceeding, including 14
any proceeding on appeal against conviction or sentence. 15
Division 5--Provisions about particular orders 16
Subdivision 1--Examination orders 17
131 Judicial registrar's power to conduct examinations 18
(1) A judicial registrar may conduct an examination under an 19
examination order. 20
(2) For those applications, the judicial registrar constitutes, and may 21
exercise all the jurisdiction and powers of, the court. 22
(3) However, a judicial registrar may not exercise any power of the court 23
to punish for contempt. 24
132 Privilege--examination order 25
(1) A person examined under an examination order is not excused from 26
answering a question, or from producing a document or other thing, on the 27
ground that-- 28
s 133 87 s 133
Criminal Proceeds Confiscation Bill 2002
(a) answering the question or producing the document may tend to 1
incriminate the person or make the person liable to a forfeiture or 2
penalty; or 3
(b) producing the document would be in breach of an obligation, 4
whether imposed by an enactment or otherwise, of the person not 5
to disclose the existence or contents of the document; or 6
(c) answering the question or producing the document would 7
disclose information that is the subject of legal professional 8
privilege. 9
(2) A statement or disclosure made by a person in answer to a question 10
asked in an examination under an examination order, or a document or 11
other thing produced in the examination, is not admissible against the 12
person in any civil or criminal proceeding, other than-- 13
(a) a proceeding about the false or misleading nature of the 14
statement or disclosure; or 15
(b) a proceeding on an application under this Act; or 16
(c) a proceeding for the enforcement of a forfeiture order; or 17
(d) for a document or other thing, a proceeding about a right or 18
liability it confers. 19
133 Offence to contravene examination order 20
A person who is required to attend an examination under an examination 21
order under this part must not-- 22
(a) fail to attend as required by the order, unless the person has a 23
reasonable excuse; or 24
(b) fail to attend from day to day until the conclusion of the 25
examination, unless the person has a reasonable excuse; or 26
(c) fail to take an oath for the purpose of the examination; or 27
(d) fail to answer a question that the person is directed to answer by 28
the court or judicial registrar; or 29
(e) make a statement in the examination that is false or misleading in 30
a material particular. 31
Maximum penalty--100 penalty units or 2 years imprisonment. 32
s 134 88 s 135
Criminal Proceeds Confiscation Bill 2002
Subdivision 2--Property particulars orders 1
134 Privilege--property particulars order 2
(1) A person directed under a property particulars order to give a 3
statement to the DPP or the public trustee is not excused from giving the 4
statement or including particulars in the statement on the ground that the 5
statement or particulars may tend to incriminate the person or make the 6
person liable to a forfeiture or penalty. 7
(2) If a person gives a statement to the DPP or the public trustee under a 8
property particulars order, the statement is not admissible against the 9
person in any criminal proceeding other than a proceeding about the false 10
or misleading nature of the statement. 11
Division 6--Notice of restraining orders 12
135 Notice of restraining order 13
(1) This section applies if the Supreme Court-- 14
(a) makes a restraining order; or 15
(b) makes another order under division 4 in relation to a restraining
26
16
order. 17
(2) As soon as practicable after the order is made, the DPP must give 18
each person whose property is restrained under the order and anyone else 19
who is affected by the order a copy of the order. 20
(3) If the order directs the public trustee to take control of property, the 21
DPP must give the public trustee a copy of the order. 22
(4) The DPP must give the commissioner of the police service a copy of 23
the order. 24
(5) A restraining order, or another order under division 4, does not stop 25
having effect only because a person required to be served under 26
subsection (2) has not been served with a copy of the order. 27
26 Division 3 (Making other orders)
s 136 89 s 137
Criminal Proceeds Confiscation Bill 2002
Division 7--Extension and setting aside of restraining orders 1
136 Extension of restraining order 2
(1) On the application of the State, the Supreme Court may extend the 3
period for which a restraining order is to remain in force. 4
(2) The State must give notice of the application to-- 5
(a) the prescribed respondent; and 6
(b) anyone else whose property is restrained under the restraining 7
order; and 8
(c) anyone else the applicant considers may have an interest in the 9
restrained property. 10
(3) A person given or entitled to be given notice under subsection (2) 11
may appear at the hearing of the application. 12
137 Restraining order may be set side 13
(1) On the application of a person mentioned in subsection (2), the 14
Supreme Court may make an order setting aside the restraining order. 15
(2) The application may be made by-- 16
(a) the State; or 17
(b) the prescribed respondent; or 18
(c) a person whose property is restrained under the restraining order 19
or who has an interest in the restrained property. 20
(3) The applicant must give notice of the application to the DPP and 21
anyone else the applicant considers has an interest in the restrained 22
property. 23
(4) A person given or entitled to be given notice under subsection (3) 24
may appear at the hearing of the application. 25
(5) Without limiting subsection (1), the court may set aside a restraining 26
order on the application of a prescribed respondent if the prescribed 27
respondent-- 28
(a) gives security acceptable to the court for payment to satisfy any 29
pecuniary penalty order that may be made against the prescribed 30
s 138 90 s 138
Criminal Proceeds Confiscation Bill 2002
respondent on the prescribed respondent's conviction for the 1
offence; or 2
(b) gives undertakings satisfactory to the court about the prescribed 3
respondent's property. 4
Division 8--Sale of restrained property 5
138 Supreme Court may order sale of restrained property 6
(1) This section applies to restrained property under a restraining order 7
only if the State applies to a court for a forfeiture order for the property and 8
the application has not been decided. 9
(2) The State may, when applying for the forfeiture order or at a later 10
time, apply to the Supreme Court for an order directing the public trustee to 11
sell all or part of the restrained property ("application property"). 12
13
Note--
14
The forfeiture order application may have been made in another court because the
15
prescribed respondent was convicted before that court.
(3) The State must give notice of the application to each person who has 16
an interest in the application property. 17
(4) The Supreme Court may make the order if the court is satisfied, on 18
evidence of the public trustee or otherwise-- 19
(a) the application property may deteriorate or lose value before the 20
forfeiture order application is decided; or 21
(b) the cost of controlling the application property would be more 22
than the value of the property if it were disposed of after a 23
forfeiture order was made. 24
(5) The proceeds of a sale under an order under this section are taken to 25
be restrained under the restraining order applying to the application 26
property. 27
s 139 91 s 140
Criminal Proceeds Confiscation Bill 2002
Division 9--Exclusion of particular property from restraining order 1
139 Supreme Court may exclude prescribed respondent's property 2
from restraining order 3
(1) A prescribed respondent whose property is restrained under a 4
restraining order may apply to the court to amend the restraining order to 5
exclude particular property of the prescribed respondent from the order. 6
(2) The court may exclude the prescribed respondent's property from the 7
order if it is satisfied-- 8
(a) the property is not tainted property; and 9
(b) the relevant offence is not a serious criminal offence; and 10
(c) a pecuniary penalty order can not be made against the prescribed 11
respondent. 12
(3) Also, the court may exclude the prescribed respondent's property 13
from the order if it is satisfied it is in the public interest to amend the order 14
having regard to all the circumstances, including-- 15
(a) a financial hardship or other result of the property remaining 16
restrained under the order; and 17
(b) the seriousness of the offence; and 18
(c) the likelihood that the interest will be-- 19
(i) liable to forfeiture under a forfeiture order; or 20
(ii) automatically forfeited; or 21
(iii) required to satisfy a pecuniary penalty order. 22
140 Supreme Court may exclude other property from restraining 23
order 24
(1) A person, other than the prescribed respondent (the "applicant"), 25
whose property is restrained under a restraining order may apply to the 26
Supreme Court to amend the order to exclude the applicant's property from 27
the order. 28
(2) If the restraining order was made in relation to a serious criminal 29
offence, the Supreme Court may exclude the applicant's property from the 30
order if the court is satisfied-- 31
s 140 92 s 140
Criminal Proceeds Confiscation Bill 2002
(a) the property is not tainted property; and 1
(b) the property is not under the prescribed respondent's effective 2
control; and 3
(c) the applicant was not in any way involved in the commission of 4
the offence. 5
(3) If the restraining order was made in relation to an offence that is not a 6
serious criminal offence, the Supreme Court may exclude the applicant's 7
property from the order if the court is satisfied-- 8
(a) the interest is not tainted property; and 9
(b) either-- 10
(i) the applicant's property is not under the prescribed 11
respondent's effective control; or 12
(ii) a pecuniary penalty order can not be made against the 13
prescribed respondent. 14
(4) Also, the Supreme Court may exclude the applicant's property from 15
the restraining order if the court is satisfied-- 16
(a) the applicant was not, in any way, involved in the commission of 17
the offence; and 18
(b) if the applicant acquired the property at the time of or after the 19
commission, or alleged commission, of the offence, the applicant 20
acquired the property-- 21
(i) in good faith and for sufficient consideration; and 22
(ii) without knowing, and in circumstances not likely to arouse 23
a reasonable suspicion, that the property was tainted 24
property in relation to the offence. 25
(5) In addition, the Supreme Court may exclude the applicant's property 26
from the order if the court is satisfied it is in the public interest to amend 27
the order having regard to all the circumstances, including-- 28
(a) a financial hardship or other result of the property remaining 29
restrained under the order; and 30
(b) the seriousness of the offence; and 31
(c) the likelihood that the interest will be-- 32
(i) liable to forfeiture under a forfeiture order; or 33
s 141 93 s 142
Criminal Proceeds Confiscation Bill 2002
(ii) automatically forfeited; or 1
(iii) required to satisfy a pecuniary penalty order. 2
141 Supreme Court may declare restrained property is not subject to 3
automatic forfeiture 4
(1) This section applies only if the confiscation offence a prescribed 5
respondent has been charged with, is about to be charged with, or has been 6
convicted of, is a serious criminal offence. 7
(2) If the prescribed respondent has an interest in property restrained 8
under a restraining order, the prescribed respondent may apply to the 9
Supreme Court for a declaration that the property is not subject to 10
automatic forfeiture. 11
(3) The court may make the declaration sought if it is satisfied-- 12
(a) the property was not used in, or in connection with, any illegal 13
activity and was not derived by a person from illegal activity; and 14
(b) the prescribed respondent's interest in the property was lawfully 15
acquired. 16
Division 10--Other provisions about restraining orders 17
142 Restraining order to be registered 18
(1) This section applies if a restraining order applies to property of a 19
particular kind and a law, whether or not a law of the State, provides for the 20
registration of title to, an interest in, or a charge over, property of that kind. 21
(2) On the application of the DPP, the authority responsible for 22
administering the law must record the particulars of the relevant restraining 23
order in the register kept under the law. 24
(3) Subsection (2) applies even though a relevant document of title is not 25
produced to a registrar or any other person. 26
(4) Unless the contrary is proved, a person who deals with property 27
affected by a registered restraining order is taken to know of the restraining 28
order. 29
s 143 94 s 145
Criminal Proceeds Confiscation Bill 2002
(5) If the Land Title Act 1994 applies to the property, the DPP may lodge, 1
and the registrar of titles must register, a caveat over the property under that 2
Act. 3
(6) As soon as practicable after the relevant restraining order stops 4
having effect in relation to the property-- 5
(a) the DPP must apply for cancellation of the record of the order; 6
and 7
(b) the authority responsible for administering the relevant law must 8
take the steps necessary to cancel the record. 9
(7) Also, if the DPP lodged a caveat over the property under 10
subsection (5), as soon as practicable after the relevant restraining order 11
stops having effect in relation to the property, the DPP must withdraw the 12
caveat. 13
143 Contravention of restraining order 14
(1) A person who conceals restrained property or does another act or 15
makes another omission in relation to restrained property with the intention 16
of directly or indirectly defeating the operation of the restraining order 17
commits a crime. 18
Maximum penalty--350 penalty units or 7 years imprisonment. 19
(2) It is a defence to a charge of an offence against subsection (1) for the 20
person to prove that the person had no notice that the property was 21
restrained under a restraining order and no reason to suspect it was. 22
(3) A dealing with property in contravention of subsection (1) is void 23
unless it was either for sufficient consideration or in favour of a person who 24
acted in good faith. 25
144 Restraining order does not prevent other action under this Act 26
A restraining order does not prevent the enforcement of any other order 27
made under this Act against restrained property under a restraining order. 28
145 Authority under restraining order 29
A restraining order is sufficient authority for a person to whom the order 30
is directed to take all steps necessary or desirable to give effect to the order. 31
s 146 95 s 147
Criminal Proceeds Confiscation Bill 2002
PART 4--FORFEITURE ORDERS 1
Division 1--Applications for forfeiture orders 2
146 Application for forfeiture order 3
(1) This section applies if a person is convicted of a confiscation offence. 4
(2) The State may apply to the Supreme Court or the court before which 5
the person is convicted for an order ("forfeiture order") forfeiting 6
particular property to the State. 7
(3) The application may include particulars of any encumbrance over the 8
restrained property that an appropriate officer considers an encumbrancee 9
took in good faith, for valuable consideration, and in the ordinary course of 10
the encumbrancee's business. 11
(4) Unless the court gives leave, the application must be made within 12
6 months after the day the person is treated as if convicted of the offence 13
because of section 106.27 14
(5) If the application has been finally decided on the merits, the State 15
may apply to a court under subsection (2) for a further forfeiture order 16
against property relying on a person's conviction of the confiscation 17
offence to which the previous application relates only with the Supreme 18
Court's leave. 19
(6) The Supreme Court may give leave under subsection (5) only if it is 20
satisfied-- 21
(a) the property to which the new application relates was identified 22
only after the first application was finally decided; or 23
(b) necessary evidence became available only after the first 24
application was finally decided; or 25
(c) it is otherwise in the interests of justice to give the leave. 26
147 Notice of application 27
(1) The State must give written notice of the application for the forfeiture 28
order to the person whose conviction is the basis for the application and 29
27 Section 106 (Meaning of "convicted" of offence)
s 148 96 s 148
Criminal Proceeds Confiscation Bill 2002
anyone else the appropriate officer making the application for the State 1
considers has an interest in the property to which the application relates. 2
(2) A person given notice under subsection (1) may appear at the hearing 3
of the application. 4
(3) Anyone else who claims an interest in the property may also appear 5
at the hearing of the application. 6
(4) The absence of a person given notice under subsection (1) does not 7
prevent the court from making a forfeiture order. 8
Division 2--Making and effect of forfeiture orders 9
148 Amendment of application 10
(1) A court hearing an application for a forfeiture order may amend the 11
application at the request, or with the agreement, of the State. 12
(2) If the State applies for an amendment of an application for a 13
forfeiture order and the proposed amendment would have the effect of 14
including additional property in the application for the forfeiture order, the 15
State must give written notice of the application for the amendment to-- 16
(a) the person whose conviction is the basis for the application for 17
the forfeiture order; and 18
(b) anyone else the appropriate officer making the application for the 19
State considers may have an interest in property proposed to be 20
included in the application for the forfeiture order. 21
(3) A person given notice under subsection (2) and anyone else who 22
claims to have an interest in the additional property may appear at the 23
hearing of the application to amend. 24
(4) The court may amend an application under this section to include 25
additional property in the application only if the court is satisfied-- 26
(a) the property was not reasonably capable of identification when 27
the application was originally made; or 28
(b) necessary evidence became available only after the application 29
was originally made. 30
s 149 97 s 150
Criminal Proceeds Confiscation Bill 2002
149 Procedure on application 1
(1) In deciding an application for a forfeiture order, the court must have 2
regard to the evidence given in any proceeding against the person for the 3
confiscation offence on which the application is based. 4
(2) If-- 5
(a) the application is made to the court before which the person is 6
convicted; and 7
(b) when the application is made, the court has not passed sentence 8
on the person for the confiscation offence; 9
the court may defer passing sentence until it has decided the application. 10
(3) If a person is treated as if convicted under section 10628 because the 11
offence is taken into account in sentencing the person for another offence, 12
the reference in subsection (1) to a proceeding against the person for the 13
offence includes a reference to the proceeding for the other offence. 14
150 Limitation on powers of Magistrates Courts 15
(1) A Magistrates Court may make a forfeiture order because of a 16
conviction for an offence only if it is satisfied the total value of the 17
property to be forfeited under the order and all other property forfeited 18
under other undischarged forfeiture orders made by the court because of 19
the conviction is not more than the limit of a Magistrates Court's civil 20
jurisdiction. 21
(2) A Magistrates Court may make a forfeiture order for real property 22
only as permitted under a regulation. 23
(3) For this section, the value of property is its value as decided by the 24
court. 25
(4) In this section-- 26
"Magistrates Court", other than in relation to the limit of the court's civil 27
jurisdiction, includes the Childrens Court constituted by a magistrate. 28
28 Section 106 (Meaning of "convicted" of offence)
s 151 98 s 152
Criminal Proceeds Confiscation Bill 2002
151 Making forfeiture order 1
(1) The court may make a forfeiture order in relation to particular 2
property if-- 3
(a) a person is convicted of a confiscation offence; and 4
(b) the conviction is the basis for the application for the forfeiture 5
order against the property; and 6
(c) the court is satisfied the property, or an interest in the property, is 7
tainted property; and 8
(d) the court, having regard to subsection (2), considers it 9
appropriate to make the order. 10
(2) For subsection (1)(d), the court may have regard to-- 11
(a) any hardship that may reasonably be expected to be caused to 12
anyone by the order; and 13
(b) the use that is ordinarily made, or was intended to be made, of 14
the property; and 15
(c) the seriousness of the offence concerned; and 16
(d) anything else the court considers appropriate. 17
(3) The court must presume that particular property is tainted property 18
if-- 19
(a) at the hearing of the application, evidence is presented that the 20
property was in the person's possession at the time of, or 21
immediately after, the commission of the offence concerned; and 22
(b) no evidence is presented tending to show that the property is not 23
tainted property. 24
152 Forfeiture order may provide for discharge of encumbrance 25
(1) If-- 26
(a) the court is satisfied an encumbrancee took an encumbrance over 27
property to be forfeited under a forfeiture order in good faith, for 28
valuable consideration, and in the ordinary course of the 29
encumbrancee's business; and 30
(b) the State gives an undertaking to apply the proceeds of disposing 31
of the forfeited property towards discharging the encumbrance; 32
s 153 99 s 154
Criminal Proceeds Confiscation Bill 2002
the court may make the orders about the encumbrance the court considers 1
appropriate. 2
(2) The DPP may give the undertaking for the State. 3
153 Effect of forfeiture 4
(1) On the making of a forfeiture order, the property the subject of the 5
order-- 6
(a) is forfeited to the State; and 7
(b) vests absolutely in the State. 8
9
Note--
10
Under section 213, the State may not dispose of forfeited property during the appeal
11
period as defined in that section.29
(2) Subsection (1)(b) is subject to the provisions of this Act under which 12
the Supreme Court may make orders about the property vested or to be 13
vested in the State. 14
(3) The court that makes the forfeiture order may give any necessary or 15
convenient directions for giving effect to the forfeiture. 16
17
Example--
18
If the person forfeiting the property is in possession of the forfeited property, the court
19
may give directions about who is to have possession of the property.
Division 3--Orders releasing or excluding property from effect of 20
particular orders 21
154 Order for release of property from forfeiture order 22
(1) A court that makes a forfeiture order may make an order under this 23
section ("release order") that a stated interest in property of a stated 24
person that has been forfeited under a forfeiture order may be released 25
from the forfeiture order on payment to the State of the amount the court 26
decides is the value of the interest. 27
(2) The order must state the nature, extent and value, when the order is 28
made, of the person's interest in the forfeited property. 29
29 Section 213 (Forfeited property not to be disposed of during appeal period)
s 155 100 s 156
Criminal Proceeds Confiscation Bill 2002
(3) The court may make the order only if it is satisfied-- 1
(a) the interest is still vested in the State; and 2
(b) it would not be against the public interest for the interest to be 3
transferred to the person; and 4
(c) there is no other reason the interest should not be transferred to 5
the person. 6
155 Exclusion of property from forfeiture order application 7
(1) A person, other than a person whose conviction is the basis for the 8
application for the forfeiture order, who claims an interest in property 9
included in an application for a forfeiture order may apply to the court to 10
which the application for the forfeiture order is made for an order under 11
section 158 (an "innocent interest exclusion order"). 12
(2) The applicant must give the DPP notice of the making of the 13
application. 14
(3) The State must be a party to the application represented by the DPP. 15
156 Exclusion of property from forfeiture order 16
(1) A person, other than a person whose conviction is the basis for the 17
application for the forfeiture order or the forfeiture order, who claims an 18
interest in property forfeited under a forfeiture order may apply to the court 19
that made the forfeiture order for an innocent interest exclusion order. 20
(2) Unless the court gives leave under section 157-- 21
(a) the application must be made before the end of the 6 months 22
starting on the day the forfeiture order was made; and 23
(b) the following persons can not apply under this section for an 24
innocent interest exclusion order-- 25
(i) a person who was given notice of the application for the 26
forfeiture order; 27
(ii) a person who appeared at the hearing of the application for 28
the forfeiture order. 29
(3) The applicant must give the DPP notice of the making of the 30
application, including an application for leave. 31
(4) The State must be a party to the application represented by the DPP. 32
s 157 101 s 159
Criminal Proceeds Confiscation Bill 2002
157 When court may give leave for s 156 1
(1) The court may give leave to apply for an innocent interest exclusion 2
order after the end of the 6 months mentioned in section 156(2)(a) if it is 3
satisfied the delay in applying was not because of the applicant's neglect. 4
(2) Also, the court may give a person mentioned in section 156(2)(b) 5
leave to apply for an innocent interest exclusion order only if it is satisfied 6
there are special grounds, including, for example-- 7
(a) for a good reason, the person did not attend the hearing of the 8
application for the forfeiture order even though the person had 9
notice of it; or 10
(b) particular evidence proposed to be presented by the person in the 11
application was not available to the person when the application 12
for the forfeiture order was heard. 13
158 Making of innocent interest exclusion order 14
The court must, and may only, make an innocent interest exclusion order 15
if it is satisfied-- 16
(a) the applicant has or, apart from the forfeiture, would have, an 17
interest in the property; and 18
(b) the applicant was not, in any way, involved in the commission of 19
a relevant confiscation offence; and 20
(c) the applicant acquired the interest-- 21
(i) in good faith and for sufficient consideration; and 22
(ii) if the applicant acquired the interest at the time of or after 23
the commission of the relevant confiscation 24
offence--without knowing, and in circumstances not likely 25
to arouse a reasonable suspicion, that the property was 26
tainted property. 27
159 What innocent interest exclusion order must state 28
(1) An innocent interest exclusion order must-- 29
(a) state the nature, extent and, if necessary for the order, the value 30
when the order is made, of the applicant's interest in the 31
property; and 32
s 160 102 s 161
Criminal Proceeds Confiscation Bill 2002
(b) if the application for the forfeiture order has not been decided, 1
exclude the applicant's property from the operation of any 2
restraining order applying to the property and the application for 3
the forfeiture order. 4
(2) If the applicant's property has been forfeited to the State and is still 5
vested in the State, the order must also direct the State to transfer the 6
property to the applicant. 7
(3) If the applicant's property has been forfeited to the State and is no 8
longer vested in the State, the order must also direct the State to pay to the 9
applicant the value of the applicant's property. 10
Division 4--Discharge of forfeiture orders 11
160 Discharge of forfeiture order 12
A forfeiture order is discharged if any of the following happens-- 13
(a) the conviction because of which the order was made is quashed; 14
(b) a payment is made under a release order in relation to all of the 15
interests in forfeited property; 16
(c) the order is set aside under section 177;30 17
(d) the order is discharged on appeal. 18
PART 5--AUTOMATIC FORFEITURE 19
161 Definitions for pt 5 20
In this part-- 21
"forfeiture period", for a prescribed respondent, means the later of-- 22
(a) a period of 6 months starting on the day of the prescribed 23
respondent's conviction of a serious criminal offence; or 24
30 Section 177 (Rehearing)
s 162 103 s 163
Criminal Proceeds Confiscation Bill 2002
(b) the 6 months mentioned in paragraph (a) as extended under 1
section 163; or 2
(c) if the prescribed respondent appeals against the conviction and 3
the appeal is not decided within the 6 months after conviction, 4
the period ending when the appeal is finally decided. 5
"prescribed respondent" means a person who is treated as if convicted of 6
a serious criminal offence, other than because the person is 7
unamenable to justice. 8
162 Application of pt 5 9
This part applies if-- 10
(a) a restraining order is, or was, granted for property, whether the 11
property of a prescribed respondent or someone else, because 12
of-- 13
(i) the prescribed respondent's conviction of the serious 14
criminal offence; or 15
(ii) the charging, or proposed charging, of the prescribed 16
respondent with the serious criminal offence or a related 17
serious criminal offence; and 18
(b) the Supreme Court has not made an order declaring that the 19
property is not subject to automatic forfeiture;31 and 20
(c) the restraining order is still in force when the forfeiture period 21
ends. 22
163 Automatic forfeiture of restrained property 23
(1) Property of the prescribed respondent that was acquired after the day 24
that is 6 years before the commission of the serious criminal offence and is 25
restrained under the relevant restraining order is forfeited to the State when 26
the forfeiture period ends. 27
(2) Property of another person that is restrained under the relevant 28
restraining order is forfeited to the State when the forfeiture period ends. 29
31 See section 141 (Supreme Court may declare restrained property is not subject to
automatic forfeiture)
s 164 104 s 165
Criminal Proceeds Confiscation Bill 2002
(3) The 6 years mentioned in subsection (1) includes periods before and 1
after the commencement of this section. 2
(4) However, before the end of the first 6 months of the forfeiture period, 3
the prescribed respondent may apply to the Supreme Court for an extension 4
of the forfeiture period for up to 3 months. 5
(5) The Supreme Court may extend the forfeiture period by not more 6
than 3 months if it is satisfied it is in the interests of the administration of 7
justice to extend the period in the special circumstances of the case. 8
164 Effect of automatic forfeiture 9
(1) Property automatically forfeited under this part vests absolutely in 10
the State on its forfeiture to the State. 11
(2) On application, the Supreme Court may give any necessary or 12
convenient directions for giving effect to the forfeiture. 13
165 Third party protection from automatic forfeiture 14
(1) A person, other than the prescribed respondent, who claims an 15
interest in the property may apply to the Supreme Court for an order under 16
section 167 (a "third party order") or an order under section 169 (a 17
"buy-back order". 18
(2) Unless the court gives leave under section 166-- 19
(a) the application must be made within 6 months after the property 20
is forfeited to the State; and 21
(b) the following can not apply to the court for a third party order or 22
a buy-back order-- 23
(i) a person who was given notice of the application for the 24
relevant restraining order; 25
(ii) a person who appeared at the hearing of the application for 26
the relevant restraining order; 27
(iii) a person who was given notice of the relevant restraining 28
order.32 29
32 Sections 139, 140 and 141 also provide rights to apply to the Supreme Court to
exclude property from the effects of a restraining order.
s 166 105 s 167
Criminal Proceeds Confiscation Bill 2002
(3) The applicant must give the DPP notice of the making of an 1
application under this section, including an application for leave to apply 2
for a third party order or a buy-back order. 3
(4) The State must be a party to the application represented by the DPP. 4
166 When Supreme Court may give leave for s 165 5
(1) The Supreme Court may give leave to apply for a third party order or 6
a buy-back order after the end of the 6 months mentioned in 7
section 165(2)(a) if it is satisfied the delay in applying was not because of 8
the applicant's neglect. 9
(2) Also, the Supreme Court may give leave for a person mentioned in 10
section 165(2)(b) to apply for a third party order or a buy-back order only if 11
it considers the failure of the applicant to apply, or apply successfully, to 12
have the property excluded from the relevant restraining order was not 13
because of the applicant's neglect. 14
(3) In this section-- 15
"relevant restraining order", for property automatically forfeited, means 16
the restraining order made in relation to the forfeited property. 17
167 When Supreme Court may make third party order 18
(1) The Supreme Court may make a third party order if it is satisfied-- 19
(a) the applicant, apart from the forfeiture, would have an interest in 20
the property; and 21
(b) the applicant was not, in any way, involved in the commission of 22
the relevant serious criminal offence; and 23
(c) the applicant acquired the interest-- 24
(i) in good faith and for sufficient consideration; and 25
(ii) if the applicant acquired the interest at the time of or after 26
the commission of the relevant serious criminal 27
offence--without knowing, and in circumstances not likely 28
to arouse a reasonable suspicion, that the property was 29
tainted property; and 30
(d) the applicant's interest in the property was not under the 31
prescribed respondent's effective control before it was forfeited. 32
s 168 106 s 170
Criminal Proceeds Confiscation Bill 2002
(2) Also, the Supreme Court may make a third party order if it is 1
satisfied-- 2
(a) the applicant, apart from the forfeiture, would have an interest in 3
the property; and 4
(b) the property was not used in, or in connection with, any illegal 5
activity and was not derived by anyone from any illegal activity; 6
and 7
(c) the applicant's interest in the property was lawfully acquired. 8
168 What third party order must state 9
(1) A third party order must state the nature, extent and, if necessary for 10
the order, the value, when the order is made, of the applicant's interest in 11
the property. 12
(2) If the relevant property is still vested in the State, the order must also 13
direct the State to transfer the property to the applicant. 14
(3) If the relevant property is no longer vested in the State, the order 15
must also direct the State to pay to the applicant the value of the applicant's 16
property. 17
169 When Supreme Court may make buy-back order 18
The Supreme Court may make a buy-back order if it is satisfied-- 19
(a) the applicant, apart from the forfeiture, would have an interest in 20
the property; and 21
(b) it would not be against the public interest for the relevant interest 22
in the property to be transferred to the applicant; and 23
(c) there is no other reason why the interest should not be transferred 24
to the applicant. 25
170 What buy-back order must state 26
A buy-back order must state-- 27
(a) the nature, extent and value, when the order is made, of the 28
interest; and 29
(b) that the person may buy back the interest by paying to the State 30
the amount stated as the value of the interest. 31
s 171 107 s 172
Criminal Proceeds Confiscation Bill 2002
PART 6--OTHER PROVISIONS ABOUT FORFEITURE 1
171 Dealing with forfeited property prohibited 2
(1) A person who conceals property that is the subject of a forfeiture 3
order or does another act or makes another omission in relation to property 4
that is the subject of a forfeiture order with the intention of directly or 5
indirectly defeating the operation of the forfeiture order commits a crime. 6
Maximum penalty--350 penalty units or 7 years imprisonment. 7
(2) It is a defence to a charge of an offence against subsection (1) for the 8
person to prove that the person had no notice that the property was the 9
subject of a forfeiture order and no reason to suspect it was. 10
(3) A dealing with property in contravention of this subsection (1) is void 11
unless it was either for sufficient consideration or in favour of a person who 12
acted in good faith. 13
172 Effect of payment under buy-back order or release order 14
(1) On the payment to the State of the amount stated in a buy-back order 15
as the value of an interest in forfeited property, the effect of the forfeiture 16
of the interest ends. 17
(2) On the payment to the State of the amount stated in a release order as 18
the value of an interest in forfeited property, the forfeiture order applying 19
to the interest ceases to apply to the interest. 20
(3) Subsections (1) and (2) have effect only if the payment is made while 21
the interest is still vested in the State. 22
(4) As soon as practicable after the amount mentioned in the buy-back 23
order or release order is paid, the Attorney-General must arrange for the 24
interest to be transferred to the person in whom it was vested immediately 25
before it was forfeited to the State. 26
(5) The Attorney-General may do or authorise the doing of anything 27
necessary or convenient to be done for the transfer. 28
s 173 108 s 174
Criminal Proceeds Confiscation Bill 2002
173 Buying out other interests under court order 1
(1) This section applies if-- 2
(a) property that is forfeited to the State under a forfeiture order or 3
on automatic forfeiture is still vested in the State; and 4
(b) the property or an interest in the property is required to be 5
transferred to a person (the "buyer") under an innocent interest 6
exclusion order or a third party order or under section 172 or 7
175;33 and 8
(c) the buyer's interest in the property, immediately before the 9
forfeiture, was not the only interest in the property. 10
(2) If the buyer intends to buy the other interests in the property, the 11
buyer must give written notice to any other person who had an interest in 12
the property immediately before the forfeiture stating-- 13
(a) the buyer intends to buy the other interests from the State; and 14
(b) within 21 days after receiving the notice, the person may give the 15
Attorney-General a written objection to the sale of the person's 16
interest to the buyer. 17
(3) If-- 18
(a) a person given a notice under subsection (2) does not give the 19
Attorney-General a written objection to the sale of the interest to 20
the buyer within the 21 days; and 21
(b) the buyer pays to the State an amount equal to the value of the 22
interest; 23
the Attorney-General must arrange for the interest to be transferred to the 24
buyer. 25
(4) The Attorney-General may do, or authorise the doing of, anything 26
necessary or convenient to be done for the transfer. 27
174 Notice after conviction quashed or forfeiture order discharged 28
(1) This section applies if a relevant event happens. 29
33 Sections 172 (Effect of payment under buy-back order or release order) and 175 (If
Attorney-General asked to return property)
s 175 109 s 175
Criminal Proceeds Confiscation Bill 2002
(2) As soon as practicable after a relevant event happens, the DPP must 1
give notice of the happening of the relevant event to each person the DPP 2
considers may have had an interest in the property to which it relates 3
immediately before it was vested in the State. 4
(3) If required by a court, the DPP must also give notice of the 5
happening of the relevant event to the persons the court considers 6
appropriate, in the way and within the time the court considers appropriate. 7
(4) If the property is still vested in the State, the notice must include a 8
statement to the effect that a person who had an interest in the property 9
immediately before the property was vested in the State may, by written 10
notice given to the Attorney-General, ask for the return of the property. 11
(5) If the property is no longer vested in the State, the notice must 12
include a statement to the effect that a person who had an interest in the 13
property immediately before the property was vested in the State may 14
apply for an order declaring the value of the property-- 15
(a) if the property was forfeited under a forfeiture order--to the 16
court that made the forfeiture order; or 17
(b) if the property was automatically forfeited--to the court that 18
made the restraining order applying to the property. 19
(6) In this section-- 20
"relevant event" means-- 21
(a) for property forfeited to the State under a forfeiture order-- 22
(i) the discharge of the forfeiture order on appeal under 23
section 263;34 or 24
(ii) the quashing of the conviction on which the forfeiture order 25
was based; or 26
(b) for automatically forfeited property--the quashing of the 27
conviction because of which the property was automatically 28
forfeited. 29
175 If Attorney-General asked to return property 30
(1) This section applies if a person is given a notice under section 174 31
relating to property that is still vested in the State. 32
34 Section 263 (Appeals)
s 176 110 s 176
Criminal Proceeds Confiscation Bill 2002
(2) The person may, in writing, ask the Attorney-General to return the 1
property to the person. 2
(3) As soon as practicable after receiving the notice, the 3
Attorney-General must arrange for the property to be transferred to the 4
applicant or someone else nominated by the applicant. 5
(4) However, if the State has paid an amount to the person in relation to 6
the property under an innocent interest exclusion order or a third party 7
order, the Attorney-General must not arrange for the transfer of the 8
property until the person pays to the State the total amount paid by the 9
State in relation to the property under the relevant order. 10
(5) The Attorney-General may do or authorise the doing of anything 11
necessary or convenient to be done for the transfer. 12
176 If application for order declaring value of property 13
(1) This section applies if a person is given a notice under section 174 14
relating to property that is no longer vested in the State. 15
(2) The person may apply for an order declaring the value of forfeited 16
property-- 17
(a) if the property was forfeited under a forfeiture order--to the 18
court that made the forfeiture order; or 19
(b) if the property was automatically forfeited--to the court that 20
made the restraining order applying to the property. 21
(3) The court must make an order declaring the value, at the time of the 22
declaration, of the property. 23
(4) The court may make the other orders the court consider appropriate. 24
(5) After the court makes the order, the applicant for the order may, by 25
written application to the Attorney-General, ask for payment of the amount 26
declared by the order to be the value of the property. 27
(6) The Attorney-General must arrange for payment to the applicant, or 28
someone else nominated by the applicant, of the amount declared by the 29
order less the total amount paid by the State for the relevant property 30
because of an innocent interest exclusion order or a third party order. 31
s 177 111 s 178
Criminal Proceeds Confiscation Bill 2002
177 Rehearing 1
(1) This section applies if a forfeiture order has been made against a 2
person who was charged with a confiscation offence on the ground that the 3
person is treated as having been convicted of the offence because the 4
person has become unamenable to justice for the offence. 5
(2) The person or the State may apply to the court that made the 6
forfeiture order to have the order set aside. 7
(3) If the applicant is not the State, the applicant must give notice of the 8
application to the Attorney-General. 9
(4) The Attorney-General may appear to oppose the grant of the 10
application. 11
(5) The court may set aside the forfeiture order on the conditions about 12
costs or otherwise the court considers appropriate. 13
(6) If the court sets aside the order, the court may rehear the application 14
for the forfeiture order immediately or at a later time fixed by the court. 15
PART 7--PECUNIARY PENALTY ORDERS 16
Division 1--Application for pecuniary penalty order 17
178 Pecuniary penalty order application 18
(1) If a person is convicted of a confiscation offence, the State may apply 19
to the Supreme Court or the court before which the person is convicted for 20
an order ("pecuniary penalty order") requiring the person to pay to the 21
State the amount of the benefits derived from the commission of the 22
confiscation offence. 23
(2) Unless the court gives leave, the application must be made within 24
6 months after the day the person is treated as if convicted of the offence 25
because of section 106.35 26
(3) The State may apply to a court for a further pecuniary penalty order 27
for the benefits derived by the person from the commission of a 28
35 Section 106 (Meaning of "convicted" of offence)
s 179 112 s 181
Criminal Proceeds Confiscation Bill 2002
confiscation offence to which an application for an earlier pecuniary 1
penalty order relates ("first application") only with the Supreme Court's 2
leave. 3
(4) The Supreme Court may give leave under subsection (3) only if it is 4
satisfied-- 5
(a) the benefit to which the new application relates was identified 6
only after the first application was finally decided; or 7
(b) necessary evidence became available only after the first 8
application was finally decided; or 9
(c) it is otherwise in the interests of justice to give the leave. 10
179 Notice of application 11
The State must give written notice of the application for the pecuniary 12
penalty order to the person named in the application. 13
180 Right to appear 14
A person named in the application for the pecuniary penalty order may 15
appear at the hearing of the application. 16
181 Amendment of application 17
(1) The court hearing the application for the pecuniary penalty order 18
may amend the application at the request, or with the agreement, of the 19
State. 20
(2) If the State applies for an amendment of the application and the 21
amendment would have the effect of including an additional benefit in the 22
application, the State must give the person named in the application written 23
notice of the application for the amendment. 24
(3) The court may amend the application to include an additional benefit 25
in the application only if the court is satisfied-- 26
(a) the benefit was not reasonably capable of identification when the 27
application was originally made; or 28
(b) necessary evidence became available only after the application 29
was originally made. 30
s 182 113 s 184
Criminal Proceeds Confiscation Bill 2002
182 Procedure on application 1
(1) In deciding an application for a pecuniary penalty order, the court 2
must have regard to the evidence given in any proceeding against the 3
person for the relevant confiscation offence. 4
(2) If-- 5
(a) the application is made to the court before which the person is 6
convicted; and 7
(b) when the application is made, the court has not passed sentence 8
on the person for the confiscation offence; 9
the court may defer passing sentence until it has decided the application. 10
(3) If a person is treated as if convicted under section 106 because the 11
offence is taken into account in sentencing the person for another offence, 12
the reference in subsection (1) to a proceeding against the person for the 13
offence includes a reference to the proceeding for the other offence. 14
183 Limitation on powers of Magistrates Courts 15
(1) A Magistrates Court may make a pecuniary penalty order because of 16
a conviction for an offence only if it is satisfied the total amount payable 17
under the pecuniary penalty order and all other undischarged pecuniary 18
penalty orders made by the court because of the conviction is not more than 19
the limit of a Magistrates Court's civil jurisdiction. 20
(2) In this section-- 21
"Magistrates Court", other than in relation to the limit of the court's civil 22
jurisdiction, includes the Childrens Court constituted by a magistrate. 23
Division 2--Making of pecuniary penalty order 24
184 Pecuniary penalty orders 25
(1) On an application for a pecuniary penalty order against a person, the 26
court may or, if the offence is a serious drug offence, must-- 27
(a) assess the value of the benefits derived by the person under 28
division 3; and 29
s 185 114 s 186
Criminal Proceeds Confiscation Bill 2002
(b) order the person to pay to the State a pecuniary penalty equal to 1
the assessed value of the benefits less the amounts deducted 2
under subsections (2) and (3). 3
(2) The value, when the pecuniary penalty order is made, of any property 4
for which a forfeiture order is made for the same conviction must be 5
deducted. 6
(3) The court may also deduct either of the following amounts, if the 7
court considers it appropriate to take the amount into account-- 8
(a) any amount payable for restitution or compensation for the same 9
conviction; 10
(b) the value of any property forfeited under a forfeiture order under 11
chapter 2 made in relation to a period including the day the 12
offence to which the conviction relates was committed. 13
(4) The amount payable by the person to the State under the pecuniary 14
penalty order is a debt payable by the person to the State. 15
(5) The order may be enforced as if it were a money order made by a 16
court in a civil proceeding taken by the State against the person for the 17
recovery of the amount payable under the pecuniary penalty order. 18
185 Discharge of pecuniary penalty order to the extent of automatic 19
forfeiture 20
(1) This section applies to a person who has been convicted of a serious 21
criminal offence and against whom a pecuniary penalty order has been 22
made because of the conviction. 23
(2) If property of the person is also automatically forfeited to the State 24
because of the conviction, the debt payable under the pecuniary penalty 25
order is discharged to the extent of-- 26
(a) if the property is sold--the value of the proceeds of the sale; or 27
(b) if the property is not sold--the amount the Attorney-General 28
decides is the reasonable value of the property. 29
186 Pecuniary penalty order increase if forfeiture order discharged 30
(1) This section applies if-- 31
(a) a court makes a pecuniary penalty order; and 32
s 187 115 s 187
Criminal Proceeds Confiscation Bill 2002
(b) in deciding the amount payable under the pecuniary penalty 1
order, the court takes into account the value of property forfeited 2
under a forfeiture order; and 3
(c) after the pecuniary penalty order is made, the forfeiture ends 4
because of an appeal. 5
(2) The State may apply to the court that made the pecuniary penalty 6
order for a variation of the order to increase the amount payable under the 7
order. 8
(3) If the court considers an increase appropriate, it may vary the amount 9
payable under the pecuniary penalty order. 10
Division 3--Assessment of benefits 11
187 Assessment of benefits 12
(1) When assessing the value of benefits derived by a person from the 13
commission of a confiscation offence for the purposes of making a 14
pecuniary penalty order against a person ("relevant person"), the court 15
must have regard to the evidence before it about the following-- 16
(a) the value of cash and other property that came into the possession 17
or under the control of the relevant person or someone else at the 18
request, or by the direction, of the relevant person, because of the 19
commission of the offence; 20
(b) the value of any benefit provided for the relevant person or 21
someone else at the request, or by the direction, of the relevant 22
person because of the commission of the offence; 23
(c) if the offence consisted of the doing of an act or thing in relation 24
to a dangerous drug or controlled substance (the "illegal 25
drug")-- 26
(i) the market value, when the offence was committed, of a 27
dangerous drug or controlled substance similar, or 28
substantially similar, to the illegal drug involved in the 29
offence; and 30
(ii) the amount that was, or the range of amounts that were, 31
ordinarily paid for the doing of a similar, or substantially 32
similar, act or thing; 33
s 188 116 s 188
Criminal Proceeds Confiscation Bill 2002
(d) the value of the relevant person's property-- 1
(i) if the application relates to a single offence--before, during 2
and after the commission of the offence; or 3
(ii) if the application relates to 2 or more offences--before, 4
during and after the offence period; 5
(e) the relevant person's income and expenditure-- 6
(i) if the application relates to a single offence--before, during 7
and after the commission of the offence; or 8
(ii) if the application relates to 2 or more offences--before, 9
during and after the offence period. 10
(2) The court-- 11
(a) may treat as the value of the benefit the value the benefit would 12
have had if derived when the valuation is being made; and 13
(b) without limiting paragraph (a), may have regard to any decline in 14
the purchasing power of money between the time the benefit was 15
derived and the time the valuation is being made. 16
(3) In this section-- 17
"offence period", for an application for a pecuniary penalty order made in 18
relation to 2 or more offences, means the period starting when the 19
earlier or earliest of the offences was committed and ending when the 20
later or latest of the offences was committed. 21
188 Procedure if application relating to 1 confiscation offence 22
(1) This section applies if-- 23
(a) an application for a pecuniary penalty order relates to 24
1 confiscation offence; and 25
(b) at the hearing of the application, evidence is given that the value 26
of the person's property after the commission of the confiscation 27
offence was more than the value of the property before the 28
commission of the offence. 29
(2) The court must treat the difference as the benefits derived by the 30
person from the commission of the offence, other than to the extent the 31
court is satisfied the reason for the difference was not related to the 32
commission of the offence. 33
s 189 117 s 191
Criminal Proceeds Confiscation Bill 2002
189 Procedure if application relating to more than 1 confiscation 1
offence 2
(1) This section applies if-- 3
(a) an application for a pecuniary penalty order relates to more 4
than 1 confiscation offence; and 5
(b) at the hearing of the application, evidence is given that the value 6
of the person's property at any time during or after the offence 7
period was more than the value of the property before the start of 8
the offence period. 9
(2) The court must treat the difference as the benefits derived by the 10
person from the commission of the offences, other than to the extent the 11
court is satisfied the difference was not related to the commission of the 12
offences. 13
190 Property that may be taken into account for assessment 14
(1) For this division, the following property of a person is presumed, 15
unless the contrary is proved, to be property that came into the possession 16
or under the control of the person because of the commission of the offence 17
or offences-- 18
(a) all property of the person when the application for the pecuniary 19
penalty order is made; and 20
(b) all property of the person at any time within the shorter of the 21
following periods-- 22
(i) the period between the day the offence, or the earliest 23
offence, was committed and the day the application is made; 24
(ii) the period of 5 years immediately before the day the 25
application is made. 26
(2) For subsection (1), property of a person that vests in the official 27
trustee in bankruptcy because of the person's bankruptcy is taken to 28
continue to be the property of the person. 29
191 Property under effective control 30
In assessing the value of benefits derived by a person from the 31
commission of an offence, the court may treat as property of the person any 32
property that, in the court's opinion, is under the person's effective control. 33
s 192 118 s 194
Criminal Proceeds Confiscation Bill 2002
192 Particular benefits not to be taken into account 1
The court must not take into account a benefit for the purposes of a 2
pecuniary penalty order if a pecuniary penalty has already been imposed 3
because of the benefit under this Act or a law of the Commonwealth or 4
another State. 5
193 Expenses and outgoings 6
(1) For this division, any expenses or outgoings of the person in, or in 7
connection with, the commission of the offence or offences must be 8
disregarded. 9
(2) In this section-- 10
"commit" an offence includes attempt, conspire, plan and prepare to 11
commit the offence. 12
"expenses or outgoings", of the person, includes all costs and expenses 13
incurred by the person in, or in connection with, committing the 14
offence or offences. 15
16
Example of expenses or outgoings--
17
The cost of acquiring or attempting to acquire something concerned in
18
committing the offence.
194 Evidence 19
(1) Despite any rule of law or practice about hearsay evidence, the court 20
may, for this division, receive evidence of the opinion of a prescribed 21
officer who is experienced in the investigation of illegal activities involving 22
dangerous drugs about-- 23
(a) the market value at a particular time of a particular kind of 24
dangerous drug or controlled substance; or 25
(b) the amount, or range of amounts, ordinarily paid at a particular 26
time for the doing of anything in relation to a particular kind of 27
dangerous drug or controlled substance. 28
(2) In this section-- 29
"prescribed officer" means-- 30
(a) a police officer; or 31
(b) a member of the Australian Federal Police; or 32
s 195 119 s 196
Criminal Proceeds Confiscation Bill 2002
(c) an officer of customs within the meaning of the Customs Act 1
1901 (Cwlth); or 2
(d) an authorised commission officer. 3
Division 4--Other provisions 4
195 Discharge of pecuniary penalty order 5
(1) A pecuniary penalty order is discharged if-- 6
(a) the conviction because of which the order was made is quashed; 7
or 8
(b) it is discharged on appeal. 9
(2) If the pecuniary penalty order is registered under the Service and 10
Execution of Process Act 1992 (Cwlth), notice of the order's discharge 11
must be given to the persons, in the way and within the time the court 12
considers appropriate. 13
196 Charge on restrained property under restraining order if 14
pecuniary penalty order made 15
(1) This section applies if-- 16
(a) a pecuniary penalty order is, or has been, made against a person 17
convicted of a confiscation offence (the "prescribed 18
respondent"); and 19
(b) a restraining order is, or has been, made against the property of a 20
person, whether the prescribed respondent or someone else, 21
based on-- 22
(i) the prescribed respondent's conviction of the confiscation 23
offence; or 24
(ii) the charging, or proposed charging, of the prescribed 25
respondent with the confiscation offence or a related 26
indictable offence. 27
(2) A charge on the property that secures the payment to the State of the 28
amount payable under the pecuniary penalty order comes into existence on 29
the making of whichever is the later of the pecuniary penalty order or the 30
restraining order. 31
s 197 120 s 197
Criminal Proceeds Confiscation Bill 2002
(3) The charge ceases to have effect if-- 1
(a) the pecuniary penalty order is discharged; or 2
(b) the pecuniary penalty is paid; or 3
(c) the property is disposed of under an order under section 219; or 36
4
(d) the property is disposed of with the approval of-- 5
(i) the Supreme Court; or 6
(ii) if the public trustee has been directed to take control of the 7
property--the public trustee; or 8
(e) the property is sold to a buyer in good faith for sufficient 9
consideration and without notice of the charge. 10
(4) The charge is subject to every encumbrance over the property that 11
was in existence immediately before the pecuniary penalty order was made 12
but has priority over all other encumbrances. 13
(5) Subject to subsection (3), the charge remains on the property despite 14
any disposal of the property. 15
(6) The charge may be registered under a law that provides for the 16
registration of charges on property of the type affected by the charge. 17
(7) If the charge is registered under subsection (6), a person who buys 18
the property after the registration of the charge is, for the purposes of 19
subsection (3)(e), taken to have had notice of the charge. 20
197 Pecuniary penalty order to be registered 21
(1) This section applies if a pecuniary penalty order has been made 22
against a person. 23
(2) The registrar of titles and any other person responsible for keeping 24
registers relating to property must, on request and on production to the 25
person of sufficient evidence of the order, record in the appropriate register 26
a statement that the pecuniary penalty order has been made. 27
(3) This section is to be given effect even though a relevant document of 28
title is not produced to a registrar or any other person. 29
(4) This section applies despite any other Act. 30
36 Section 219 (Public trustee may apply for order for satisfying liability because of
confiscation order or automatic forfeiture)
s 198 121 s 199
Criminal Proceeds Confiscation Bill 2002
198 Application of property under effective control for satisfying 1
pecuniary penalty order 2
(1) The State may apply to a court for an order declaring that particular 3
property is under the effective control of a person against whom the court 4
has made a pecuniary penalty order (the "controlling person"). 5
(2) The State must give written notice of the application to-- 6
(a) the controlling person; and 7
(b) anyone else the appropriate officer making the application for the 8
State considers may have an interest in the property. 9
(3) The controlling person, and anyone else who claims an interest in the 10
property, may appear at the hearing of the application. 11
(4) If the court is satisfied that the property is under the effective control 12
of the controlling person, the court may make an order declaring that the 13
property is available to satisfy the pecuniary penalty order to the extent to 14
which property of the controlling person is not readily available for the 15
purpose. 16
(5) The pecuniary penalty order may be enforced against the property, to 17
the extent stated in the declaration, as if the property were the controlling 18
person's property. 19
(6) The court may also make a restraining order in relation to the 20
property as if the property were the controlling person's property. 21
(7) The absence of a person required to be given notice of the application 22
does not prevent a court from making the order. 23
199 Rehearing 24
(1) This section applies if a pecuniary penalty order has been made 25
against a person who was charged with a confiscation offence on the 26
ground that the person is unamenable to justice. 27
(2) The person or the State may apply to the court that made the order to 28
have the order set aside. 29
(3) If the applicant is the person against whom the order was made, the 30
applicant must give notice of the application to the Attorney-General. 31
(4) The Attorney-General may appear to oppose the grant of the 32
application. 33
s 200 122 s 200
Criminal Proceeds Confiscation Bill 2002
(5) The court may set aside the order on the terms and conditions about 1
costs or otherwise the court considers appropriate. 2
(6) If the court sets aside the order, the court may rehear the application 3
for the order immediately or at a later time fixed by the court. 4
CHAPTER 4--SPECIAL FORFEITURE ORDERS 5
PART 1--SPECIAL FORFEITURE ORDER 6
APPLICATION 7
200 Application for special forfeiture order 8
(1) This section applies if-- 9
(a) a person (the "prescribed respondent") has been convicted of a 10
confiscation offence; and 11
(b) the prescribed respondent, or someone else for the prescribed 12
respondent, has derived, is deriving, or is to derive, benefits 13
("benefits") from a contract entered on or after 12 May 1989 14
("relevant contract") about either of the following-- 15
(i) a depiction of the confiscation offence or alleged 16
confiscation offence in a movie, book, newspaper, 17
magazine, radio, or television production, or in any other 18
electronic form, or live or recorded entertainment of any 19
kind; or 20
(ii) an expression of the prescribed respondent's thoughts, 21
opinions or emotions about the confiscation offence or 22
alleged confiscation offence. 23
(2) The State may apply to the Supreme Court at any time for an order 24
("special forfeiture order") that the prescribed respondent pay to the State 25
an amount equal to all or part of the prescribed respondent's benefits under 26
the relevant contract. 27
(3) This section applies to a contract made before or after the prescribed 28
respondent's conviction, whether in Queensland or elsewhere, including 29
outside Australia. 30
s 201 123 s 203
Criminal Proceeds Confiscation Bill 2002
201 Notice of application 1
(1) The State must give notice of the application to the prescribed 2
respondent and anyone else mentioned in section 200(1)(b). 3
(2) The Supreme Court may, at any time before finally deciding the 4
application-- 5
(a) direct the State to give notice of the application to the persons, in 6
the way and within the time the court considers appropriate; or 7
(b) amend the notice of application as it considers appropriate, either 8
at the State's request or with the State's approval. 9
(3) Anyone given notice of the application may appear at the hearing of 10
the application. 11
202 Making of special forfeiture order 12
(1) If the Supreme Court is satisfied the prescribed respondent has 13
derived, is deriving or will derive benefits under the relevant contract, the 14
court may make a special forfeiture order. 15
(2) The order must-- 16
(a) state, as the amount to be paid to the State, the amount assessed 17
under part 2 as the value of the benefit derived under the relevant 18
contract; and 19
(b) direct any person who, under the relevant contract, is required to 20
pay amounts to the prescribed respondent or another person, at 21
the request or by the direction of the prescribed respondent, to 22
pay the amounts to the State. 23
PART 2--ASSESSMENT OF BENEFITS 24
203 Assessment of benefits 25
(1) When assessing the value of benefits derived or to be derived under a 26
relevant contract, the Supreme Court must have regard to the evidence 27
before it about the following-- 28
s 204 124 s 205
Criminal Proceeds Confiscation Bill 2002
(a) the value of cash and other property that came into the possession 1
or under the control of the prescribed respondent or someone else 2
at the request, or by the direction, of the prescribed respondent 3
because of the relevant contract; 4
(b) the value of any benefit provided for the prescribed respondent or 5
someone else at the request or by the direction of the prescribed 6
respondent because of the relevant contract; 7
(c) the value of the prescribed respondent's property before and after 8
the making of the relevant contract; 9
(d) the prescribed respondent's income and expenditure before and 10
after the making of the relevant contract. 11
(2) The court-- 12
(a) may treat as the value of the benefit the value the benefit would 13
have had if received when the valuation is being made; and 14
(b) without limiting paragraph (a), may have regard to any decline in 15
the purchasing power of money between the time the benefit was 16
received and the time the valuation is being made. 17
204 How particular amounts may be treated 18
(1) This section applies if, at the hearing of an application for a special 19
forfeiture order, evidence is given that the value of the prescribed 20
respondent's property after the making of the relevant contract was more 21
than the value of the property before the making of the contract. 22
(2) The Supreme Court must treat the difference as the value of the 23
benefit received by the person from the contract, other than to the extent the 24
court is satisfied the reason for the difference was not related to the making 25
of the contract. 26
205 Property that may be taken into account for assessment 27
(1) For this part, the following property of a person is presumed, unless 28
the contrary is proved, to be property that came into the possession or 29
under the control of the person because of the making of the relevant 30
contract-- 31
(a) all property of the prescribed respondent when the application 32
for the special forfeiture order is made; and 33
s 206 125 s 208
Criminal Proceeds Confiscation Bill 2002
(b) all property of the prescribed respondent at any time within the 1
shorter of the following periods-- 2
(i) the period between the day the relevant contract was made 3
and the day the application is made; 4
(ii) the 5 years immediately before the day the application is 5
made. 6
(2) For subsection (1), property of a person that vests in the official 7
trustee in bankruptcy because of the person's bankruptcy is taken to 8
continue to be the property of the person. 9
206 Property under effective control 10
In assessing the value of benefits derived by a person from a relevant 11
contract, the Supreme Court may treat as property of the person any 12
property that, in the court's opinion, is under the effective control of the 13
person. 14
207 Expenses and outgoings 15
For this part, any expenses or outgoings of the person in connection with 16
the relevant contract must be disregarded. 17
PART 3--OTHER PROVISIONS 18
208 Application of property under effective control for satisfying 19
special forfeiture order 20
(1) The State may apply to the Supreme Court for an order declaring that 21
particular property is under the effective control of a person against whom 22
the court has made a special forfeiture order (the "controlling person"). 23
(2) The State must give written notice of the application to-- 24
(a) the controlling person; and 25
(b) anyone else the appropriate officer making the application for the 26
State considers may have an interest in the property. 27
s 209 126 s 210
Criminal Proceeds Confiscation Bill 2002
(3) The controlling person, and anyone else who claims an interest in the 1
property, may appear at the hearing of the application. 2
(4) If the court is satisfied that the property is under the effective control 3
of the controlling person, the court may make an order declaring that the 4
property is available to satisfy the special forfeiture order to the extent to 5
which property of the controlling person is not readily available for the 6
purpose. 7
(5) The special forfeiture order may be enforced against the property, to 8
the extent stated in the declaration, as if the property were the controlling 9
person's property. 10
(6) The court may also make a restraining order in relation to the 11
property as if the property were the controlling person's property. 12
(7) The absence of a person required to be given notice of the application 13
does not prevent the court from making the order. 14
209 Effect of special forfeiture order 15
(1) The amount stated in a special forfeiture order is a debt payable by 16
the prescribed respondent to the State. 17
(2) The special forfeiture order may be enforced as if it were a money 18
order made by the Supreme Court in a civil proceeding taken by the State 19
against the person for the recovery of the amount payable under the special 20
forfeiture order. 21
(3) A person who pays an amount payable under a relevant contract to 22
the State as directed under a special forfeiture order is discharged from the 23
terms of the relevant contract. 24
210 Application of amounts paid to the State under this chapter 25
(1) The Governor in Council may direct that an amount paid to the State 26
under a special forfeiture order must be applied to satisfy-- 27
(a) an order made under the Penalties and Sentences Act 1992 28
requiring the prescribed respondent to make restitution or pay 29
compensation; or 30
(b) an order made by a court requiring the prescribed respondent to 31
pay damages to a person for injury suffered by the person 32
because of the commission of the confiscation offence or alleged 33
confiscation offence to which the relevant contract relates. 34
s 211 127 s 212
Criminal Proceeds Confiscation Bill 2002
(2) If an order mentioned in subsection (1) has been made and has not 1
been satisfied, the person in whose favour it was made may, within 5 years 2
after the day the order was made, apply to the Attorney-General for the 3
order to be satisfied out of money paid to the State under a special 4
forfeiture order. 5
(3) After the end of the 5 years, money paid to the State under a special 6
forfeiture order must be paid to the consolidated fund and any application 7
by a person under subsection (2) is absolutely barred. 8
211 Special forfeiture order to be registered 9
(1) The registrar of titles and any other person responsible for keeping 10
registers relating to property must, on request and on production to the 11
person of sufficient evidence of a special forfeiture order record in the 12
appropriate register a statement that the order has been made. 13
(2) This section is to be given effect even though any relevant document 14
of title is not produced to a registrar or any other person. 15
(3) This section applies despite any other Act. 16
CHAPTER 5--PARTICULAR PROVISIONS ABOUT 17
FORFEITURE OF PROPERTY 18
212 Chapter does not apply to particular property 19
This chapter does not apply to forfeited property that may be dealt with 20
under the Police Powers and Responsibilities Act 2000, chapter 11, part 3, 21
division 7.37 22
37 Police Powers and Responsibilities Act 2000, chapter 11 (Administration), part 3
(Dealing with things in the possession of police service), division 7 (Dealing with
forfeited things)
s 213 128 s 214
Criminal Proceeds Confiscation Bill 2002
213 Forfeited property not to be disposed of during appeal period 1
(1) Within the appeal period, the State must not, without the leave of the 2
court that made the order forfeiting property or, for property that is 3
automatically forfeited, the relevant restraining order-- 4
(a) dispose of property forfeited to the State under this Act; or 5
(b) authorise anyone else to dispose of the property. 6
7
Note--
8
Under the Police Powers and Responsibilities Act 2000, section 440, forfeited property
9
in the possession of the Police Service may not be dealt with until all proceedings for
10
the offence or suspected offence for which the property was forfeited have been finally
11
decided.
(2) When the appeal period ends, the State may dispose of the property 12
unless-- 13
(a) if the property was forfeited under a forfeiture order--the 14
relevant order has been discharged; or 15
(b) if the property was automatically forfeited because of the 16
conviction of a person of a serious criminal offence--the 17
conviction of the person of the offence has been quashed. 18
(3) In this section-- 19
"appeal period" means-- 20
(a) if the property was forfeited because of the conviction of a 21
person of a confiscation offence--the period ending when all 22
proceedings relating to the conviction are finally decided; or 23
(b) for an appeal that may be started under section 26338--the period 24
for starting the appeal or, if an appeal is started, the period ending 25
when the appeal is finally decided. 26
214 Disposal of forfeited property by State 27
(1) The Attorney-General may give directions about how property 28
forfeited under this Act is to be dealt with. 29
(2) Also, the Attorney-General may authorise the chairperson, the DPP 30
or a public service officer to give the directions for the Attorney-General. 31
38 Section 263 (Appeals)
s 215 129 s 216
Criminal Proceeds Confiscation Bill 2002
(3) Without limiting subsection (1) or (2), a direction may provide for 1
the payment to Legal Aid out of forfeited property, or the proceeds of the 2
disposal of forfeited property, of amounts payable to satisfy a charge over 3
the property in favour of Legal Aid. 4
(4) The Attorney-General may do or authorise the doing of anything 5
necessary or convenient to be done for dealing with the property. 6
(5) The net proceeds of the disposal of property forfeited under chapter 2 7
must be paid to the consolidated fund. 8
215 Procedural matters about forfeiture 9
(1) A person who is in possession of property forfeited to the State under 10
this Act or documents of title to forfeited property must give the property 11
or documents of title to a person authorised by the Attorney-General on the 12
authorised person's demand. 13
(2) A person who gives property or documents of title to property to an 14
authorised person under subsection (1) is discharged from any duty or 15
obligation to anyone else for the disposal of the property or documents of 16
title and from all liability that, apart from this subsection, might have arisen 17
because of the giving of the property or documents of title. 18
(3) The registrar of titles and anybody else who is required or permitted 19
to keep a register about dealings with property must, if asked and given 20
sufficient evidence of the forfeiture of property to the State under this Act, 21
make in the register the entries necessary to record-- 22
(a) the forfeiture to and vesting in the State of the property; or 23
(b) if the Attorney-General directs--the public trustee as the holder 24
of the property on trust for the State. 25
(4) Subsection (3) applies-- 26
(a) despite any other Act; and 27
(b) even if the relevant document of title is not produced. 28
216 Filing of forfeiture certificate 29
(1) This section applies if-- 30
(a) the registrar of the Supreme Court issues a forfeiture certificate; 31
or 32
s 217 130 s 217
Criminal Proceeds Confiscation Bill 2002
(b) a person produces a forfeiture certificate to the registrar of the 1
Supreme Court. 2
(2) The registrar must file the forfeiture certificate, without payment of 3
fee. 4
(3) On filing-- 5
(a) the certificate is a record of the Supreme Court; and 6
(b) the order it mentions is taken to be a judgment of the Supreme 7
Court, properly entered, obtained by the State as plaintiff in an 8
action for the recovery of the property to which the order relates 9
against the person from whom the property has been divested; 10
and 11
(c) the State may take the proceedings to recover the property that 12
could be taken if the judgment had been given in favour of the 13
State. 14
CHAPTER 6--PROVISIONS ABOUT PARTICULAR 15
GOVERNMENT ENTITIES 16
PART 1--POWERS OF PUBLIC TRUSTEE 17
Division 1--Provisions for satisfying particular orders 18
217 Definition for div 1 19
In this division-- 20
"relevant court" means-- 21
(a) the Supreme Court; or 22
(b) if the confiscation order was made by another court--the court 23
that made the order. 24
s 218 131 s 219
Criminal Proceeds Confiscation Bill 2002
218 Application of div 1 1
This part applies if the public trustee has taken control of restrained 2
property because of a direction in a restraining order and-- 3
(a) a confiscation order is made against the person entitled to the 4
restrained property; or 5
(b) the property is automatically forfeited. 6
219 Public trustee may apply for order for satisfying liability because 7
of confiscation order or automatic forfeiture 8
(1) The public trustee may apply to a relevant court for an order directing 9
the public trustee to pay to the consolidated fund out of property under the 10
control of the public trustee-- 11
(a) the amount the Attorney-General decides is the value, as at the 12
time of the decision, of-- 13
(i) the property forfeited under a forfeiture order; or 14
(ii) the automatically forfeited property; 15
(b) the amount ordered to be paid under a proceeds assessment order 16
or a pecuniary penalty order. 17
(2) The relevant court may order the public trustee to pay a stated 18
amount to the consolidated fund from the proceeds realised by the public 19
trustee from the property or the disposal of the property. 20
(3) The relevant court may make any other order the court considers 21
necessary to enable the public trustee to comply with the order, including, 22
but not limited to the following-- 23
(a) an order directing the public trustee to dispose of stated property 24
under the control of the public trustee; 25
(b) an order authorising a stated person to sign any document or to 26
do anything else necessary to enable the public trustee to dispose 27
of property under the control of the public trustee; 28
(c) an order specifying the person to whom the public trustee should 29
pay any amount remaining after making the payments authorised 30
under section 220(a), (b) and (c). 31
(4) The relevant court may make an order under subsection (3) when it 32
makes an order under subsection (2) or, on the application of the public 33
trustee, at a later time. 34
s 220 132 s 223
Criminal Proceeds Confiscation Bill 2002
220 Application of proceeds to satisfy order 1
Proceeds realised by the public trustee from the property or the disposal 2
of the property must be applied as follows-- 3
(a) first, in payment of fees or charges payable to the public trustee 4
under section 223; 5
(b) second, in payment of expenses incurred by the public trustee in 6
disposing of the property; 7
(c) third, in payment to the consolidated fund of the amount stated in 8
the order of the relevant court under section 219(1); 9
(d) fourth, if the relevant court makes an order of a kind mentioned 10
in section 219(3)(c), in payment of any remainder to the person 11
specified by the relevant court; 12
(e) fifth, in payment of any remainder to the person who appears to 13
the public trustee to be entitled to the remainder of the proceeds. 14
221 Effect of payment under s 220 15
On the payment of an amount to the consolidated fund under 16
section 219, the liability of a person under a confiscation order or because 17
of the automatic forfeiture of property to which the payment relates is, to 18
the extent of the payment, discharged. 19
Division 2--Other provisions 20
222 If public trustee directed to take control of restrained property 21
A direction of a court requiring the public trustee to take control of 22
restrained property is sufficient authority for the public trustee to do 23
anything necessary or desirable to be done to give effect to the order. 24
223 Public trustee's fees and charges 25
If the public trustee controls property under this Act, the public trustee 26
may charge and receive, for controlling the property and any income from 27
it, the fees or charges the public trustee may charge an estate under 28
administration under the Public Trustee Act 1978. 29
s 224 133 s 226
Criminal Proceeds Confiscation Bill 2002
224 Public trustee's liability for rates etc. 1
(1) On taking control of property under a restraining order, the public 2
trustee becomes liable, to the extent of the rents and profits received by the 3
public trustee from the property on or after that date, to pay any rates, land 4
tax or municipal or other statutory charges that-- 5
(a) are imposed under a law of the State on or in relation to the 6
restrained property; and 7
(b) become payable on or after the date of the restraining order. 8
(2) Also, if the public trustee takes control of a person's business under a 9
restraining order and carries on that business, the public trustee is not 10
personally liable for-- 11
(a) any payment for long service leave for which that person was 12
liable; or 13
(b) any payment for long service leave to which a person employed 14
by the public trustee to manage the business, or the legal personal 15
representative of that person, becomes entitled after the date of 16
the restraining order; or 17
(c) any debts incurred by the person in relation to the business that 18
the person was liable to pay. 19
225 Agents for public trustee 20
(1) If the public trustee controls property under a restraining order, the 21
public trustee may appoint a person as agent of the public trustee for this 22
Act only with the leave of the Supreme Court. 23
(2) The appointment must specify the powers of the public trustee that 24
the agent may perform in relation to property. 25
(3) This section applies despite the Public Trustee Act 1978. 26
226 Obstruction 27
(1) A person must not hinder or obstruct the public trustee or an officer 28
of the public trustee in the performance of the public trustee's functions 29
under a restraining order. 30
Maximum penalty--25 penalty units or 6 months imprisonment. 31
s 227 134 s 229
Criminal Proceeds Confiscation Bill 2002
(2) In this section-- 1
"officer", of the public trustee, means a public service employee whose 2
duties include performing functions for the public trustee under this 3
Act. 4
PART 2--LEGAL AID 5
227 Legal Aid Act 6
(1) This part applies despite the Legal Aid Act. 7
(2) Also, this part applies only to an application for legal assistance 8
under the Legal Aid Act in relation to-- 9
(a) a proceeding under this Act; or 10
(b) a criminal proceeding, including any proceeding on appeal 11
against conviction or sentence. 12
228 Matters not to be taken into account in deciding application for 13
legal assistance 14
(1) This section applies to an application for legal assistance under the 15
Legal Aid Act by a person whose property is restrained under a restraining 16
order under this Act. 17
(2) In applying the criteria under the Legal Aid Act to the application for 18
legal assistance, Legal Aid must not take the restrained property into 19
account. 20
229 Legal Aid may require charge over property 21
(1) It is not a contravention of a restraining order for Legal Aid to impose 22
a condition on an approval to give legal assistance requiring the person to 23
be assisted to give Legal Aid a charge over restrained property. 24
(2) If Legal Aid takes a charge over restrained property, Legal Aid must 25
give the DPP notice of the charge. 26
s 230 135 s 231
Criminal Proceeds Confiscation Bill 2002
230 Effect of forfeiture on charge 1
On the forfeiture of property under this Act, a charge that is enforceable 2
under the Legal Aid Act continues to have effect and may be satisfied out of 3
the proceeds of the disposal of the forfeited property. 4
5
Note--
6
The Legal Aid Act contains provisions allowing Legal Aid to enforce charges over
7
property that is not forfeited under this Act.
CHAPTER 7--INTERSTATE ORDERS AND 8
WARRANTS 9
PART 1--INTERPRETATION 10
231 Definitions for ch 7 11
In this chapter-- 12
"relevant order" means-- 13
(a) an interstate forfeiture order that expressly applies to stated 14
property in Queensland; or 15
(b) an interstate restraining order that expressly applies to-- 16
(i) stated property in Queensland; or 17
(ii) all property in Queensland of a stated person, including 18
property acquired by the person after the making of the 19
order. 20
"sealed", of a copy of a relevant order, means sealed by the court that made 21
the order. 22
s 232 136 s 233
Criminal Proceeds Confiscation Bill 2002
PART 2--PROVISIONS ABOUT FILING INTERSTATE 1
ORDERS 2
232 Filing of interstate orders 3
(1) An appropriate person may file in the Supreme Court a sealed copy 4
of a relevant order. 5
(2) Also, an appropriate person may file in the Supreme Court a sealed 6
copy of an amendment made to a relevant order, whether the amendment 7
was made before or after the filing of the relevant order. 8
(3) If a relevant order is filed under subsection (1), an amendment made 9
to the order has no effect under this Act until it is filed. 10
(4) The Supreme Court may refuse to file a relevant order to the extent 11
that the order would not, on filing, be capable of enforcement in 12
Queensland. 13
(5) In this section-- 14
"appropriate person", for filing a relevant order, means-- 15
(a) the applicant for the order; or 16
(b) the Attorney-General; or 17
(c) a person prescribed under a regulation as an appropriate person 18
for this section. 19
233 Interim filing of facsimile copies 20
(1) This section applies if-- 21
(a) an appropriate person mentioned in section 232 files in the 22
Supreme Court a facsimile copy of a sealed copy of a relevant 23
order or an amendment made to a relevant order; and 24
(b) the facsimile copy otherwise complies with any requirements for 25
filing orders under the Uniform Civil Procedure Rules 1999. 26
(2) The Supreme Court must treat the facsimile copy as a sealed copy of 27
the relevant order or the amendment made to the relevant order. 28
(3) However, if the sealed copy of the relevant order or amendment is 29
not filed within 10 days after the facsimile copy is filed, the effect of filing 30
the facsimile copy ends. 31
s 234 137 s 234
Criminal Proceeds Confiscation Bill 2002
(4) If the sealed copy of the relevant order or amendment is filed within 1
10 days after the facsimile copy is filed, the sealed copy is taken to have 2
been filed on the day the facsimile copy was filed. 3
(5) Despite the effect of filing a facsimile copy of a relevant order or 4
amendment ending in circumstances mentioned in subsection (3), any 5
forfeiture already made in relation to the order is not affected. 6
234 Effect of filing interstate forfeiture order 7
(1) An interstate forfeiture order that is filed under this chapter is taken 8
for this Act to be a forfeiture order under this Act until-- 9
(a) it ceases to be in force in the State in which it was made; or 10
(b) its filing is cancelled under this Act. 11
(2) However-- 12
(a) a person may not apply for, and a court may not make the 13
following orders under this Act in relation to the property-- 14
(i) an exclusion order; 15
(ii) an innocent interest exclusion order; 16
(iii) a third party order; 17
(iv) a buy-back order; 18
(v) a release order; 19
(vi) an order under section 176;39 20
(b) the order may not be discharged under this Act; and 21
(c) the DPP is not required to give notice as required under 22
section 174;40 and 23
(d) the State may not dispose of the property under this Act; and 24
(e) the Attorney-General may not give directions under this Act 25
about the disposal of forfeited property; and 26
(f) an appeal against the order does not lie under this Act. 27
39 Section 176 (If application for order declaring value of property)
40 Section 174 (Notice after conviction quashed or forfeiture order discharged)
s 235 138 s 236
Criminal Proceeds Confiscation Bill 2002
235 Effect of filing interstate restraining order 1
(1) An interstate restraining order that is filed under this chapter is taken 2
for this Act to be a restraining order made under this Act until-- 3
(a) it ceases to be in force in the State in which it was made; or 4
(b) its filing is cancelled under this Act. 5
(2) However-- 6
(a) a condition may not be imposed on the restraining order under 7
this Act; and 8
(b) the public trustee can not be directed under this Act to take 9
control of the property; and 10
(c) notice of the making of the restraining order is not required to be 11
given under this Act; and 12
(d) a person may not apply to a court for, and a court may not make, 13
an order under this Act excluding the property from the interstate 14
restraining order; and 15
(e) a person may not apply for, and the Supreme Court may not 16
make, an order under this Act that the property be sold; and 17
(f) a court may not make any other orders in relation to the 18
restrained property; and 19
(g) the duration of the restraining order must not be decided under 20
this Act; and 21
(h) the property is not charged in favour of the State; and 22
(i) the public trustee may not apply under chapter 6, part 1, 23
division 1 for orders about satisfying a person's liability under 24
this Act; and 25
(j) an appeal does not lie against the order under this Act. 26
(3) Subsection (2)(h) is subject to section 237.41 27
236 Cancellation of filing 28
(1) The Supreme Court or a judicial registrar may cancel the filing of a 29
relevant order if the court or judicial registrar is satisfied-- 30
41 Section 237 (Charge on property subject to filed interstate restraining order)
s 237 139 s 237
Criminal Proceeds Confiscation Bill 2002
(a) filing was improperly obtained; or 1
(b) particulars of any amendments made to the order, or of any 2
ancillary orders or directions made by a court, are not given to 3
the Supreme Court under the Uniform Civil Procedure Rules 4
1999. 5
(2) Also, the Supreme Court may cancel the filing of a relevant order to 6
the extent that the order is not capable of enforcement in Queensland. 7
237 Charge on property subject to filed interstate restraining order 8
(1) This section applies if-- 9
(a) an interstate restraining order is made on the basis of the 10
charging or proposed charging of a person with an interstate 11
confiscation offence; and 12
(b) an interstate pecuniary penalty order is made based on the 13
conviction of the person of the interstate confiscation offence; 14
and 15
(c) either of the following happens-- 16
(i) the interstate restraining order is filed under this Act; 17
(ii) the interstate pecuniary penalty order is filed under the 18
Service and Execution of Process Act 1992 (Cwlth). 19
(2) On the filing of the interstate restraining order or the pecuniary 20
penalty order, a charge on the property restrained under the restraining 21
order is created to secure the payment of the pecuniary penalty. 22
(3) The charge ceases to have effect when under the relevant 23
corresponding law the charge created on the making of the pecuniary 24
penalty order ceases to have any effect. 25
(4) Section 196(4), (5) and (6) apply to the charge in the same way and 26
to the same extent as they apply to a charge created by section 196(2).42 27
42 Section 196 (Charge on restrained property under restraining order if pecuniary
penalty order made)
s 238 140 s 239
Criminal Proceeds Confiscation Bill 2002
PART 3--PROVISIONS ABOUT PROPERTY SEIZED 1
UNDER INTERSTATE ORDERS AND SEARCH 2
WARRANTS 3
238 Division does not affect particular provisions 4
This division does not affect or otherwise limit-- 5
(a) the Crime and Misconduct Act 2001, chapter 3, part 5; or 6
(b) the Police Powers and Responsibilities Act 2000, chapter 11, 7
part 3, division 2; or 8
(c) the Justices Act 1886, section 39.43 9
239 Interstate order about return of seized property 10
(1) If property has been seized under a search warrant issued in reliance 11
on the commission of an interstate confiscation offence and a court of the 12
other State makes either of the following orders, the order must, as far as 13
possible, be given effect in Queensland-- 14
(a) an order directing that the property be returned to the person 15
from whose possession it was seized; 16
(b) an order directing that the person be allowed access to the 17
property. 18
(2) The order has effect as if it were an order for the return of the 19
property made under either of the following-- 20
(a) for property in the possession of the commission--the Crime and 21
Misconduct Act 2001, section 114; 22
(b) for property in the possession of the police service--the Police 23
Powers and Responsibilities Act 2000, section 427. 24
43 Crime and Misconduct Act 2001, chapter 3 (Powers), part 5 (Seizing property),
Police Powers and Responsibilities Act 2000, chapter 11 (Administration), part 3
(Dealing with things in the possession of police service), division 2 (Return of
seized things) and Justices Act 1886, section 39 (Power of court to order delivery of
certain property)
s 240 141 s 241
Criminal Proceeds Confiscation Bill 2002
240 Order about property seized in another State for which court 1
refuses to make forfeiture order 2
(1) This section applies if-- 3
(a) property has been seized in another State under a search warrant 4
issued under a corresponding law in reliance on the commission 5
of a confiscation offence; and 6
(b) an application has been made to a court for a forfeiture order in 7
relation to the property; and 8
(c) the court refuses to make the forfeiture order. 9
(2) The court must make an order directing that the property be returned 10
to the person from whose possession it was seized. 11
(3) In this section-- 12
"property" seized under a search warrant does not include-- 13
(a) property used or intended to be used in, or in connection with, 14
the commission of an interstate confiscation offence; or 15
(b) property derived by anyone from the commission of an interstate 16
confiscation offence. 17
241 Application by person for return of property seized in another 18
State 19
(1) This section applies if property has been seized in another State 20
under a search warrant issued under a corresponding law in reliance on the 21
commission of a confiscation offence. 22
(2) The person from whose possession the property was seized may 23
apply to a Magistrates Court for an order-- 24
(a) directing that the property be returned to that person; or 25
(b) directing that the person be allowed access to the property. 26
(3) The applicant must give notice of the application and when and 27
where the application will be heard to the Attorney-General and the 28
commissioner of the police service. 29
(4) The court may make the order on the conditions the court considers 30
appropriate. 31
(5) In this section-- 32
s 242 142 s 243
Criminal Proceeds Confiscation Bill 2002
"property" seized under a search warrant does not include-- 1
(a) property used or intended to be used in, or in connection with, 2
the commission of an interstate confiscation offence; or 3
(b) property derived by anyone from the commission of an interstate 4
confiscation offence. 5
PART 4--OTHER PROVISIONS 6
242 Public trustee may act as agent 7
The public trustee may enter into an agreement to act as the agent of a 8
person directed by an interstate restraining order to take control of 9
property. 10
CHAPTER 8--OBLIGATIONS OF FINANCIAL 11
INSTITUTIONS 12
PART 1--INTERPRETATION 13
243 Meaning of "customer-generated financial transaction document" 14
A "customer-generated financial transaction document", of a 15
financial institution, is a financial transaction document of the institution-- 16
(a) that relates to-- 17
(i) the opening or closing by a person of an account with the 18
institution; or 19
(ii) the operation by a person of an account with the institution; 20
or 21
(iii) the opening or use by a person of a deposit box held by the 22
institution; or 23
s 244 143 s 246
Criminal Proceeds Confiscation Bill 2002
(iv) the telegraphic or electronic transfer of funds by the 1
institution for a person to another person; or 2
(v) the transmission of funds between Australia and a foreign 3
country or between foreign countries for a person; or 4
(vi) an application by a person for a loan from the institution (if 5
a loan is made to the person under the application); and 6
(b) that is given to the institution by or for the person, whether or not 7
the document is signed by or for the person. 8
244 Meaning of "essential customer-generated financial transaction 9
document" 10
An "essential customer-generated financial transaction document", 11
of a financial institution, is a customer-generated financial transaction 12
document other than a document that relates to the operation of an account 13
held with the institution. 14
245 Meaning of "financial transaction document" 15
A "financial transaction document", of a financial institution, is a 16
document, other than a cheque or payment order, that relates to a financial 17
transaction carried out by the institution in its capacity as a financial 18
institution, including, but not limited to, a document relating to-- 19
(a) the opening, operating or closing of an account held with the 20
institution; and 21
(b) the opening or use of a deposit box held by the institution. 22
246 Meaning of "minimum retention period" 23
The "minimum retention period", for a financial transaction document 24
of a financial institution, is-- 25
(a) if the document relates to the opening of an account with the 26
institution--the 7 years after the day the account is closed; or 27
(b) if the document relates to the opening by a person of a deposit 28
box held by the institution--the 7 years after the day the deposit 29
box ceases to be used by the person; or 30
(c) otherwise--the 7 years after the day the transaction takes place. 31
s 247 144 s 248
Criminal Proceeds Confiscation Bill 2002
PART 2--PROVISIONS APPLYING TO FINANCIAL 1
INSTITUTIONS 2
247 Retention of records by financial institutions 3
(1) A financial institution must, subject to section 248, keep each 4
essential customer-generated financial transaction document in its original 5
form for the minimum retention period for the document. 6
Maximum penalty--200 penalty units. 7
(2) A financial institution must keep the following documents, or a copy 8
of the following documents, for the minimum retention period for the 9
relevant documents-- 10
(a) each customer-generated financial transaction document that 11
is not an essential customer-generated financial transaction; 12
(b) each financial transaction document-- 13
(i) that is not a customer-generated financial transaction 14
document; and 15
(ii) whose retention is necessary to preserve a record of the 16
financial transaction concerned. 17
Maximum penalty--200 penalty units. 18
(3) Subsection (2) does not apply to a financial transaction document 19
that relates to a single deposit, credit, withdrawal, debit or transfer of an 20
amount of money of not more than $200 or a higher amount prescribed 21
under a regulation for this subsection. 22
(4) A financial institution must retain and store documents required to be 23
kept under subsection (1) and (2) in a way that makes retrieval of the 24
documents reasonably practicable. 25
Maximum penalty--200 penalty units. 26
(5) This section does not limit any other obligation of a financial 27
institution to retain documents. 28
248 Register of original documents 29
(1) If a financial institution is required by law to release an original of an 30
essential customer-generated financial transaction document before the 31
minimum retention period for the document ends, the institution must keep 32
s 249 145 s 249
Criminal Proceeds Confiscation Bill 2002
a complete copy of the document until the period has ended or the original 1
is returned, whichever happens first. 2
Maximum penalty--200 penalty units. 3
(2) The financial institution must keep a register of documents released 4
under subsection (1). 5
Maximum penalty--200 penalty units. 6
249 Communication of information by financial institutions to 7
particular officers 8
(1) This section applies if a financial institution has information about an 9
account held, or a transaction conducted, with the institution and the 10
institution has reasonable grounds for believing that-- 11
(a) the information may be relevant to-- 12
(i) an investigation of, or the prosecution of a person for, an 13
offence against a law of the State; or 14
(ii) an investigation of a serious crime related activity or another 15
matter for which an order may be made under chapter 2; or 16
(b) the information would otherwise be of assistance in the 17
enforcement of this Act. 18
(2) The institution may give the information to a police officer. 19
(3) If the information relates to an investigation of a serious crime 20
related activity or another matter for which an order may be made under 21
chapter 2, the institution may give the information to a commission officer. 22
(4) No action, suit or proceeding lies against-- 23
(a) a financial institution; or 24
(b) an officer or agent of the institution acting in the course of the 25
person's employment or agency; 26
in relation to any action taken by the institution or person under 27
subsection (2) or (3). 28
(5) If a financial institution, or an officer or agent of the institution, gives 29
information under subsection (2) or (3) as soon as practicable after forming 30
the belief mentioned in subsection (1), the institution or person is taken, for 31
the purposes of sections 250 and 252, not to have been in possession of that 32
information at any time. 33
s 250 146 s 251
Criminal Proceeds Confiscation Bill 2002
(6) In this section-- 1
"officer" includes director, secretary, executive officer or employee, 2
CHAPTER 9--OFFENCES 3
250 Money laundering 4
(1) A person who engages in money laundering commits a crime. 5
Maximum penalty--3 000 penalty units or 20 years imprisonment. 6
(2) A person engages in money laundering if-- 7
(a) the person-- 8
(i) engages, directly or indirectly, in a transaction involving 9
money or other property that is tainted property; or 10
(ii) receives, possesses, disposes of or brings into Queensland 11
money or other property that is tainted property; or 12
(iii) conceals or disguises the source, existence, nature, location, 13
ownership or control of tainted property; and 14
(b) the person knows, or ought reasonably to know, that the property 15
is tainted property or is derived from some form of unlawful 16
activity. 17
(3) In applying this section to a financial institution, the fact that the 18
financial institution is, or has been, subject to a monitoring order or a 19
suspension order must be disregarded. 20
(4) In this section-- 21
"tainted property" includes property that is tainted property because of an 22
interstate confiscation offence. 23
251 Charging of money laundering 24
(1) This section applies to a proceeding against a person for money 25
laundering, including a committal proceeding. 26
(2) The Attorney-General's written consent must be obtained before a 27
proceeding is started by complaint under the Justices Act 1886. 28
s 252 147 s 253
Criminal Proceeds Confiscation Bill 2002
(3) If the proceeding is not started by complaint under the Justices 1
Act 1886, the Attorney-General's written consent must be obtained before 2
the proceeding progresses to a hearing and decision. 3
(4) A charge of money laundering may be about-- 4
(a) an act, or 2 or more acts committed at the same time or different 5
times; or 6
(b) tainted property relating to an offence, or 2 or more offences 7
committed by the same person or different persons. 8
(5) A person may be convicted of money laundering even though the 9
tainted property concerned related to an offence committed by the person. 10
252 Possession etc. of property suspected of being tainted property 11
(1) A person must not receive, possess, dispose of, bring into 12
Queensland, conceal or disguise property that may reasonably be suspected 13
of being tainted property. 14
Maximum penalty--100 penalty units or 2 years imprisonment. 15
(2) If a person is charged with an offence against this section, it is a 16
defence to the charge if the person satisfies the court that the person had no 17
reasonable grounds for suspecting that the property mentioned in the 18
charge was either tainted property or derived from any form of unlawful 19
activity. 20
(3) In applying this section to a financial institution, the fact that the 21
financial institution is, or has been, subject to a monitoring order or a 22
suspension order must be disregarded. 23
(4) In this section-- 24
"tainted property" includes property that is tainted property because of an 25
interstate confiscation offence. 26
253 Responsibility for acts or omissions of representatives 27
(1) This section applies to a proceeding for an offence against this Act. 28
(2) If it is relevant to prove a person's state of mind about a particular act 29
or omission, it is enough to show-- 30
s 254 148 s 254
Criminal Proceeds Confiscation Bill 2002
(a) the act was done or omitted to be done by a representative of the 1
person within the scope of the representative's actual or apparent 2
authority; and 3
(b) the representative had the state of mind. 4
(3) An act done or omitted to be done for a person by a representative of 5
the person within the scope of the representative's actual or apparent 6
authority is taken also to have been done or omitted to be done also by the 7
person, unless the person proves the person could not, by the exercise of 8
reasonable diligence, have prevented the act or omission. 9
(4) In this section-- 10
"representative" of a person means-- 11
(a) for a corporation--an executive officer, employee or agent of the 12
corporation; or 13
(b) for an individual--an employee or agent of the individual. 14
"state of mind" of a person includes-- 15
(a) the person's knowledge, intention, opinion, belief or purpose; 16
and 17
(b) the person's reasons for the intention, opinion, belief or purpose. 18
CHAPTER 10--MISCELLANEOUS PROVISIONS 19
PART 1--ARRANGEMENTS TO DEFEAT OPERATION 20
OF ACT 21
254 Definitions for part 1 22
In this part-- 23
"defeat" the operation of this Act includes avoid, prevent and impede. 24
"scheme" means-- 25
(a) any agreement, arrangement, promise, understanding or 26
undertaking, whether express or implied and whether or not 27
s 255 149 s 256
Criminal Proceeds Confiscation Bill 2002
enforceable, or intended to be enforceable, by legal proceedings; 1
or 2
(b) any action, course of action, course of conduct, plan or proposal. 3
255 Arrangements to defeat operation of Act 4
(1) The State may apply to the Supreme Court for an order declaring that 5
a scheme carried out by a particular person was carried out for the purpose 6
of directly or indirectly defeating the operation of this Act. 7
(2) The State must give written notice of the application to the person 8
against whom the order is sought and anyone else the appropriate officer 9
making the application for the State considers has an interest in the 10
property to which the scheme relates. 11
(3) At any time before it finally decides the application, the Supreme 12
Court may direct the State to give notice of the application to the persons, 13
in the way and within the time, the court considers appropriate. 14
256 Orders for defeating arrangements 15
(1) If the Supreme Court is satisfied the person carried out a scheme for 16
the purpose of directly or indirectly defeating the operation of this Act in 17
any way, the court may for defeating that purpose-- 18
(a) make an order declaring all or part of the scheme void; or 19
(b) make an order varying the operation of all or part of the scheme. 20
(2) The court may make the other orders the court considers appropriate 21
in the circumstances for a consequential or related matter or for giving 22
effect to any order of the court under this section, including, for example, 23
orders about the following-- 24
(a) any disposal of property; 25
(b) the payment of money; 26
(c) the sale or other realisation of property and the disposal of the 27
proceeds; 28
(d) the creation of a charge on property in favour of any person and 29
the enforcement of the charge created; 30
s 257 150 s 258
Criminal Proceeds Confiscation Bill 2002
(e) the rights of a person who acquired an interest in the property 1
after the scheme was carried out and before the declaration was 2
made. 3
PART 2--OTHER PROVISIONS 4
257 Restriction on functions 5
(1) A proceeds assessment order and a pecuniary penalty order may not 6
both be made in relation to the same serious crime related activity. 7
(2) A restraining order under chapter 2 and a restraining order under 8
chapter 3 may not both be made to be in force in relation to the same 9
property at the same time. 10
258 Publication of proceedings 11
If-- 12
(a) a person has been charged with-- 13
(i) an offence in relation to a serious crime related activity; or 14
(ii) a confiscation offence; 15
and a proceeding on the charge has not started or, if started, has 16
not been completed; and 17
(b) a proceeding is started under this Act for-- 18
(i) a restraining order or a forfeiture order affecting an interest 19
of the person in property; or 20
(ii) a proceeds assessment order or a pecuniary penalty order 21
against the person; 22
the Supreme Court may make the orders it considers appropriate about the 23
publication of any matter arising under this Act. 24
s 259 151 s 261
Criminal Proceeds Confiscation Bill 2002
259 Requirements to give notice 1
(1) A regulation may prescribe the way a notice authorised or required 2
by this Act to be given to a person must be given, including by substituted 3
service. 4
(2) A person must be considered to have been given notice if all 5
reasonable efforts were made to give the notice whether or not the person 6
actually received notice. 7
260 Sentencing court not to have regard to property forfeiture or 8
pecuniary penalty 9
In deciding the sentence to be imposed on a person (the "defendant") 10
for a confiscation offence, the court must not have regard to the question of 11
whether or not-- 12
(a) the defendant's property is, or may become, the subject of a 13
forfeiture order or automatic forfeiture; or 14
(b) the defendant has been or may be ordered to pay an amount 15
under a pecuniary penalty order or a proceeds assessment order 16
or to forfeit an amount to the State under a special forfeiture 17
order. 18
261 Costs incurred on variation of forfeiture or restraining orders on 19
application by third parties 20
(1) This section applies if-- 21
(a) the Supreme Court makes an order under this Act varying a 22
forfeiture order or restraining order that is registered under a 23
corresponding law; and 24
(b) the variation is made on the application of a third party and 25
affects the interests of the third party in relation to property in the 26
other State. 27
(2) The Supreme Court may, in relation to the costs the third party 28
incurred in applying for and obtaining the variation-- 29
(a) order that the third party's actual costs be paid to the third party; 30
or 31
(b) if it is satisfied special circumstances exist, order that part only of 32
the third party's costs be paid to the third party. 33
s 262 152 s 264
Criminal Proceeds Confiscation Bill 2002
(3) The costs must be paid by a person or authority specified by the 1
Supreme Court. 2
(4) The Supreme Court may direct how the costs are to be decided. 3
(5) This section does not limit the powers of the Supreme Court to award 4
costs under any other law. 5
(6) In this section-- 6
"third party", in relation to a forfeiture order or restraining order, means a 7
person who is not the subject of the order. 8
"vary" includes limit the way in which an order applies. 9
262 Costs 10
If-- 11
(a) a person brings, or appears at, a proceeding under this Act, other 12
than under chapter 2;44 and 13
(b) the person is successful in the proceeding; and 14
(c) the court is satisfied that the person was not involved in any way 15
in the commission of the offence to which the proceeding related; 16
the court may order the State to pay all costs incurred by the person in 17
connection with the proceeding or the part of the costs decided by the 18
court. 19
20
Note--
21
In civil proceedings, the court decides costs and the costs are assessed under the
22
Uniform Civil Procedure Rules 1999.
263 Appeals 23
Without affecting any other right of appeal, any person aggrieved by an 24
order or the refusal of a court to make an order under this Act may appeal 25
against the order or refusal to the Court of Appeal. 26
264 Registration fees 27
(1) No fee is payable by the State for-- 28
44 Chapter 2 (Confiscation without conviction)
s 265 153 s 265
Criminal Proceeds Confiscation Bill 2002
(a) filing in a registry any order or instrument under this Act or any 1
instrument filed to transfer property to the State under this Act; or 2
(b) anything else for which registry fees are fixed. 3
4
Example of paragraph (b)--
5
If fees are fixed for register searches or copies of anything in a register, the
6
State need not pay the fees.
(2) In this section-- 7
"register" means a register kept at a registry. 8
"registry" means-- 9
(a) the land registry; or 10
(b) the office of anybody required or authorised under an Act to keep 11
a register about dealings with property. 12
CHAPTER 11--GENERAL 13
265 Evidentiary provision 14
(1) For this Act, each of the following certificates is evidence of what it 15
states-- 16
(a) a certificate apparently signed by the chairperson and stating a 17
stated person was or was not an authorised commission officer or 18
a commission officer at a stated time; 19
(b) a certificate apparently signed by the public trustee and stating-- 20
(i) the public trustee is in control of stated property under a 21
direction in a restraining order or another order made under 22
chapter 2 or chapter 3 that is in force; and 23
(ii) the terms of the relevant order; 24
(c) a certificate ("forfeiture certificate") apparently signed by any 25
of the following about a forfeiture order made under chapter 2 or 26
chapter 3 or the automatic forfeiture of property and identifying 27
the property to which the forfeiture order or forfeiture relates-- 28
(i) the registrar or a deputy registrar of the Supreme Court; 29
s 266 154 s 267
Criminal Proceeds Confiscation Bill 2002
(ii) a registrar or a deputy registrar of the District Court; 1
(iii) a registrar or a deputy registrar of the Childrens Court 2
constituted by a judge; 3
(iv) the clerk of the court at the place where a Magistrates Court, 4
or the Childrens Court constituted by a magistrate, makes 5
the order. 6
(2) Also, in a proceeding on an application for an order under this Act-- 7
(a) a certificate under the Drugs Misuse Act 1986, section 12845 is 8
evidence of the matters of which it is evidence in a proceeding 9
under that Act, without proof of the signature, employment or 10
appointment of the person who apparently signed the certificate; 11
and 12
(b) a certificate under the Criminal Code, section 63546 of a 13
conviction of an offence is evidence of the commission of the 14
offence by the person to whom it relates; and 15
(c) the court may, in deciding an application, have regard to the 16
transcript of any proceeding against a person for an offence to 17
which the application relates and to the evidence given in that 18
proceeding; and 19
(d) the transcript of an examination under an examination order is 20
evidence of the answers given by a person to a question put to the 21
person in the examination. 22
266 Review of Act 23
The Minister must ensure the operation of this Act is reviewed as soon as 24
practicable after 1 January 2006. 25
267 Regulation-making power 26
The Governor in Council may make regulations under this Act. 27
45 Drugs Misuse Act 1986, section 128 (Analyst's certificate)
46 Criminal Code, section 635 (Evidence of previous conviction)
s 268 155 s 268
Criminal Proceeds Confiscation Bill 2002
CHAPTER 12--TRANSITIONAL PROVISIONS, 1
REPEAL AND AMENDMENTS 2
PART 1--TRANSITIONAL PROVISIONS 3
268 Definitions for ch 12 4
In this chapter-- 5
"new forfeiture order" means a forfeiture order made under chapter 3. 6
"new order" means each of the following orders-- 7
(a) a new forfeiture order; 8
(b) a new pecuniary penalty order; 9
(c) a new restraining order; 10
(d) a new special forfeiture order. 11
"new pecuniary penalty order" means a pecuniary penalty order made 12
under chapter 3. 13
"new restraining order" means a restraining order made under chapter 3. 14
"new special forfeiture order" means a special forfeiture order made 15
under chapter 3. 16
"old Act" means the repealed Crimes (Confiscation) Act 1989. 17
"old forfeiture order" means a forfeiture order made under the old Act 18
and in force immediately before the commencement of this part. 19
"old order" means any of the following orders-- 20
(a) an old forfeiture order; 21
(b) an old pecuniary penalty order; 22
(c) an old restraining order; 23
(d) an old special forfeiture order. 24
"old pecuniary penalty order" means a pecuniary penalty order made 25
under the old Act and in force immediately before the commencement 26
of this part. 27
"old restraining order" means a restraining order made under the old Act 28
and in force immediately before the commencement of this part. 29
s 269 156 s 270
Criminal Proceeds Confiscation Bill 2002
"old special forfeiture order" means a special forfeiture order made 1
under the old Act and in force immediately before the commencement 2
of this Act. 3
269 Incomplete proceedings for old orders 4
(1) A proceeding started under the old Act for an old order and not 5
finally decided immediately before the commencement of this section may 6
be continued and decided under this Act as if it were a proceeding started 7
under this Act for a corresponding new order. 8
(2) Any step taken in the proceeding for the old order is as valid and 9
effective as if it had been taken in a proceeding for the new order. 10
(3) The court hearing the proceeding may make the orders under this Act 11
the court considers appropriate. 12
(4) However, if the proceeding was started in a court other than the 13
Supreme Court and the proceeding is a proceeding that may only be started 14
in the Supreme Court under this Act, the proceeding may be continued 15
under the old Act as if this Act had not been enacted. 16
270 Incomplete rehearing proceedings 17
(1) A rehearing started under section 39 of the old Act in relation to an 18
old forfeiture order and not finally decided immediately before the 19
commencement of this Act may be continued and decided under this Act as 20
if it were a proceeding for a rehearing started under section 177 of this 21
Act.47 22
(2) A rehearing started under section 39 of the old Act in relation to an 23
old pecuniary penalty order and not finally decided immediately before the 24
commencement of this Act may be continued and decided under this Act as 25
if it were a proceeding for a rehearing started under section 199 of this 26
Act.48 27
(3) A court rehearing a proceeding mentioned in subsection (1) or (2) 28
may make the orders a court rehearing a proceeding of the same kind may 29
make under this Act. 30
47 Section 177 (Rehearing)
48 Section 199 (Rehearing)
s 271 157 s 272
Criminal Proceeds Confiscation Bill 2002
271 Interstate orders 1
(1) An interstate forfeiture order registered under the old Act continues 2
to have effect as if it had been filed under this Act and, to the extent it has 3
not been enforced under the old Act, may be enforced under this Act 4
according to its terms. 5
(2) An interstate pecuniary penalty order registered under the old Act 6
continues to have effect as if it had been filed under this Act and, to the 7
extent it has not been enforced under the old Act, may be enforced under 8
this Act according to its terms. 9
(3) An interstate restraining order registered under the old Act continues 10
to have effect as if it had been filed under this Act and, to the extent it has 11
not been enforced under the old Act, may be enforced under this Act 12
according to its terms. 13
272 Automatic forfeiture 14
(1) Property that is liable to automatic forfeiture under the old Act is 15
taken to be liable to automatic forfeiture under this Act and any step 16
necessary to be taken for enforcing the forfeiture may be taken under this 17
Act. 18
(2) For working out when property liable to automatic forfeiture under 19
the old Act is forfeited to the State, section 16349 of this Act applies to the 20
property as if it had commenced on the day section 25 of the old Act first 21
applied to the property. 22
(3) However, if, before the commencement of this section, the forfeiture 23
period under the old Act has been extended and the extended forfeiture 24
period ends after the commencement of this section-- 25
(a) the property is forfeited to the State when the forfeiture period as 26
extended under the old Act ends; and 27
(b) the person may not apply for an extension of the forfeiture period 28
under this Act; and 29
(c) the Supreme Court may not extend the forfeiture period under 30
this Act. 31
49 Section 163 (Automatic forfeiture of restrained property)
s 273 158 s 275
Criminal Proceeds Confiscation Bill 2002
273 Old forfeiture orders 1
(1) An old forfeiture order in force immediately before the 2
commencement of this section is taken to be a new forfeiture order and any 3
step necessary to be taken for enforcing the order may be taken under this 4
Act. 5
(2) Any proceeding, including an appeal, that may be started by a person 6
because of the making of an old forfeiture order may, if the time for starting 7
the proceeding has not ended, be started under this Act as if this Act had 8
commenced on the day the old forfeiture order was made. 9
274 Old pecuniary penalty orders 10
(1) An old pecuniary penalty order is taken to be a new pecuniary 11
penalty order made by the court that made the old pecuniary penalty order 12
on the conditions stated in the old pecuniary penalty order and may be 13
enforced under this Act. 14
(2) Any proceeding, including an appeal, that may be started by a person 15
because of the making of an old pecuniary penalty order may, if the time 16
for starting the proceeding has not ended, be started under this Act as if this 17
Act had commenced on the day the old pecuniary penalty order was made. 18
275 Old restraining orders 19
(1) An old restraining order is taken to be a new restraining order made 20
by the court that made the old restraining order on the conditions stated in 21
the old restraining order and may be enforced under this Act. 22
(2) The new restraining order has effect only for the balance of the term 23
for which the old restraining order would have had effect if this Act had not 24
been enacted. 25
(3) Any proceeding, including an appeal, that may be started by a person 26
because of the making of an old restraining order may, if the time for 27
starting the proceeding has not ended, be started under this Act as if this 28
Act had commenced on the day the old restraining order was made. 29
(4) If the old restraining order was made in a court other than the 30
Supreme Court, the Supreme Court may extend the period for which the 31
restraining order is to remain in force as if the order had been made under 32
this Act. 33
s 276 159 s 278
Criminal Proceeds Confiscation Bill 2002
276 Particular orders about buying back interests in property 1
(1) An order made under section 24 of the old Act and not given effect 2
immediately before the commencement of this section is taken to be a 3
release order made under section 154 of this Act.50 4
(2) An order made under section 29(11) of the old Act and not given 5
effect immediately before the commencement of this section is taken to be 6
a buy-back order made under section 169 of this Act.51 7
(3) Anything remaining to be done to give effect to an order mentioned 8
in subsection (1) or (2) may be done in accordance with this Act after the 9
commencement. 10
277 Property under the control of the public trustee 11
Property under the control of the public trustee because of a direction in 12
an old restraining order is taken to be under the control of the public trustee 13
because of a direction in a new restraining order and may be dealt with 14
under this Act. 15
278 Persons unamenable to justice under old Act 16
(1) If a person who was unamenable to justice under the old Act 17
becomes amenable to justice after the commencement of this section, a 18
provision of this Act applying to a person who later becomes amenable to 19
justice applies to the person. 20
(2) Also, a person who, immediately before the commencement of this 21
section, was unamenable to justice under the old Act because the person 22
was found unfit for trial under the repealed Mental Health Act 1974, part 4 23
is taken to be unamenable to justice because of section 109 of this Act.52 24
(3) In addition, if a proceeding under the old Act had not been started 25
against a person who became unamenable to justice before the 26
commencement of this section, a proceeding may be started against the 27
person under this Act. 28
50 Section 154 (Order for release of property from forfeiture order)
51 Section 169 (When Supreme Court may make buy-back order)
52 Section 109 (Meaning of "unamenable to justice")
s 279 160 s 282
Criminal Proceeds Confiscation Bill 2002
279 Application for chapter 2 restraining order if property restrained 1
under old restraining order 2
(1) This Act does not prevent the State from applying to the Supreme 3
Court for a chapter 2 restraining order in relation to property that includes 4
property that is restrained under an old restraining order. 5
(2) If the Supreme Court makes a chapter 2 restraining order in relation 6
to the property to which the application relates, the Supreme Court must 7
also set aside the old restraining order. 8
(3) In this section-- 9
"chapter 2 restraining order" means a restraining order under chapter 2 10
of this Act. 11
280 Other directions, orders and requirements 12
(1) A direction given, or an order or requirement made, in a proceeding 13
under the old Act, that has not yet been complied with or given effect 14
continues to have effect under this Act as if it were given or made under 15
this Act. 16
(2) If a time was specified for compliance with the direction, order or 17
requirement, the time for complying with the requirement starts when the 18
direction, order or requirement was given or made under the old Act. 19
(3) This section does not apply to an order for which provision is 20
otherwise made under this part. 21
281 References to Crimes (Confiscation) Act 1989 22
In an Act or document, a reference to the Crimes (Confiscation) 23
Act 1989 may, if the context otherwise permits, be a reference to this Act. 24
PART 2--REPEAL 25
282 Repeal of Crimes (Confiscation) Act 1989 26
The Crimes (Confiscation) Act 1989 No. 60 is repealed. 27
s 283 161 s 286
Criminal Proceeds Confiscation Bill 2002
PART 3--AMENDMENT OF CRIME AND 1
MISCONDUCT ACT 2001 2
283 Act amended in pt 2 3
This part and schedule 3 amend the Crime and Misconduct Act 2001. 4
284 Amendment of s 4 (Act's purposes) 5
(1) Section 4, `The purposes'-- 6
omit, insert-- 7
`The main purposes'. 8
(2) Section 4 9
insert 10
`(2) The Act also has as the purpose to facilitate the commission's 11
involvement in the investigation of any confiscation related activity for the 12
enforcement of the Confiscation Act.'. 13
285 Amendment of s 5 (How Act's purposes are to be achieved) 14
Section 5-- 15
insert-- 16
`(4) Further, the commission has particular powers for investigations into 17
confiscation related activities for supporting its role under the Confiscation 18
Act.'. 19
286 Amendment of s 56 (Commission's other functions) 20
(1) Section 56(b)-- 21
renumber as section 56(c). 22
(2) Section 56-- 23
insert-- 24
`(b) a civil confiscation function;53'. 25
53 See also the Criminal Proceeds Confiscation Act 2002.
s 287 162 s 288
Criminal Proceeds Confiscation Bill 2002
287 Amendment of s 74 (Notice to produce) 1
Section 74, heading, at the end-- 2
insert-- 3
`for crime investigation'. 4
288 Insertion of new ch 3, pt 1, div 2, subdiv 1A 5
After section 74-- 6
insert-- 7
`Subdivision 1A--Confiscation related investigations 8
`74A Notice to produce for confiscation related investigation 9
`(1) This section applies only for a confiscation related investigation. 10
`(2) The chairperson may, by notice ("notice to produce") given to a 11
person, require the person, within the reasonable time and in the way stated 12
in the notice, to give an identified commission officer a stated document or 13
thing that the chairperson believes, on reasonable grounds, is relevant to a 14
confiscation related investigation. 15
`(3) The notice to produce may require the immediate production of a 16
document or thing to a stated commission officer if the chairperson 17
believes, on reasonable grounds, that delay in the production of the 18
document or thing may result in-- 19
(a) its destruction, removal or concealment; or 20
(b) serious prejudice to the conduct of the investigation. 21
`(4) The person must comply with the notice to produce, unless the 22
person has a reasonable excuse. 23
Maximum penalty--85 penalty units or 1 year's imprisonment. 24
`(5) A person does not, by complying with the notice to produce in 25
relation to the document or thing-- 26
(a) contravene a provision of an Act or a law imposing a statutory or 27
commercial obligation or restriction to maintain secrecy in 28
relation to the document or thing; or 29
(b) incur any civil liability in relation to the document or thing. 30
s 289 163 s 289
Criminal Proceeds Confiscation Bill 2002
`(6) A person who fails to comply with a notice does not commit an 1
offence if the document or thing is subject to privilege. 2
3
Note--
4
If a claim of privilege is made, the commission officer is required to consider the claim
5
under section 78B and, if the requirement is not withdrawn, the chairperson may apply
6
to a Supreme Court judge to decide the claim.
`(7) A document produced under this section is taken to have been seized 7
under a warrant under part 2.54'. 8
289 Insertion of new ch 3, pt 1, div 3, subdiv 1A 9
After section 78-- 10
insert-- 11
`Subdivision 1A--Confiscation related investigations 12
`78A Application of subdiv 1A 13
`This subdivision applies if a person claims privilege under section 74A 14
in relation to a document or thing. 15
`78B Commission officer to consider claim of privilege 16
`The commission officer must consider the claim and may withdraw the 17
requirement in relation to which the claim is made or advise the person that 18
the person may apply to, or be required to attend before, the Supreme Court 19
to establish the claim under section 195B. 20
`78C Procedure for documents subject to claim of privilege 21
`(1) If-- 22
(a) the claim is made in relation to a document or thing the person is 23
required to give or produce to the commission; and 24
(b) the document or thing is in the person's possession or the person 25
acknowledges that the document or thing is in the person's 26
possession; and 27
(c) the commission officer does not withdraw the requirement; 28
54 Part 2 (Search warrants generally)
s 290 164 s 290
Criminal Proceeds Confiscation Bill 2002
the commission officer must require the person to immediately seal the 1
document or thing and give it to the commission officer for safe keeping. 2
`(2) The person must immediately seal the document or thing (the 3
"sealed evidence") under the supervision of the commission's 4
representative. 5
Maximum penalty--85 penalty units or 1 year's imprisonment. 6
`(3) The person and the commission's representative must immediately 7
deliver the sealed evidence to a registrar of the Supreme Court to be held in 8
safe custody. 9
Maximum penalty--85 penalty units or 1 year's imprisonment. 10
`(4) The registrar must keep the sealed evidence in safe custody until-- 11
(a) application is made to a Supreme Court judge to decide the claim 12
of privilege; or 13
(b) the end of 3 court days after the day on which the document or 14
thing is given to the registrar, if an application has not been made 15
under paragraph (a); or 16
(c) the registrar is told by the person and commission representative 17
that agreement has been reached on the disposal of the sealed 18
evidence. 19
`(5) The registrar must-- 20
(a) if an application is made to a Supreme Court judge to decide the 21
claim of privilege--dispose of the sealed evidence in the way 22
ordered by the judge; or 23
(b) if an application is not made by the end of 3 court days after the 24
day on which the document or thing is given to the 25
registrar--return the sealed evidence to the person; or 26
(c) if the person and commission representative give the registrar 27
notice that an agreement on the disposal of the sealed evidence 28
has been reached--dispose of the sealed evidence in the way 29
agreed.'. 30
290 Amendment of s 86 (Search warrant applications) 31
(1) Section 86(1), from `to obtain'-- 32
omit, insert-- 33
s 291 165 s 293
Criminal Proceeds Confiscation Bill 2002
`to obtain-- 1
(a) evidence of the commission of major crime or misconduct being 2
investigated by the commission; or 3
(b) evidence that may be confiscation related evidence in relation to 4
a confiscation related activity.'. 5
(2) Section 86(4)(c), from `involved in'-- 6
omit, insert-- 7
`involved in-- 8
(i) the commission of the major crime or misconduct to which 9
the application relates; or 10
(ii) the confiscation related activity to which the application 11
relates.'. 12
291 Amendment of s 87 (Issue of search warrant) 13
Section 87(1), after `misconduct'-- 14
insert-- 15
`, or confiscation related evidence'. 16
292 Amendment of s 90 (When search warrant ends) 17
(1) Section 90(1), after `misconduct'-- 18
insert-- 19
`or confiscation related evidence'. 20
(2) Section 90(2), after `misconduct'-- 21
insert-- 22
`or confiscation related evidence'. 23
293 Amendment of s 91 (What search warrant must state) 24
Section 91(1)(b), `or misconduct'-- 25
omit, insert-- 26
`, misconduct or confiscation related activity'. 27
s 294 166 s 295
Criminal Proceeds Confiscation Bill 2002
294 Amendment of s 92 (Powers under search warrants) 1
(1) Section 92(1)(f), after `activity'-- 2
insert-- 3
`or the confiscation related activity'. 4
(2) Section 92(1)(h), after `offence'-- 5
insert-- 6
`or confiscation related evidence'. 7
(3) Section 92(1)(i), after `activity'-- 8
insert-- 9
`or confiscation related evidence'. 10
(4) Section 92(1)(j), after `activity'-- 11
insert-- 12
`or confiscation related evidence'. 13
(5) Section 92(1)(k), after `activity'-- 14
insert-- 15
`or confiscation related evidence'. 16
295 Insertion of new s 110A 17
After section 110-- 18
insert-- 19
`110A General power to seize evidence--confiscation related 20
investigation 21
`(1) This section applies if a commission officer conducting a 22
confiscation related investigation who lawfully enters a place under a 23
search warrant-- 24
(a) finds at the place a thing the officer reasonably suspects is-- 25
(i) confiscation related evidence for a confiscation related 26
activity the commission is investigating; or 27
(ii) admissible evidence of an indictable offence against the law 28
of the Commonwealth or of any State; and 29
s 296 167 s 296
Criminal Proceeds Confiscation Bill 2002
1
Note--
2
Subparagraph (ii) deals with the possibility that other evidence of offences may be
3
found at the place even though entry is made for the purpose of finding confiscation
4
related evidence.
(b) reasonably believes that it is necessary to seize the thing-- 5
(i) to prevent its loss, destruction, mutilation or concealment; 6
or 7
(ii) to prevent its use for a confiscation related activity or for 8
committing an offence of a kind mentioned in paragraph (a). 9
`(2) The officer may seize the thing. 10
`(3) However, if a person who is entitled to claim the privilege claims the 11
document or thing is subject to privilege, the commission officer must 12
consider the claim and may-- 13
(a) withdraw the requirement in relation to which the claim is made; 14
or 15
(b) advise the person that the person may apply to, or be required to 16
attend before, the Supreme Court to establish the claim under 17
section 195B.55 18
`(4) If a claim of privilege is made and the commission officer does not 19
withdraw the requirement, section 78C56 applies. 20
`(5) In this section-- 21
"privilege" does not include privilege on the ground of confidentiality.'. 22
296 Insertion of new ch 3, pt 5A 23
Chapter 3, after section 119-- 24
insert-- 25
55 Section 195B (Supreme Court judge to decide claim of privilege)
56 Section 78C (Procedure for documents subject to claim of privilege)
s 296 168 s 296
Criminal Proceeds Confiscation Bill 2002
`PART 5A--MONITORING AND SUSPENSION ORDERS 1
`Division 1--Interpretation and application 2
`119A Meaning of "financial institution" 3
`In this part-- 4
"financial institution" includes-- 5
(a) a corporation that is (or that, if it had been incorporated in 6
Australia, would be) a financial corporation within the meaning 7
of the Commonwealth Constitution, section 51(xx); and 8
(b) another entity that permits persons to deposit money with it for 9
use by, or at the direction of, the persons for gaming or betting. 10
`119B Application of part 5A 11
`This part applies only for the purposes of enhancing the commission's 12
powers under the Confiscation Act. 13
`Division 2--Monitoring orders 14
`119C Monitoring order applications 15
`(1) An authorised commission officer may apply to a Supreme Court 16
judge for an order ("monitoring order") directing a financial institution to 17
give information to a commission officer about a named person. 18
`(2) The application must-- 19
(a) be sworn and state the grounds on which the order is sought; and 20
(b) include information required under a regulation about any 21
monitoring orders issued within the previous year in relation to 22
an account held with the financial institution by the named 23
person. 24
`(3) Subsection (2)(b) applies only to-- 25
(a) information kept in a register that the authorised commission 26
officer may inspect; and 27
s 296 169 s 296
Criminal Proceeds Confiscation Bill 2002
(b) information the authorised commission officer otherwise actually 1
knows. 2
`(4) The judge may refuse to consider the application until the authorised 3
commission officer gives the judge all the information the judge requires 4
about the application in the way the judge requires. 5
6
Example--
7
The judge may require additional information supporting the application to be given by
8
statutory declaration.
`119D Making of monitoring order 9
`The Supreme Court judge may make the monitoring order only if 10
satisfied there are reasonable grounds for suspecting that the person named 11
in the application-- 12
(a) has been, or is about to be, involved in a serious crime related 13
activity; or 14
(b) has acquired directly or indirectly, or is about to acquire directly 15
or indirectly, serious crime derived property. 16
`119E What monitoring order must state 17
`(1) The monitoring order must order a financial institution to give 18
information obtained by the institution about transactions conducted 19
through an account held by the named person with the institution and 20
state-- 21
(a) the name or names in which the account is believed to be held; 22
and 23
(b) the type of information the institution is required to give; and 24
(c) the period, of not more than 3 months from the date of its 25
making, the order is in force; and 26
(d) that the order applies to transactions conducted during the period 27
stated in the order; and 28
(e) that the information is to be given to any commission officer or to 29
a stated commission officer and the way in which the information 30
is to be given. 31
`(2) In this section-- 32
"transaction conducted through an account" includes-- 33
s 296 170 s 296
Criminal Proceeds Confiscation Bill 2002
(a) the making of a fixed term deposit; and 1
(b) in relation to a fixed term deposit--the transfer of the amount 2
deposited, or any part of it, at the end of the term. 3
`119F When period stated in monitoring order starts 4
`A monitoring order has effect from the start of the day notice of the 5
order is given to the financial institution. 6
`119G Offence to contravene monitoring order 7
`A financial institution that has been given notice of a monitoring order 8
must not knowingly-- 9
(a) contravene the order; or 10
(b) provide false or misleading information in purported compliance 11
with the order. 12
Maximum penalty--1 000 penalty units. 13
`119H Existence and operation of monitoring order not to be disclosed 14
`(1) A financial institution that is or has been subject to a monitoring 15
order must not disclose the existence or the operation of the order to any 16
person other than-- 17
(a) a commission officer; or 18
(b) an officer or agent of the institution (an "institution officer"), 19
for ensuring the order is complied with; or 20
(c) a lawyer, for obtaining legal advice or representation in relation 21
to the order. 22
`(2) A person to whom the existence or operation of a monitoring order 23
has been disclosed, whether under subsection (1) or under the provision as 24
originally made or remade or otherwise, must not-- 25
(a) while the person is a commission officer, institution officer or 26
lawyer, disclose the existence or operation of the order other than 27
to another person to whom it may be disclosed under 28
subsection (1) but only for-- 29
(i) if the person is a commission officer--performing the 30
person's duties; or 31
s 296 171 s 296
Criminal Proceeds Confiscation Bill 2002
(ii) if the person is an institution officer--ensuring the order is 1
complied with or obtaining legal advice or representation in 2
relation to the order; or 3
(iii) if the person is a lawyer--giving legal advice or making 4
representations in relation to the order; or 5
(b) when the person is no longer a commission officer, institution 6
officer or lawyer, make a record of, or disclose, the existence or 7
the operation of the order in any circumstances. 8
`(3) Subsection (2) does not prevent a commission officer disclosing the 9
existence or operation of a monitoring order-- 10
(a) for, or in relation to, a legal proceeding; or 11
(b) in a proceeding before a court. 12
`(4) A commission officer can not be required to disclose to any court the 13
existence or operation of a monitoring order. 14
`(5) A person who contravenes subsection (1) or (2) commits a crime. 15
Maximum penalty--350 penalty units or 7 years imprisonment. 16
`(6) A reference in this section to disclosing the existence or operation of 17
a monitoring order to a person includes a reference to disclosing 18
information to the person from which the person could reasonably be 19
expected to infer the existence or operation of the monitoring order. 20
`(7) In this section-- 21
"officer", of a financial institution, means-- 22
(a) a secretary, executive officer or employee of the financial 23
institution; or 24
(b) anyone who, under the Confiscation Act, is a director of the 25
financial institution. 26
`Division 3--Suspension orders 27
`119I Suspension order application 28
`(1) An authorised commission officer may apply to a Supreme Court 29
judge for an order ("suspension order") directing a financial institution to 30
give information to a commission officer about a named person. 31
s 296 172 s 296
Criminal Proceeds Confiscation Bill 2002
`(2) The application-- 1
(a) may be made without notice to any person; and 2
(b) must-- 3
(i) be sworn and state the grounds on which the order is sought; 4
and 5
(ii) include information required under a regulation about any 6
suspension orders issued within the previous year in relation 7
to an account held with the financial institution by the 8
named person. 9
`(3) Subsection (2)(b)(ii) applies only to-- 10
(a) information kept in a register that the authorised commission 11
officer may inspect; and 12
(b) information the authorised commission officer otherwise actually 13
knows. 14
`(4) The judge may refuse to consider the application until the authorised 15
commission officer gives the judge all the information the judge requires 16
about the application in the way the judge requires. 17
18
Example--
19
The judge may require additional information supporting the application to be given by
20
statutory declaration.
`119J Making of suspension order 21
`The Supreme Court judge may make the suspension order only if 22
satisfied there are reasonable grounds for suspecting that the person named 23
in the application-- 24
(a) has been, or is about to be, involved in a serious crime related 25
activity; or 26
(b) has acquired directly or indirectly, or is about to acquire directly 27
or indirectly, serious crime derived property. 28
`119K What suspension order must state 29
`(1) The suspension order must order a financial institution-- 30
s 296 173 s 296
Criminal Proceeds Confiscation Bill 2002
(a) to notify a commission officer immediately of any transaction 1
that has been initiated in connection with an account held with 2
the institution by a person named in the order; and 3
(b) to notify a commission officer immediately if there are 4
reasonable grounds for suspecting that a transaction is about to 5
be initiated in connection with the account; and 6
(c) to refrain from completing or effecting the transaction for 7
48 hours, unless a named commission officer gives the financial 8
institution written consent to the transaction being completed 9
immediately. 10
`(2) In addition, the suspension order must state-- 11
(a) the name or names in which the account is believed to be held; 12
and 13
(b) the type of information the institution is required to give; and 14
(c) the period, of not more than 3 months from the date of its 15
making, the order is in force; and 16
(d) that the order applies to transactions conducted during the period 17
stated in the order; and 18
(e) that the information is to be given to any commission officer or to 19
a stated commission officer and the way in which the information 20
is to be given. 21
`(3) In this section-- 22
"transaction conducted through an account" includes-- 23
(a) the making of a fixed term deposit; and 24
(b) in relation to a fixed term deposit--the transfer of the amount 25
deposited, or any part of it, at the end of the term. 26
`119L When period stated in suspension order starts 27
`A suspension order has effect from the time notice of the order is given 28
to the financial institution. 29
`119M Contravention of suspension order 30
`A financial institution that has been given notice of a suspension order 31
must not knowingly-- 32
s 296 174 s 296
Criminal Proceeds Confiscation Bill 2002
(a) contravene the order; or 1
(b) provide false or misleading information in purported compliance 2
with the order. 3
Maximum penalty--1 000 penalty units. 4
`119N Existence and operation of suspension order not to be disclosed 5
`(1) A financial institution that is or has been subject to a suspension 6
order must not disclose the existence or the operation of the order to any 7
person other than-- 8
(a) a commission officer; or 9
(b) an officer or agent of the institution (an "institution officer"), 10
for ensuring the order is complied with; or 11
(c) a lawyer, for obtaining legal advice or representation in relation 12
to the order. 13
`(2) A person to whom the existence or operation of a suspension order 14
has been disclosed, whether under subsection (1) or under the provision as 15
originally made or remade or otherwise, must not-- 16
(a) while the person is a commission officer, institution officer or 17
lawyer, disclose the existence or operation of the order other than 18
to another person to whom it may be disclosed under 19
subsection (1) but only for-- 20
(i) if the person is a commission officer--performing the 21
person's duties; or 22
(ii) if the person is an institution officer--ensuring the order is 23
complied with or obtaining legal advice or representation in 24
relation to the order; or 25
(iii) if the person is a lawyer--giving legal advice or making 26
representations in relation to the order; or 27
(b) when the person is no longer a commission officer, institution 28
officer or lawyer, make a record of, or disclose, the existence or 29
the operation of the order in any circumstances. 30
`(3) Subsection (2) does not prevent a commission officer disclosing the 31
existence or operation of a suspension order-- 32
(a) for, or in relation to, a legal proceeding; or 33
s 297 175 s 299
Criminal Proceeds Confiscation Bill 2002
(b) in a proceeding before a court. 1
`(4) A commission officer can not be required to disclose to any court the 2
existence or operation of a suspension order. 3
`(5) A person who contravenes subsection (1) or (2) commits a crime. 4
Maximum penalty--350 penalty units or 7 years imprisonment. 5
`(6) A reference in this section to disclosing the existence or operation of 6
a suspension order to a person includes a reference to disclosing 7
information to the person from which the person could reasonably be 8
expected to infer the existence or operation of the suspension order. 9
`(7) In this section-- 10
"officer", of a financial institution, means-- 11
(a) a secretary, executive officer or employee of the financial 12
institution; or 13
(b) anyone who, under the Confiscation Act, is a director of the 14
financial institution.'. 15
297 Amendment of s 166 (Register of warrants, warrant applications 16
etc.) 17
Section 166(4)(a), after `misconduct'-- 18
insert-- 19
`or a confiscation related activity'. 20
298 Amendment of s 176 (Commission may hold hearings) 21
Section 176-- 22
insert-- 23
`(2) Subsection (1) does not authorise the commission to hold a hearing 24
for a confiscation related investigation.'. 25
299 Insertion of new ch 4, pt 2, div 4, subdiv 1A 26
After section 195-- 27
insert-- 28
s 299 176 s 299
Criminal Proceeds Confiscation Bill 2002
`Subdivision 1A--Confiscation related investigations 1
`195A Application of subdiv 1A 2
`This subdivision applies only in the context of a confiscation related 3
investigation. 4
`195B Supreme Court to decide claim of privilege 5
`(1) This section applies if a person makes a claim of privilege under 6
section 74A57 in relation to a document or thing. 7
`(2) The chairperson or the person making the claim of privilege may 8
apply to a Supreme Court judge to decide whether the claim is established 9
and, if established, whether it is to be upheld. 10
`(3) The burden of proof on the application is on the person who seeks to 11
withhold the document or thing or to prevent the exercise of authority. 12
`(4) The judge must consider submissions and decide whether the claim 13
is established. 14
`(5) If the judge decides that the claim is established on a ground of 15
public interest immunity, the judge may order the person to produce the 16
document or thing to the commission if the judge decides that, on balance, 17
the public interest is better served by producing the document or thing. 18
`(6) If the judge decides that the claim is established on a ground of 19
confidentiality, the judge must order the person to produce the document or 20
thing to the commission unless the judge decides that to produce the 21
document or thing would be against the public interest. 22
`(7) If the judge decides that the claim is established on a ground of 23
self-incrimination, the judge must order the person to produce the 24
document or thing to the commission. 25
`(8) Costs of an application made in relation to a claim of privilege are to 26
be borne by the commission, unless otherwise ordered by the judge on the 27
ground that the claim is frivolous or vexatious.'. 28
57 Section 74A (Notice to produce for confiscation related investigation)
s 300 177 s 300
Criminal Proceeds Confiscation Bill 2002
300 Amendment of sch 2 (Dictionary) 1
(1) Schedule 2, definitions "Confiscation Act", "forfeiture proceeding", 2
"notice to produce"-- 3
omit. 4
(2) Schedule 2-- 5
insert-- 6
` "civil confiscation function" means the function of investigating 7
confiscation related activities for the enforcement of the Confiscation 8
Act. 9
"Confiscation Act" means the Criminal Proceeds Confiscation Act 2002. 10
"confiscation order" means any of the following under the Confiscation 11
Act, chapter 2-- 12
(a) a restraining order; 13
(b) a forfeiture order; 14
(c) a proceeds assessment order. 15
"confiscation related activity" means an activity in relation to which a 16
confiscation order may be sought under the Confiscation Act. 17
"confiscation related evidence" means a thing or evidence of an activity 18
that may be or provide evidence of something for which a proceeding, 19
other than a proceeding for an offence, may be started under the 20
Confiscation Act, chapter 2 and includes-- 21
(a) a thing in which a person has an interest that is serious crime 22
derived property; and 23
(b) a thing in which a person has an interest that is serious crime 24
derived property of a person reasonably suspected of having been 25
engaged in a serious crime related activity; and 26
(c) evidence of a serious crime related activity; and 27
(d) evidence of illegal activity of a person reasonably suspected of 28
having engaged in a serious crime related activity; and 29
(e) property that is restrained under a restraining order under the 30
Confiscation Act. 31
s 300 178 s 300
Criminal Proceeds Confiscation Bill 2002
"confiscation related investigation" means an investigation the 1
commission is conducting for the Confiscation Act, chapter 2.58 2
"forfeiture proceeding" means-- 3
(a) a proceeding for any of the following under the Confiscation 4
Act-- 5
(i) a forfeiture order; 6
(ii) a restraining order 7
(iii) a special forfeiture order; or 8
(b) a proceeding for an order forfeiting or restraining the use of 9
property under another Act. 10
"illegally acquired property" means illegally acquired property under the 11
Confiscation Act. 12
"monitoring order" see section 119C.59 13
"notice to produce"-- 14
(a) for a crime investigation--see section 74;60 or 15
(b) for a confiscation related investigation--see section 74A. 61
16
"serious crime derived property" see the Confiscation Act, section 23.62 17
"serious crime related activity" see the Confiscation Act, section 16.63 18
"suspension order" see section 119I.64'. 19
(3) Schedule 2, definition "privilege"-- 20
insert-- 21
`(c) in the context of a confiscation related investigation-- 22
(i) legal professional privilege; or 23
(ii) public interest immunity; or 24
58 Confiscation Act, chapter 2 (Confiscation without conviction)
59 Section 119C (Monitoring order applications)
60 Section 74 (Notice to produce)
61 Section 74A (Notice to produce for confiscation related investigation)
62 Confiscation Act, section 23 (Meaning of "serious crime derived property")
63 Confiscation Act, section 16 (Meaning of "serious crime related activity")
64 Section 119I (Suspension order application)
s 301 179 s 302
Criminal Proceeds Confiscation Bill 2002
(iii) parliamentary privilege; or 1
(iv) self-incrimination.'. 2
(4) Schedule 2, definition "privilege", `either context'-- 3
omit, insert-- 4
`each context'. 5
PART 4--AMENDMENT OF DIRECTOR OF PUBLIC 6
PROSECUTIONS ACT 1984 7
301 Act amended in pt 4 8
This part amends the Director of Public Prosecutions Act 1984. 9
302 Insertion of new s 10A 10
After section 10-- 11
insert-- 12
`10A Guidelines by Attorney-General 13
`(1) For exercising the director's functions under the Criminal Proceeds 14
Confiscation Act 2002, the director is subject to any guidelines the 15
Attorney-General issues in relation to the examination of a person under an 16
examination order under that Act. 17
`(2) A guideline may not be furnished in relation to a particular case. 18
`(3) The Attorney-General must gazette the guidelines as soon as 19
practicable after issuing them. 20
`(4) Also, the Attorney-General must table a copy of the guidelines in the 21
Legislative Assembly within 14 sitting days after the guidelines are 22
gazetted.'. 23
s 303 180 s 306
Criminal Proceeds Confiscation Bill 2002
PART 5--AMENDMENT OF FINANCIAL 1
TRANSACTION REPORTS ACT 1992 2
303 Act amended in pt 5 3
This part amends the Financial Transaction Reports Act 1992. 4
304 Amendment of s 6 (Further reports of suspect transactions) 5
Section 6(2)(b)-- 6
omit, insert-- 7
`(b) may be of assistance in the enforcement of the Criminal 8
Proceeds Confiscation Act 2002.'. 9
305 Amendment of s 7 (Reports of suspect transactions not reported 10
under Commonwealth Act) 11
(1) Section 7(1)(b)-- 12
omit, insert-- 13
`(b) may be of assistance in the enforcement of the Criminal 14
Proceeds Confiscation Act 2002;'. 15
(2) Section 7(7)(b)-- 16
omit, insert-- 17
`(b) may be of assistance in the enforcement of the Criminal 18
Proceeds Confiscation Act 2002.'. 19
306 Section 8 (Protection of cash dealers etc.) 20
Section 8(2), from `for the purposes of'-- 21
omit, insert-- 22
`for the Criminal Proceeds Confiscation Act 2002, sections 250 23
and 252,65 not to have been in the possession of the information at any 24
time.'. 25
65 Criminal Proceeds Confiscation Act 2002, sections 250 (Money laundering) and
252 (Possession etc. of property suspected of being tainted property)
s 307 181 s 309
Criminal Proceeds Confiscation Bill 2002
PART 6--AMENDMENT OF POLICE POWERS AND 1
RESPONSIBILITIES ACT 2000 2
307 Act amended in pt 6 3
This part amends the Police Powers and Responsibilities Act 2000. 4
308 Amendment of s 68 (Search warrant application) 5
(1) Section 68(1)-- 6
omit, insert-- 7
`(1) A police officer may apply for a warrant to enter and search a place 8
("search warrant") to obtain-- 9
(a) evidence of the commission of an offence; or 10
(b) evidence that may be confiscation related evidence in relation to 11
a confiscation related activity.'. 12
(2) Section 68(3), example, `the Crimes (Confiscation) Act 1989, section 40'-- 13
omit, insert-- 14
`chapter 2 or chapter 3 of the Confiscation Act'. 15
(3) Section 68(3)-- 16
insert-- 17
`(c) confiscation related evidence.'. 18
(4) Section 68(5)(b), from `in relation to'-- 19
omit, insert-- 20
`in relation to-- 21
(i) the place or a person suspected of being involved in the 22
commission of the offence or suspected offence to which 23
the application relates; or 24
(ii) the confiscation related activity to which the application 25
relates.'. 26
309 Amendment of s 69 (Issue of search warrant) 27
Section 69, after `offence'-- 28
s 310 182 s 312
Criminal Proceeds Confiscation Bill 2002
insert-- 1
`or confiscation related evidence'. 2
310 Amendment of s 72 (When search warrant ends) 3
Section 72(1) and (2), after `offence'-- 4
insert-- 5
`or confiscation related evidence'. 6
311 Amendment of s 73 (What search warrant must state) 7
(1) Section 73(1)(b)(ii), `authorised; and'-- 8
omit, insert-- 9
`authorised; or 10
(iii) a confiscation related activity--brief particulars of the 11
activity; and'. 12
(2) Section 73(2), after `If'-- 13
insert-- 14
`the warrant relates to an offence and'. 15
312 Amendment of s 74 (Power under search warrants) 16
(1) Section 74(1)(f), after `if'-- 17
insert-- 18
`the warrant relates to an offence and'. 19
(2) Section 74(1)(h), after `an offence'-- 20
insert-- 21
`or confiscation related evidence'. 22
(3) Section 74(1)(i), after `an offence'-- 23
insert-- 24
`or confiscation related evidence'. 25
(4) Section 74(1)(j), after `an offence'-- 26
s 313 183 s 315
Criminal Proceeds Confiscation Bill 2002
insert-- 1
`or confiscation related evidence'. 2
(5) Section 74(1)(k), after `an offence'-- 3
insert-- 4
`or confiscation related evidence'. 5
313 Amendment of s 76 (Application of pt 2) 6
Section 76(c), first dot point-- 7
omit, insert-- 8
`· Confiscation Act'. 9
314 Amendment of s 97 (Production notices) 10
(1) Section 97(1)-- 11
omit, insert-- 12
`(1) This section applies if a police officer reasonably suspects a cash 13
dealer holds documents that may be-- 14
(a) evidence of the commission of an offence by someone else; or 15
(b) confiscation related evidence in relation to a confiscation related 16
activity involving someone else.'. 17
(2) Section 97(3)(b), after `suspected offence'-- 18
insert-- 19
`or confiscation related activity'. 20
315 Amendment of s 98 (Issue of production notice) 21
Section 98(1)(a), from `may be'-- 22
omit, insert-- 23
`may be-- 24
(i) evidence of the commission of an offence; or 25
(ii) confiscation related evidence; and'. 26
s 316 184 s 319
Criminal Proceeds Confiscation Bill 2002
316 Amendment of s 101 (Power under production notice) 1
Section 101(1)(d), after `offence'-- 2
insert-- 3
`or confiscation related evidence'. 4
317 Amendment of s 105 (Application of pt 5) 5
Section 105(1)-- 6
omit, insert-- 7
`(1) This part applies to the following within the meaning of the 8
Confiscation Act-- 9
(a) a confiscation offence; 10
(b) an interstate confiscation offence; 11
(c) a serious crime related activity.'. 12
318 Amendment of s 106 (Production order applications) 13
Section 106(1), from `relating to'-- 14
omit, insert-- 15
`relating to-- 16
(a) a confiscation offence of which a person has been found guilty; 17
or 18
(b) a confiscation offence a police officer reasonably suspects a 19
person has committed; or 20
(c) a serious crime related activity a police officer reasonably 21
suspects a person has engaged in.'. 22
319 Amendment of s 107 (Making of production orders) 23
(1) Section 107(1), `serious offence'-- 24
omit, insert-- 25
`confiscation offence or serious crime related activity'. 26
(2) Section 107(2)(a), `believed to have'-- 27
s 320 185 s 320
Criminal Proceeds Confiscation Bill 2002
omit, insert-- 1
`suspected of having'. 2
(3) Section 107(3), from `in relation to an offence'-- 3
omit, insert-- 4
`under subsection (2) or (3), the judge may have regard to the matters 5
mentioned-- 6
(a) for subsection (2), in the Confiscation Act, section 187;66 or 7
(b) for subsection (3), in the Confiscation Act, section 82.67'. 8
(4) Section 107(3), (as amended)-- 9
renumber as section 107(4). 10
(5) Section 107-- 11
insert-- 12
`(3) If an application relating to a serious crime related activity includes 13
information that the police officer reasonably suspects-- 14
(a) the person who is suspected of having engaged in the serious 15
crime related activity derived a benefit from the person's illegal 16
activity; and 17
(b) the property specified in the information is subject to the 18
effective control of the person; 19
the judge may treat any document relevant to identifying, locating or 20
quantifying that property as a property-tracking document in relation to the 21
serious crime related activity for this section.'. 22
320 Amendment of s 109 (Powers under production order) 23
Section 109(d), after `offence'-- 24
insert-- 25
`or confiscation related evidence'. 26
66 Confiscation Act, section 187 (Assessment of benefits)
67 Confiscation Act, section 82 (Matters to which Supreme Court must have regard)
s 321 186 s 324
Criminal Proceeds Confiscation Bill 2002
321 Replacement of ch 4, pt 1, hdg 1
Chapter 4, part 1, heading-- 2
omit, insert-- 3
`PART 1--MONITORING AND SUSPENSION ORDERS 4
`Division 1--Definition'. 5
322 Insertion of new ch 4, pt 1, div 2, hdg 6
Chapter 4, part 1, before section 116-- 7
insert-- 8
`Division 2--Monitoring orders'. 9
323 Amendment of s 117 (Making of monitoring order) 10
(1) Section 117(a), (b) and (c), `serious'-- 11
omit, insert-- 12
`confiscation'. 13
(2) Section 117-- 14
insert-- 15
`(d) has been, or is about to be, involved in a serious crime related 16
activity; or 17
(e) has acquired directly or indirectly, or is about to acquire directly 18
or indirectly, serious crime derived property.'. 19
324 Amendment of s 121 (Existence and operation of monitoring 20
order not to be disclosed) 21
(1) Section 121(6)-- 22
omit. 23
(2) Subsection (7)-- 24
renumber as subsection (6). 25
(3) Section 121(8)-- 26
s 325 187 s 325
Criminal Proceeds Confiscation Bill 2002
omit, insert-- 1
`(7) In this section-- 2
"officer", of a financial institution, means-- 3
(a) a secretary, executive officer or employee of the financial 4
institution; or 5
(b) anyone who, under the Confiscation Act, is a director of the 6
financial institution.'. 7
325 Insertion of new ch 4, pt 1, div 3 8
Chapter 4, part 1, after section 121-- 9
insert-- 10
`Division 3--Suspension orders 11
`121A Suspension order application 12
`(1) A police officer may apply to a Supreme Court judge for an order 13
("suspension order") directing a financial institution to give information 14
to a police officer about a named person. 15
`(2) The application-- 16
(a) may be made without notice to any person; and 17
(b) must-- 18
(i) be sworn and state the grounds on which the order is sought; 19
and 20
(ii) include information required under the responsibilities code 21
about any suspension orders issued within the previous year 22
in relation to an account held with the financial institution 23
by the named person. 24
`(3) Subsection (2)(b)(ii) applies only to-- 25
(a) information kept in a register that the police officer may inspect; 26
and 27
(b) information the police officer otherwise actually knows. 28
`(4) The judge may refuse to consider the application until the police 29
officer gives the judge all the information the judge requires about the 30
application in the way the judge requires. 31
s 325 188 s 325
Criminal Proceeds Confiscation Bill 2002
1
Example--
2
The judge may require additional information supporting the application to be given by
3
statutory declaration.
`121B Making of suspension order 4
`The Supreme Court judge may make the suspension order only if 5
satisfied there are reasonable grounds for suspecting that the person named 6
in the application-- 7
(a) has committed, or is about to commit, a confiscation offence; or 8
(b) was involved in the commission, or is about to be involved in the 9
commission, of a confiscation offence; or 10
(c) has benefited directly or indirectly, or is about to benefit directly 11
or indirectly, from the commission of a confiscation offence; or 12
(d) has been, or is about to be, involved in a serious crime related 13
activity; or 14
(e) has acquired directly or indirectly, or is about to acquire directly 15
or indirectly, serious crime derived property. 16
`121C What suspension order must state 17
`(1) The suspension order must order a financial institution-- 18
(a) to notify a police officer immediately of any transaction that has 19
been initiated in connection with an account held with the 20
institution by a person named in the order; and 21
(b) to notify a police officer immediately if there are reasonable 22
grounds for suspecting that a transaction is about to be initiated 23
in connection with the account; and 24
(c) to refrain from completing or effecting the transaction for 25
48 hours, unless a named police officer gives the financial 26
institution written consent to the transaction being completed 27
immediately. 28
`(2) In addition, the suspension order must state-- 29
(a) the name or names in which the account is believed to be held; 30
and 31
(b) the type of information the institution is required to give; and 32
s 325 189 s 325
Criminal Proceeds Confiscation Bill 2002
(c) the period, of not more than 3 months from the date of its 1
making, the order is in force; and 2
(d) that the order applies to transactions conducted during the period 3
stated in the order; and 4
(e) that the information is to be given to any police officer or to a 5
stated police officer and the way in which the information is to be 6
given. 7
`(3) In this section-- 8
"transaction conducted through an account" includes-- 9
(a) the making of a fixed term deposit; and 10
(b) in relation to a fixed term deposit--the transfer of the amount 11
deposited, or any part of it, at the end of the term. 12
`121D When period stated in suspension order starts 13
`A suspension order has effect from the time notice of the order is given 14
to the financial institution. 15
`121E Contravention of suspension order 16
`A financial institution that has been given notice of a suspension order 17
must not knowingly-- 18
(a) contravene the order; or 19
(b) provide false or misleading information in purported compliance 20
with the order. 21
Maximum penalty--1 000 penalty units. 22
`121F Existence and operation of suspension order not to be disclosed 23
`(1) A financial institution that is or has been subject to a suspension 24
order must not disclose the existence or the operation of the order to any 25
person other than-- 26
(a) a police officer; or 27
(b) an officer or agent of the institution (an "institution officer"), 28
for ensuring the order is complied with; or 29
s 325 190 s 325
Criminal Proceeds Confiscation Bill 2002
(c) a lawyer, for obtaining legal advice or representation in relation 1
to the order. 2
`(2) A person to whom the existence or operation of a suspension order 3
has been disclosed, whether under subsection (1) or under the provision as 4
originally made or remade or otherwise, must not-- 5
(a) while the person is a police officer, institution officer or lawyer, 6
disclose the existence or operation of the order other than to 7
another person to whom it may be disclosed under subsection (1) 8
but only for-- 9
(i) if the person is a police officer--performing the person's 10
duties; or 11
(ii) if the person is an institution officer--ensuring the order is 12
complied with or obtaining legal advice or representation in 13
relation to the order; or 14
(iii) if the person is a lawyer--giving legal advice or making 15
representations in relation to the order; or 16
(b) when the person is no longer a police officer, institution officer or 17
lawyer, make a record of, or disclose, the existence or the 18
operation of the order in any circumstances. 19
`(3) Subsection (2) does not prevent a police officer disclosing the 20
existence or operation of a suspension order-- 21
(a) for, or in relation to, a legal proceeding; or 22
(b) in a proceeding before a court. 23
`(4) A police officer can not be required to disclose to any court the 24
existence or operation of a suspension order. 25
`(5) A person who contravenes subsection (1) or (2) commits a crime. 26
Maximum penalty--350 penalty units or 7 years imprisonment. 27
`(6) A reference in this section to disclosing the existence or operation of 28
a suspension order to a person includes a reference to disclosing 29
information to the person from which the person could reasonably be 30
expected to infer the existence or operation of the suspension order. 31
`(7) In this section-- 32
"officer", of a financial institution, means-- 33
(a) a secretary, executive officer or employee of the financial 34
institution; or 35
s 326 191 s 327
Criminal Proceeds Confiscation Bill 2002
(b) anyone who, under the Confiscation Act, is a director of the 1
financial institution.'. 2
326 Amendment of s 420 (Application of pt 3) 3
(1) Section 420(2)-- 4
insert-- 5
`(f) a thing seized by a police officer under a property seizure order 6
under the Confiscation Act.'. 7
(2) Section 420-- 8
insert-- 9
`(3) However, to the extent this part imposes an obligation on a police 10
officer to keep seized things in a safe place, this part does apply to a thing 11
mentioned in subsection (2)(f) that is reasonably capable of being moved.'. 12
327 Amendment of schedule 4 (Dictionary) 13
(1) Schedule 4, definitions "Confiscation Act", "forfeiture proceeding", 14
"serious offence" and "tainted property"-- 15
omit. 16
(2) Schedule 4-- 17
insert-- 18
` "Confiscation Act" means the Criminal Proceeds Confiscation Act 2002. 19
"confiscation order" means a confiscation order under the Confiscation 20
Act. 21
"confiscation offence" means either of the following under the 22
Confiscation Act-- 23
(a) a confiscation offence; 24
(b) an interstate confiscation offence. 25
"confiscation related activity" means an activity for which a confiscation 26
order may be sought under the Confiscation Act. 27
"confiscation related evidence" means a thing or evidence of an activity 28
that may be or provide evidence of something for which a proceeding, 29
other than a proceeding for an offence, may be started under the 30
Confiscation Act, chapter 2 or chapter 3, and includes-- 31
s 327 192 s 327
Criminal Proceeds Confiscation Bill 2002
(a) a thing in which a person has an interest that is serious crime 1
derived property; and 2
(b) a thing in which a person has an interest that is illegally acquired 3
property of a person reasonably suspected of having been 4
engaged in a serious crime related activity; and 5
(c) evidence of a serious crime related activity; and 6
(d) evidence of illegal activity of a person reasonably suspected of 7
having engaged in a serious crime related activity; and 8
(e) property that is restrained under an assets restraining order under 9
the Confiscation Act. 10
"forfeiture proceeding" means-- 11
(a) a proceeding for a forfeiture order or a restraining order under 12
the Confiscation Act; or 13
(b) a proceeding for an order forfeiting or restraining the use of 14
property under another Act. 15
"illegally acquired property" means property that is illegally acquired 16
property under the Confiscation Act. 17
"property tracking document" means-- 18
(a) a document relevant to identifying, locating or quantifying-- 19
(i) property of a person who committed a confiscation offence; 20
or 21
(ii) property of a person a police officer reasonably suspects 22
committed a confiscation offence; or 23
(iii) tainted property in relation to a confiscation offence; or 24
(iv) property of a person a police officer reasonably suspects is 25
or has engaged in a serious crime related activity; or 26
(v) property a police officer reasonably suspects is serious 27
crime derived property; or 28
(b) a document relevant to identifying or locating a document 29
necessary for the transfer of-- 30
(i) property of a person who committed a confiscation offence; 31
or 32
(ii) property of a person that a police officer reasonably suspects 33
committed a confiscation offence; or 34
s 328 193 s 328
Criminal Proceeds Confiscation Bill 2002
(iii) tainted property in relation to a confiscation offence; or 1
(iv) property of a person a police officer reasonably suspects is 2
or has been engaged in a serious crime related activity; or 3
(v) property a police officer reasonably suspects is illegally 4
acquired property derived from a serious crime related 5
activity. 6
"serious crime derived property" see Confiscation Act, section 23.68 7
"serious crime related activity" see the Confiscation Act, section 16.69 8
"suspension order" see section 121A.70 9
"tainted property" see the Confiscation Act, section 104.71'. 10
PART 7--OTHER ACTS AMENDED 11
328 Other Acts amended 12
Schedule 4 amends the Acts it mentions. 13
68 Confiscation Act, section 23 (Meaning of "serious crime derived property")
69 Confiscation Act, section 16 (Meaning of "serious crime related activity")
70 Section 121A (Suspension order application)
71 Confiscation Act, section 104 (Meaning of "tainted property")
194
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 1 1
EXAMPLES 2
section 7 3
PART 1--ILLEGALLY ACQUIRED PROPERTY 4
EXAMPLES 5
1 Example 1 6
(1) A acquires $40 000 as the proceeds of an illegal activity. 7
(2) A uses the $40 000 to buy land from B. 8
(3) The land is illegally acquired property. 9
(4) The money paid to B for the property continues to be illegally 10
acquired property. 11
(5) A sells the land to C for $50 000. 12
(6) The land continues to be illegally acquired property. 13
(7) The $50 000 C paid for the land is illegally acquired property. 14
(8) A uses the $50 000 paid for the land by C to buy a car from D. 15
(9) The car becomes illegally acquired property and the $50 000 A used 16
to buy it continues to be illegally acquired property, unless the purchase 17
was for sufficient consideration from an innocent person. 18
2 Example 2 19
(1) A acquires $25 000 as the proceeds of an illegal activity. 20
(2) A uses the $25 000 to buy a car. 21
(3) The car is illegally acquired property. 22
(4) A sells the car to B for its market value of $22 000. 23
(5) B does not know, and has no reason to suspect, the car is illegally 24
acquired property. 25
195
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 1 (continued)
(6) The car, now in the hands of B, stops being illegally acquired 1
property. 2
(7) The money B paid to A for the car is illegally acquired property. 3
(8) B sells the car to C, a used car dealer, who then sells it to A. 4
(9) When A buys the car from C, the car again becomes illegally 5
acquired property. 6
PART 2--PROCEEDS ASSESSMENT EXAMPLE 7
3 Example 1 8
(1) A is found to have engaged in the serious crime related activity of 9
procuring another person to engage in prostitution over 5 years. 10
(2) Money from engaging in the serious crime related activity was used 11
by A-- 12
(a) to lead a flamboyant lifestyle costing, on average, $60 000 for 13
each year; and 14
(b) to pay off a mortgage on the mansion A lives in and a block of 15
income producing home units. 16
(3) The mansion and home units were bought in the 5 years. 17
(4) A-- 18
(a) had no assets at the start of the 5 years; and 19
(b) can not show a source of property gained in the 5 years other than 20
income from the units, which produced an annual net income 21
of $20 000. 22
(5) The mansion and units are worth $1 000 000. 23
(6) Under section 82(1) and 8372-- 24
72 Sections 82 (Matters to which Supreme Court must have regard) and 83 (How
particular amounts may be treated)
196
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 1 (continued)
(a) the $1 000 000 current value of the mansion and units is derived 1
proceeds; and 2
(b) the amount of $200 000, made up of the $60 000 mentioned in 3
subsection (2)(a) less the $20 000 mentioned in subsection (4)(b) 4
for each year is derived proceeds. 5
PART 3--TAINTED PROPERTY EXAMPLES 6
4 Example 1 7
(1) A is convicted of the confiscation offences of producing and 8
possessing a dangerous drug. 9
(2) A owned lot 1 and grew the dangerous drug on adjacent lot 2. 10
A gained access to lot 2 through lot 1. 11
(3) A camped on lot 1 while working at growing the dangerous drug and 12
was found on lot 1 in possession of 5 kg of the dangerous drug. 13
(4) Lot 1 was used in connection with the commission of the 14
confiscation offence of producing a dangerous drug. 15
(5) Lot 1 is tainted property under section 104(1)(a).73 16
(6) Lot 2 was used in the commission of the confiscation offence of 17
producing a dangerous drug. 18
(7) Lot 2 is also tainted property under section 104(1)(a). 19
5 Example 2 20
(1) A is convicted of the confiscation offences of-- 21
(a) supplying a dangerous drug; and 22
(b) carrying on the business of unlawfully trafficking in a dangerous 23
drug. 24
(2) A used a motor vehicle to transport the drug to a proposed buyer. 25
73 Section 104 (Meaning of "tainted property")
197
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 1 (continued)
(3) Whether the drug was on A or in A's motor vehicle, the motor 1
vehicle was used in connection with the commission of each offence 2
mentioned in subsection (1). 3
(4) The motor vehicle is tainted property under section 104(1)(a). 4
6 Example 3 5
(1) A is convicted of the confiscation offence of official corruption. 6
(2) A gave B, an officer of the public service, a race horse valued at 7
$150 000 for B to destroy an official file. 8
(3) Because of the destruction of the file, A was able to have A's 9
lawfully acquired land rezoned. 10
(4) Before the rezoning the land was valued at $200 000. After the 11
rezoning the land was valued at $1 000 000. 12
(5) The race horse is derived by B from the commission of the 13
confiscation offence of official corruption. 14
(6) The race horse is tainted property under section 104(1)(a) or (c). 15
(7) If the land is sold by A for $1 000 000, $800 000 is tainted property 16
under section 104(1)(c). 17
7 Example 4 18
(1) A is convicted of the confiscation offence of concealing property 19
reasonably suspected of being tainted property. 20
(2) A came into possession of motor vehicle parts (the "stolen parts") 21
that A knew or had reason to suspect were stolen. 22
(3) A used the stolen parts to build 2 complete motor vehicles after later 23
buying the rest of the necessary parts with the intention of combining them 24
with the stolen parts. 25
(4) All parts were used in, or in connection with, the commission of the 26
confiscation offence of which A was convicted. 27
(5) Before A was charged with the offence, A sold 1 motor vehicle for 28
$30 000 and banked the money. 29
198
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 1 (continued)
(6) A was still in possession of the other motor vehicle. 1
(7) The motor vehicle kept in A's possession is derived from property 2
used in, or in connection with, the commission of the confiscation offence 3
and is tainted property under section 104(1)(b). 4
(8) The vehicle is also derived directly from the commission of the 5
confiscation offence and is tainted property under section 104(1)(c). 6
(9) The banked $30 000 and its accrued interest is property derived by A 7
from property used in, or in connection with, the commission of the 8
confiscation offence and is tainted property under section 104(1)(b). 9
(10) The $30 000 (and interest) is also derived from the commission of 10
the confiscation offence and is tainted property under section 104(1)(c). 11
(11) If A uses the $30 000 (and interest) to buy another vehicle, the other 12
vehicle is derived from the commission of the confiscation offence and is 13
tainted property under section 104(1)(c). 14
8 Example 5 15
(1) A is convicted of the confiscation offence of producing a dangerous 16
drug. 17
(2) A used A's warehouse to produce the dangerous drug. 18
(3) A sells the warehouse and uses the proceeds to buy a house. 19
(4) The house is property derived by A from property used in, or in 20
connection with, the commission of the confiscation offence of producing a 21
dangerous drug. 22
(5) The house is tainted property under section 104(1)(b). 23
9 Example 6 24
(1) A is convicted of the confiscation offence of carrying on the business 25
of trafficking in a dangerous drug. 26
(2) On A's arrest, police seized $100 000 in cash derived by A from the 27
commission of the serious offence. 28
(3) The police deposit the $100 000 in a bank account in the name of the 29
commissioner of the police service pending the outcome of the trial. 30
199
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 1 (continued)
(4) The banked $100 000 and its accrued interest is derived from the 1
commission of the confiscation offence. 2
(5) The property is tainted property under section 104(1)(c). 3
PART 4--ASSESSMENT OF BENEFITS EXAMPLES 4
10 Example 1 5
(1) A and B are separately convicted of confiscation offences of carrying 6
on the business of unlawfully trafficking in a dangerous drug. 7
(2) C bought the dangerous drug from B on 5 occasions for $2 000--a 8
total of $10 000. 9
(3) B gave the money to A. 10
(4) A paid B a total of $1 000. 11
(5) B acted solely as an agent or courier of A. 12
(6) A is-- 13
(a) the supplier of the dangerous drug; and 14
(b) the principal with whom C, through B, dealt. 15
(7) Under section 187(1)(a) and (b) and 193, the benefit derived by A is
74
16
$10 000. 17
(8) Under section 187(1)(a), the benefit derived by B is $1 000. 18
11 Example 2 19
(1) A is convicted of the confiscation offence of carrying on unlawful 20
bookmaking over 5 years. 21
(2) In the 5 years, A-- 22
(a) received a total of $1 000 000 from punters placing bets; and 23
74 Sections 187 (Assessment of benefits) and 193 (Expenses and outgoings)
200
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 1 (continued)
(b) paid a total of $400 000 to winning punters. 1
(3) Under section 187(1)(a) and 193, the benefit derived by A is 2
$1 000 000. 3
12 Example 3 4
(1) A is convicted of the confiscation offence of carrying on unlawful 5
bookmaking over 5 years. 6
(2) Money from the business of unlawful bookmaking was used by A-- 7
(a) to lead a flamboyant lifestyle costing, on average, $60 000 for 8
each year; and 9
(b) to pay off a mortgage on the mansion A lives in and a block of 10
income producing home units. 11
(3) The mansion and home units were bought in the 5 years. 12
(4) A-- 13
(a) had no assets at the start of the 5 years; and 14
(b) can not show a source of property gained in the 5 years other than 15
income from the units, which produced an annual net income 16
of $20 000. 17
(5) The mansion and units are worth $1 000 000. 18
(6) Under section 187(1), 188, 189 and 19075-- 19
(a) the $1 000 000 current value of the mansion and units is a 20
derived benefit; and 21
(b) the amount of $200 000, made up of the $60 000 mentioned in 22
subsection (2)(a) less the $20 000 mentioned in subsection (4)(b) 23
for each year is a derived benefit. 24
75 Sections 187 (Assessment of benefits), 188 (Procedure if application relating
to 1 confiscation offence), 189 (Procedure if application relating to more
than 1 confiscation offence) and 190 (Property that may be taken into account for
assessment)
201
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 1 (continued)
13 Example 4 1
(1) A is convicted of the confiscation offence of carrying on unlawful 2
bookmaking over 5 years. 3
(2) A carried on the business by-- 4
(a) taking all bets on credit; and 5
(b) paying all winning bets and receiving all losing bets at the end of 6
each week. 7
(3) The total value of all bets placed with A in the 5 years was 8
$1 000 000. 9
(4) The total value of all losing bets received by A in the 5 years was 10
$600 000. 11
(5) Under section 187(1)(a), the benefit derived by A is $600 000. 12
14 Example 5 13
(1) A is convicted of producing a dangerous drug, that is, cannabis. 14
(2) A had grown and sold 1 000 marijuana plants. 15
(3) Each cannabis plant, on average, yielded 0.5 kg of saleable material. 16
(4) The market value of the cannabis in the form sold was $2 500 for 17
0.5 kg. 18
(5) Under section 187(1)(c)(i), the benefit derived by A was $2 500 000. 19
15 Example 6 20
(1) A is convicted of the confiscation offence of concealing property 21
reasonably suspected of being tainted property. 22
(2) A came into possession of motor vehicle parts (the "stolen parts") 23
that A knew or had reason to suspect were stolen. 24
(3) A used the stolen parts to build 2 complete motor vehicles after later 25
buying the rest of the necessary parts with the intention of combining them 26
with the stolen parts. 27
(4) Before A was charged with the offence, A sold 1 motor vehicle for 28
$30 000 and banked the money. 29
202
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 1 (continued)
(5) A was still in possession of the other motor vehicle. 1
(6) Under section 187(1)(a) and 192, the benefit derived by A is-- 2
(a) the banked $30 000 and its accrued interest; and 3
(b) the value of the motor vehicle still in A's possession. 4
203
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 2 1
OFFENCES 2
sections 29 and 99 3
PART 1--SECTION 29 OFFENCES 4
1. Any offence punishable by imprisonment for 5 years or more and 5
involving any of the following-- 6
(a) murder; 7
(b) piracy; 8
(c) kidnapping for ransom; 9
(d) extortion; 10
(e) bribery; 11
(f) a secret commission; 12
(g) loss of revenue to the State; 13
(h) corruption; 14
(i) stealing, receiving, fraud or other dishonesty; 15
(j) conspiracy to obstruct, prevent, pervert or defeat the course of 16
justice; 17
(k) money laundering; 18
(l) prostitution; 19
(m) gambling; 20
(n) child pornography; 21
(o) a dangerous drug as defined under the Drugs Misuse Act 1986; 22
(p) trafficking in weapons. 23
2. An ancillary offence, to an offence mentioned in item 1, punishable by 24
imprisonment for 5 years or more. 25
204
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 2 (continued)
PART 2--CONFISCATION OFFENCES 1
1. Classification of Computer Games and Images Act 1995 2
2. Classification of Films Act 1991 3
3. Classification of Publications Act 1991, other than part 2A 4
4. Drugs Misuse Act 1986, section 10A 5
5. Fair Trading Act 1989, part 3, divisions 1 and 276 6
6. Fisheries Act 1994 7
7. Health (Drugs and Poisons) Regulation 1996 8
8. Liquor Act 1992, part 6, division 377 9
9. Nature Conservation Act 1992 10
10. Weapons Act 1990. 11
76 Fair Trading Act 1989, part 3 (Trade practices), divisions 1 (General rules) and
division 2 (Unsolicited goods and services)
77 Liquor Act 1992, part 6 (Obligatory provisions and offences), division 3 (Provisions
concerning sale of liquor by unlicensed persons or on unlicensed premises)
205
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 3 1
MINOR AMENDMENTS OF CRIME AND 2
MISCONDUCT ACT 2001 3
section 283 4
1 Section 15(b), `were'-- 5
omit, insert-- 6
`was'. 7
2 Section 31(1), `criminal activity'-- 8
omit, insert-- 9
`major crime'. 10
3 Section 44, heading, after `other'-- 11
insert-- 12
`than'. 13
4 Section 46(5) to (7)-- 14
renumber as section 46(3) to (5). 15
5 Section 49(3)(a), `; and'-- 16
omit, insert-- 17
`; or'. 18
6 Section 73(5), note, from `the person may'-- 19
omit, insert-- 20
206
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 3 (continued)
`the person may apply to, or be required to attend before, the Supreme Court to 1
establish the claim under section 196.78'. 2
7 Section 74(8), after `document'-- 3
insert-- 4
`or thing'. 5
8 Section 75(5), note, from `the person may'-- 6
omit, insert-- 7
`the person may apply to, or be required to attend before, the Supreme Court to 8
establish the claim under section 196.79'. 9
9 Section 78(5), `subsection (1)'-- 10
omit, insert-- 11
`subsection (2)'. 12
10 Section 78(5), `82(1)(d)'-- 13
omit, insert-- 14
`82(1)(c)'. 15
11 Section 80, `the privilege'-- 16
omit, insert-- 17
`the claim'. 18
78 Section 196 (Supreme Court to decide claim of privilege or reasonable excuse)
79 Section 196 (Supreme Court to decide claim of privilege or reasonable excuse)
207
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 3 (continued)
12 Section 81(5)(b), `by end'-- 1
omit, insert-- 2
`by the end'. 3
13 Section 82(1)(c) and footnote-- 4
omit, insert-- 5
`(c) to establish a reasonable excuse or claim of privilege under 6
section 72 or 74.80'. 7
14 Section 82(1), note-- 8
omit. 9
15 Section 94(2), `the privilege'-- 10
omit, insert-- 11
`the claim'. 12
16 Section 111(3)(b), `the privilege'-- 13
omit, insert-- 14
`the claim'. 15
17 Section 113(1)-- 16
insert-- 17
`(d) an order has been made about the thing under section 156(4).81'. 18
80 Section 72 (Power to require information or documents) or 74 (Notice to produce)
81 Section 156 (Report on covert search)
208
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 3 (continued)
18 Section 120, `Libraries and Archives Act 1988'-- 1
omit, insert-- 2
`Public Records Act 2002'. 3
19 Section 125(f), `section 140(4);' and footnote-- 4
omit, insert-- 5
`section 124(3); '.
82
6
20 Section 141(d), `section 124(2);' and footnote-- 7
omit, insert-- 8
`section 140(2);83'. 9
21 Section 145(2)-- 10
insert-- 11
`(da)a misconduct tribunal hearing a matter, in its original or appellate 12
jurisdiction, in which the relevant information is evidence; or'. 13
22 Section 152-- 14
insert-- 15
`(g) any conditions imposed under section 151(2).'. 16
23 Section 162-- 17
insert-- 18
`(f) any conditions imposed under section 161(2).'. 19
82 Section 124 (Issue of surveillance warrant)
83 Section 140 (Issue of surveillance warrant)
209
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 3 (continued)
24 Section 186(1)(a), `section 78 or 81' and footnote-- 1
omit, insert-- 2
`section 7884'. 3
25 Section 188(1), `at a commission hearing because'-- 4
omit, insert-- 5
`to an identified commission officer or at a commission hearing and'. 6
26 Section 188(1), after `document', second mention-- 7
insert-- 8
`or thing'. 9
27 Section 188(2), after `thing', first mention-- 10
insert-- 11
`to an identified commission officer under a notice to produce under 12
section 75 or'. 13
28 Section 188(2)(a), after `thing', first mention-- 14
insert-- 15
`to the commission officer or'. 16
29 Section 188(2)(b), after `thing'-- 17
insert-- 18
`to the commission officer or'. 19
30 Section 188-- 20
insert-- 21
84 Section 78 (Procedure for documents subject to claim of privilege)
210
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 3 (continued)
`(4) Section 197 does not apply to a document or thing produced under 1
this section.'. 2
31 Section 194-- 3
insert-- 4
`(1A) The presiding officer must decide whether or not there is a 5
reasonable excuse. 6
`(1B) The presiding officer must decide, after hearing the person's 7
submissions-- 8
(a) that the requirement will not be insisted on; or 9
(b) that the officer is not satisfied the person has a reasonable 10
excuse.'. 11
32 Section 194(2), after `reasonable excuse'-- 12
insert-- 13
`based on a claim of privilege against self-incrimination'. 14
33 Section 196, heading, `or reasonable excuse'-- 15
omit. 16
34 Section 196(1), after `thing'-- 17
insert-- 18
`or under section 19285 in relation to a refusal to answer a question'. 19
35 Section 197, heading, `documents and things'-- 20
omit, insert-- 21
`documents, things or statements'. 22
85 Section 192 (Refusal to answer question)
211
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 3 (continued)
36 Section 197(1)(a)-- 1
omit, insert-- 2
`(a) before answering a question put to the person by the commission 3
or a commission officer or producing a document or thing or a 4
written statement of information to the commission or a 5
commission officer, the person claims that answering the 6
question or producing the document, thing or statement might 7
tend to incriminate the person; and'. 8
37 Section 197(1)(b) and (c), `document or thing'-- 9
omit, insert-- 10
`document, thing or statement'. 11
38 Section 197(2) and (3), `document or thing'-- 12
omit, insert-- 13
`document, thing or statement'. 14
39 Section 212(a) and (b), after `person;'-- 15
insert-- 16
`or'. 17
40 Section 216(3), `information'-- 18
omit, insert-- 19
`complaint'. 20
41 Section 221(2), after `imprint of'-- 21
insert-- 22
`the'. 23
212
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 3 (continued)
42 After section 221-- 1
insert-- 2
`221A Commission is a statutory body 3
`The commission is a statutory body under the Financial Administration 4
and Audit Act 1997.'. 5
43 Section 251(1)-- 6
omit, insert-- 7
`(1) The chairperson is the commission's chief executive officer.'. 8
44 Section 293(2)(a), `; or'-- 9
omit, insert-- 10
`; and'. 11
45 Section 305-- 12
insert-- 13
`(3) In this section-- 14
"ineligible person" includes a commission officer or former commission 15
officer.'. 16
46 Section 312, `becomes'-- 17
omit, insert-- 18
`is or becomes'. 19
47 Section 312-- 20
insert-- 21
`(4) In this section-- 22
"ineligible person" includes a commission officer or former commission 23
officer.'. 24
213
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 3 (continued)
48 Section 317(5), after `commission'-- 1
insert-- 2
`or unit of public administration'. 3
49 Section 335, heading, after `officials'-- 4
insert-- 5
`and others'. 6
50 Section 335, after `publication'-- 7
insert-- 8
`to or'. 9
51 Section 340(6), `commissioner officer'-- 10
omit, insert-- 11
`commission officer'. 12
52 Section 371-- 13
insert-- 14
`(2) The commission must ensure any recording made or photograph 15
taken under a warrant issued under the repealed Criminal Justice Act 1989 16
or the repealed Crime Commission Act 1997 or a transcript or copy made 17
from information obtained under the warrant is destroyed as soon as 18
practicable after it is no longer required. 19
`(3) Subsection (2) does not prevent information or other matter being 20
preserved for any period or indefinitely if, in the chairperson's opinion, it is 21
relevant to-- 22
(a) any offence of which someone has been convicted if there is a 23
possibility that an issue about the conviction may arise; or 24
(b) an ongoing investigation. 25
214
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 3 (continued)
`(4) The Public Records Act 2002 and the Freedom of Information Act 1
1992 do not apply to records mentioned in this section.'. 2
53 After section 375-- 3
insert-- 4
`375A Orders made by criminal justice commission or Queensland 5
crime commission 6
`It is declared that an order made by the criminal justice commission or a 7
presiding member of a QCC hearing as defined under the repealed Crime 8
Commission Act 1997 before the commencement and in force immediately 9
before the commencement-- 10
(a) continues to have effect after the commencement according to its 11
terms; and 12
(b) may be varied, revoked or otherwise dealt with, and enforced, as 13
if the order had been made by the commission under this Act. 14
`375B Confidential material under the Crime Commission Act 15
`(1) This section applies if, under section 11186 of the repealed Crime 16
Commission Act 1997, a person could not publish an answer, document, 17
thing or information mentioned in that section without the written consent 18
of the Queensland Crime Commission. 19
`(2) To remove any doubt, it is declared that the commission may give 20
written consent to the publication.'. 21
54 Schedule 2, definition "ombudsman"-- 22
omit. 23
86 Crime Commission Act 1997, section 111 (Publication of names, evidence etc.)
215
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 4 1
OTHER ACTS AMENDED 2
section 328 3
BILLS OF SALE AND OTHER INSTRUMENTS ACT 1955 4
1 Section 15-- 5
omit, insert-- 6
`15 Registration of confiscation orders 7
`(1) A confiscation order made in relation to chattels of a person or 8
creating a charge over the chattels of a person may be registered. 9
`(2) If the confiscation order is a restraining order, registration of the 10
order has effect for the duration of the restraining order. 11
`(3) Otherwise, registration has effect until the confiscation order is 12
discharged. 13
`(4) The chief executive must, on receipt of a request accompanied by a 14
certified copy of the order, include in the register particulars of the order for 15
the chattels that may be prescribed under a regulation. 16
`(5) In this section-- 17
"confiscation order" means any of the following under the Criminal 18
Proceeds Confiscation Act 2002-- 19
(a) a restraining order; 20
(b) a forfeiture order; 21
(c) a pecuniary penalty order; 22
(d) a proceeds assessment order.'. 23
216
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 4 (continued)
DRUGS MISUSE ACT 1986 1
1 Section 84 2
Section 84(4), from `tainted' to `Act 1989'-- 3
omit, insert-- 4
`tainted property under the Criminal Proceeds Confiscation Act 2002'. 5
DUTIES ACT 2001 6
1 Section 134(a)-- 7
omit, insert-- 8
`(a) any of the following under the Criminal Proceeds Confiscation 9
Act 2002-- 10
(i) third party order; 11
(ii) an exclusion order; 12
(iii) an innocent interests exclusion order; 13
(iv) a buy-back order; 14
(v) a request under section 175;87 or'. 15
2 Section 391(a)-- 16
omit, insert-- 17
`(a) any of the following under the Criminal Proceeds Confiscation 18
Act 2002-- 19
(i) third party order; 20
(ii) an exclusion order; 21
(iii) an innocent interests exclusion order; 22
87 Criminal Proceeds Confiscation Act 2002, section 175 (If Attorney-General asked to
return property)
217
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 4 (continued)
(iv) a buy-back order; 1
(v) a request under section 175;88 or'. 2
FORESTRY ACT 1959 3
1 Section 82G(4), `Crimes (Confiscation) Act 1989'-- 4
omit, insert-- 5
`Criminal Proceeds Confiscation Act 2002'. 6
GOVERNMENT OWNED CORPORATIONS ACT 1993 7
1 Section 136(8), `Crimes (Confiscation) Act 1989'-- 8
omit, insert-- 9
`Criminal Proceeds Confiscation Act 2002'. 10
LIENS ON CROPS OF SUGAR CANE ACT 1931 11
1 After section 7D-- 12
insert-- 13
`7DA Registration of confiscation orders 14
`(1) A confiscation order made in relation to a security interest registered 15
under this Act or creating a charge over a security interest registered under 16
this Act may be registered. 17
`(2) If the confiscation order is a restraining order, registration of the 18
order has effect for the duration of the restraining order. 19
`(3) Otherwise, registration has effect until the confiscation order is 20
discharged. 21
88 Criminal Proceeds Confiscation Act 2002, section 175 (If Attorney-General asked to
return property)
218
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 4 (continued)
`(4) The chief executive must, on receipt of a request accompanied by a 1
certified copy of the order, include in the register particulars of the order for 2
the security interest that may be prescribed under a regulation. 3
`(5) In this section-- 4
"confiscation order" means any of the following under the Criminal 5
Proceeds Confiscation Act 2002-- 6
(a) a restraining order; 7
(b) a forfeiture order; 8
(c) a pecuniary penalty order; 9
(d) a proceeds assessment order.'. 10
LOCAL GOVERNMENT ACT 1993 11
1 Section 690(7), `Crimes (Confiscation of Profits) Act 1989'-- 12
omit, insert-- 13
`Criminal Proceeds Confiscation Act 2002'. 14
MOTOR VEHICLES SECURITIES ACT 1986 15
1 Section 7A-- 16
omit, insert-- 17
`7A Registration of confiscation orders 18
`(1) A confiscation order applying to a motor vehicle of a person or 19
creating a charge over a motor vehicle of a person may be registered under 20
this Act. 21
`(2) If the confiscation order is a restraining order, registration of the 22
order has effect for the duration of the restraining order. 23
`(3) Otherwise, registration has effect until the confiscation order is 24
discharged. 25
219
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 4 (continued)
`(4) A person who deals with a motor vehicle affected by a confiscation 1
order registered under this section is taken to know of the confiscation 2
order for the purposes of the Criminal Proceeds Confiscation Act 2002, 3
section 52 or 143.89 4
`(5) The chief executive must, on receipt of a request accompanied by a 5
certified copy of the confiscation order, include in the register particulars of 6
the confiscation order for the motor vehicle that may be prescribed under a 7
regulation. 8
`(6) In this section-- 9
"confiscation order" means any of the following under the Criminal 10
Proceeds Confiscation Act 2002-- 11
(a) a restraining order; 12
(b) a forfeiture order; 13
(c) a pecuniary penalty order; 14
(d) a proceeds assessment order.'. 15
PROPERTY AGENTS AND MOTOR DEALERS ACT 2000 16
1 Section 596, heading, `Crimes (Confiscation) Act 1989'-- 17
omit, insert-- 18
`Criminal Proceeds Confiscation Act 2002'. 19
2 Section 596, `Crimes (Confiscation) Act 1989'-- 20
omit, insert-- 21
`Criminal Proceeds Confiscation Act 2002'. 22
89 Criminal Proceeds Confiscation Act 2002, sections 52 (Contravention of restraining
order) and 143 (Contravention of restraining order)
220
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 4 (continued)
PROSTITUTION ACT 1999 1
1 Schedule 4, definition "disqualifying offence", paragraph (a)(i)-- 2
omit, insert-- 3
`(i) the Criminal Proceeds Confiscation Act 2002, 4
section 250;90'. 5
WATER ACT 2000 6
1 Section 585(7), `Crimes (Confiscation) Act 1989'-- 7
omit, insert-- 8
`Criminal Proceeds Confiscation Act 2002'. 9
WITNESS PROTECTION ACT 2000 10
1 Section 32(2), `Crimes (Confiscation) Act 1989'-- 11
omit, insert-- 12
`Criminal Proceeds Confiscation Act 2002'. 13
WORKCOVER QUEENSLAND ACT 1996 14
1 Section 367(7), `Crimes (Confiscation) Act 1989'-- 15
omit, insert-- 16
`Criminal Proceeds Confiscation Act 2002'. 17
90 Criminal Proceeds Confiscation Act 2002, section 250 (Money laundering)
221
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 5 1
DICTIONARY 2
section 3 3
"account" means a facility or arrangement through which a financial 4
institution accepts deposits or allows withdrawals and includes a 5
facility or arrangement for-- 6
(a) a fixed term deposit; and 7
(b) a safety deposit box. 8
"activity" includes activities. 9
"ancillary", offence to an offence, means-- 10
(a) an offence of conspiring to commit the offence; or 11
(b) an offence of receiving or assisting someone else to enable the 12
other person to escape punishment for the offence; or 13
(c) an offence of attempting to commit the offence. 14
15
Note for paragraph (b)--
16
See the Criminal Code, section 10.
17
Note for paragraph (c)--
18
The definition does not contain the equivalent of paragraph (b) of the
19
corresponding definition in the Proceeds of Crime Act 1987 (Cwlth) because
20
of the Criminal Code, section 7.
"appropriate officer" see section 12. 21
"authorised commission officer" means an authorised commission officer 22
under the Crime and Misconduct Act 2001, section 272.91 23
"automatic forfeiture" means forfeiture to the State of property because 24
of the conviction of a person for a serious criminal offence. 25
"benefit"-- 26
(a) for chapter 2--see section 21; or 27
91 Crime and Misconduct Act, section 272 (Authorised commission officer)
222
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 5 (continued)
(b) for chapter 3--see section 101.92 1
"benefit derived"-- 2
(a) for chapter 2--see section 21; or 3
(b) for chapter 3--see section 102. 93
4
"buy-back order" means a buy-back order under section 169.94 5
"chairperson" means the chairperson of the commission. 6
"charge", of an offence, see section 105.95 7
"civil jurisdiction" in relation to an amount that is the limit of a 8
Magistrates Court's civil jurisdiction, means an amount equal to the 9
maximum amount that may be claimed in a personal action in the civil 10
jurisdiction of a Magistrates Court. 11
"commission" means the Crime and Misconduct Commission. 12
"commission officer" means a commission officer under the Crime and 13
Misconduct Act 2001. 14
"conceal" includes attempt to conceal. 15
"confiscation offence" see section 99. 96
16
"confiscation order" means-- 17
(a) a forfeiture order; or 18
(b) a pecuniary penalty order; or 19
(c) a proceeds assessment order. 20
"control", property under a direction under an order under this Act, 21
includes manage property. 22
"controlled substance" see the Drugs Misuse Act 1986. 23
92 Sections 20 (Meaning of "benefit") and 101 (Meaning of "benefit")
93 Sections 21 (Meaning of "benefit derived") and 102 (Meaning of "benefit derived")
94 Section 169 (When Supreme Court may make buy-back order)
95 Section 105 (Meaning of "charge" if complaint made)
96 Section 99 (Meaning of "confiscation offence")
223
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 5 (continued)
"convicted", of a confiscation offence, means convicted as defined under 1
section 10697 of a confiscation offence. 2
"corresponding law" means a law of another State that is prescribed 3
under a regulation to be a law that corresponds to this Act. 4
"dangerous drug" see the Drugs Misuse Act 1986, section 4.98 5
"dealing" with property includes-- 6
(a) acquiring the property; and 7
(b) disposing of the property; and 8
(c) encumbering the property; and 9
(d) if property is a debt--making a payment to anyone to reduce the 10
amount of the debt; and 11
(e) removing the property from Queensland; and 12
(f) receiving or making a gift of the property; and 13
(g) vesting the property in a person while administering the estate of 14
a deceased; and 15
(h) dealing with the property in another way; and 16
(i) attempting to do a thing mentioned in paragraph (a), (b), (c), (d), 17
(e), (f) or (g) or to deal with property in another way. 18
"de facto partner" means either 1 of 2 persons of the same or a different 19
gender who are living together, or have lived together, as a couple but 20
are not legally married to each other or related by family. 21
"derived" includes-- 22
(a) directly or indirectly derived; and 23
(b) realised. 24
"director" of a corporation-- 25
(a) includes-- 26
97 Section 106 (Meaning of "convicted" of offence)
98 Drugs Misuse Act 1986, section 4 (Definitions)
224
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 5 (continued)
(i) if the corporation is incorporated for a public purpose by a 1
law of the Commonwealth or a State--a member of the 2
body corporate; and 3
(ii) any person occupying or acting in the position of director of 4
the corporation, by whatever name called and whether or 5
not validly appointed to occupy or properly authorised to act 6
in the position; and 7
(iii) other than as provided by paragraph (b), any person under 8
whose directions or instructions the directors of the 9
corporation are accustomed to act; but 10
(b) does not include a person under whose directions or instructions 11
the directors of the corporation are accustomed to act only 12
because the directors act on advice given by that person in the 13
proper performance of functions attaching to the person's 14
professional capacity. 15
"DPP" means the director of public prosecutions under the Director of 16
Public Prosecutions Act 1984. 17
"effective control" see section 20.99 18
"encumbrance" over property includes any interest, mortgage, charge, 19
right, claim and demand in relation to the property. 20
"examination order" see-- 21
(a) for chapter 2--section 38(1)(c) or (d); or 22
(b) for chapter 3--see section 130(c) or (d).100 23
"exclusion order" means an exclusion order under section 68.101 24
"executive officer" of a corporation means any person, by whatever name 25
called and whether or not the person is a director of the corporation, 26
who is concerned, or takes part, in the management of the corporation. 27
"file" a document or order includes register the document or order. 28
"financial institution" includes-- 29
99 Section 20 (Meaning of "effective control" of property)
100 Sections 38 (Particular orders Supreme Court may make) and 130 (Particular orders
Supreme Court may make)
101 Section 68 (Making of exclusion order)
225
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 5 (continued)
(a) a corporation that is (or that, if it had been incorporated in 1
Australia, would be) a financial corporation within the meaning 2
of the Commonwealth Constitution, section 51(xx); and 3
(b) another entity that permits persons to deposit money with it for 4
use by, or at the direction of, the persons for gaming, betting or 5
another purpose. 6
"forfeiture certificate" see section 265.102 7
"forfeiture order" means-- 8
(a) for chapter 2--a forfeiture order made under chapter 2; or 9
(b) for chapter 3--a forfeiture order made under chapter 3; or 10
(c) otherwise--a forfeiture order made under chapter 2 or chapter 3. 11
"gift", of property includes a transfer for consideration considerably below 12
the higher of-- 13
(a) the prevailing market price for the property; or 14
(b) the consideration the transferor paid for the property. 15
"illegal activity" see section 15.103 16
"illegally acquired property" see section 22.104 17
"innocent interest exclusion order" see-- 18
(a) for chapter 2--section 73; or 19
(b) for chapter 3--section 158.105 20
"interstate confiscation offence" means an offence against the law, 21
including the common law, of another State, in relation to which an 22
interstate forfeiture order or an interstate pecuniary penalty order may 23
be made under a corresponding law of that State. 24
102 Section 265 (Evidentiary provision)
103 Section 15 (Meaning of "illegal activity")
104 Section 22 (Meaning of "illegally acquired property")
105 Sections 73 (Making of innocent interest exclusion order) and 158 (Making of
innocent interest exclusion order)
226
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 5 (continued)
"interstate forfeiture order" means an order made under a corresponding 1
law that is declared under a regulation to be an interstate forfeiture 2
order for this definition. 3
"interstate pecuniary penalty order" means an order made under a 4
corresponding law that is declared under a regulation to be an 5
interstate pecuniary penalty order for this definition. 6
"interstate restraining order" means an order made under a 7
corresponding law that is declared under a regulation to be an 8
interstate restraining order for this definition. 9
"law enforcement agency" means an agency that is a declared law 10
enforcement agency under the Police Powers and Responsibilities Act 11
2000. 12
"Legal Aid" means Legal Aid Queensland. 13
"Legal Aid Act" means the Legal Aid Queensland Act 1997. 14
"money" means money in the form of cash. 15
"money laundering" means the offence against section 250. 106
16
"money order" see the Supreme Court of Queensland Act 1991, 17
schedule 2. 18
"monitoring order" means a monitoring order under either of the 19
following-- 20
(a) the Crime and Misconduct Act 2001, section 119C;107 21
(b) the Police Powers and Responsibilities Act 2000, section 116.108 22
"owner" of an interest in property includes a person who has effective 23
control of the interest. 24
"pecuniary penalty order" see section 178.109 25
106 Section 250 (Money laundering)
107 Crime and Misconduct Act 2001, section 119C (Monitoring order applications)
108 Police Powers and Responsibilities Act 2000, section 116 (Monitoring order
applications)
109 Section 178 (Pecuniary penalty order application)
227
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 5 (continued)
"prescribed respondent" see-- 1
(a) for chapter 2, part 3--section 28;110 or 2
(b) for chapter 3, part 3--section 116;111 or 3
(c) for chapter 3, part 5--section 161; or
112
4
(d) for chapter 4--section 200.113 5
"proceeds", in relation to an activity, see section 18.114 6
"proceeds assessment order" see section 77.115 7
"property", for chapter 2, see section 19. 116
8
9
Note--
10
For the meaning of property generally, see the Acts Interpretation Act 1954, section 36
11
(Meaning of commonly used words and expressions).117
"property particulars order" see-- 12
(a) for chapter 2--section 38(1)(f); or 13
(b) for chapter 3--section 130(f).118 14
"quash", a conviction, see section 107. 119
15
"reasonably suspect" means suspect on grounds that are reasonable in the 16
circumstances. 17
110 Section 28 (Application for restraining order)
111 Section 116 (Definitions for pt 3)
112 Section 161 (Definitions for pt 5)
113 Section 200 (Application for special forfeiture order)
114 Section 18 (Meaning of "proceeds")
115 Section 77 (Application for proceeds assessment order)
116 Section 19 (Meaning of "property")
117 The definition is as follows--
"property" means any legal or equitable estate or interest (whether present or
future, vested or contingent, or tangible or intangible) in real or personal
property of any description (including money), and includes things in action.
118 Sections 38 (Particular orders Supreme Court may make) and 130 (Particular orders
Supreme Court may make)
119 Section 107 (Meaning of "quash" a conviction)
228
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 5 (continued)
"related", of an offence, see section 108.120 1
"related by family", of 2 persons living together as a couple, means the 2
persons are related to each other and, if the persons were married to 3
each other, the relationship would be a prohibited relationship within 4
the meaning of the Marriage Act 1961 (Cwlth), section 23.121 5
"release order" see-- 6
(a) for chapter 2--section 64; or 7
(b) for chapter 3--see section 154.122 8
"relevant contract" see section 200.123 9
"relevant person" see-- 10
(a) for chapter 2, part 4, division 2--section 81; or 11
(b) for chapter 3, part 6, division 3--section 187.124 12
"restrained property" means-- 13
(a) for chapter 2--property restrained under a restraining order 14
under chapter 2; or 15
(b) for chapter 3--property restrained under a restraining order 16
under chapter 3; or 17
(c) otherwise--property restrained under a restraining order made 18
under chapter 2 or chapter 3. 19
"restraining order" means-- 20
(a) for chapter 2--a restraining order made under chapter 2; or 21
(b) for chapter 3--a restraining order made under chapter 3; or 22
(c) otherwise--a restraining order made under chapter 2 or 23
chapter 3. 24
120 Section 108 (Meaning of "related" offence)
121 Marriage Act 1923 (Cwlth), section 23 (Grounds on which marriages are void)
122 Sections 64 (Order for release of property from forfeiture order) and 154 (Order for
release of property from forfeiture order)
123 Section 200 (Application for special forfeiture order)
124 Sections 81 (Application of div 3) and 187 (Assessment of benefits)
229
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 5 (continued)
"serious crime derived property" see section 23.125 1
"serious crime related activity" see section 16.126 2
"serious criminal offence" see section 17.127 3
"serious drug offence" means any of the following, whether dealt with on 4
indictment or summarily-- 5
(a) an offence against the Drugs Misuse Act 1986, part 2 for which a 6
person is liable on conviction to imprisonment for at least 7
20 years; 8
(b) money laundering committed in relation to property that is 9
tainted property in relation to an offence mentioned in 10
paragraph (a); 11
(c) an offence that is an ancillary offence to an offence mentioned in 12
paragraph (a) or (b). 13
"special forfeiture order" see section 202.128 14
"spouse" includes a de facto partner. 15
"sufficient consideration" in relation to property means a consideration 16
that, having regard solely to commercial considerations, reflects the 17
value of the interest. 18
"suspects", for chapters 2, 3 and 4, includes-- 19
(a) believes; and 20
(b) knows. 21
"suspension order" means a suspension order under either of the 22
following-- 23
(a) the Crime and Misconduct Act 2000, section 119I;129 24
125 Section 23 (Meaning of "serious crime derived property")
126 Section 16 (Meaning of "serious crime related activity")
127 Section 17 (Meaning of "serious criminal offence")
128 Section 202 (Making of special forfeiture order)
129 Crime and Misconduct Act 2001, section 119I (Suspension order application)
230
Criminal Proceeds Confiscation Bill 2002
SCHEDULE 5 (continued)
(b) the Police Powers and Responsibilities Act 2000, 1
section 121A.130 2
"tainted property" see section 104.131 3
"third party order" see section 165.132 4
"transaction" in property includes any kind of dealing with property 5
whether in Queensland or otherwise. 6
7
Example--
8
Receiving a gift.
"transfer" of property includes-- 9
(a) for an interest in land to be transferred from the State--grant; 10
and 11
(b) if the property is an object--give. 12
"unamenable to justice", see section 109.133 13
"weapon" see the Weapons Act 1990, section 5 or schedule 2. 14
15
© State of Queensland 2002
130 Police Powers and Responsibilities Act 2000, section 121A (Suspension order
application)
131 Section 104 (Meaning of "tainted property")
132 Section 165 (Third party protection from automatic forfeiture)
133 Section 109 (Meaning of "unamenable to justice")
AMENDMENTS TO BILL
1
Criminal Proceeds Confiscation Bill 2002
CRIMINAL PROCEEDS CONFISCATION
BILL 2002
AMENDMENTS AGREED TO IN COMMITTEE
1 Clause 2--
At page 20, lines 5 to 9--
omit, insert--
`2 Commencement
`(1) This Act, other than the following provisions, commences on
1 January 2003--
(a) chapter 12, part 3A;
(b) section 283 and schedule 3, items 49 and 50;
(c) section 328 and schedule 4, to the extent the schedule amends the
Trustee Companies Act 1968.
`(2) Schedule 3, items 49 and 50 are taken to have commenced on
1 January 2002.
`(3) The following provisions commence on assent--
(a) chapter 12, part 3A;
(b) section 283;
(c) section 328 and schedule 4, to the extent the schedule amends the
Trustee Companies Act 1968.'.
2 Clause 30--
At page 34, after line 7--
insert--
`(e) a lawyer representing anyone mentioned in paragraphs (a)
to (d).'.
2
Criminal Proceeds Confiscation Bill 2002
3 Clause 121--
At page 81, after line 4--
insert--
`(e) a lawyer representing anyone mentioned in paragraphs (a)
to (d).'.
4 Clause 296--
At page 168, lines 19 to 21--
omit, insert--
` `(2) The application--
(a) may be made without notice to any party; and
(b) must--
(i) be sworn and state the grounds on which the order is sought;
and
(ii) include information required under a regulation about any'.
5 Clause 300--
(1) At page 177, lines 24 and 25, `serious crime derived'--
omit, insert--
`illegally acquired'.
(2) At page 178, lines 4 to 8--
omit, insert--
`(a) a proceeding for a forfeiture order or a restraining order under
the Confiscation Act; or'.
6 After clause 300--
At page 179, after line 5--
insert--
`PART 3A--AMENDMENT OF CRIMINAL CODE
3
Criminal Proceeds Confiscation Bill 2002
`300A Code amended in pt 3A
`This part amends the Criminal Code.
`300B Amendment of s 1 (Definitions)
`Section 1--
insert--
` "DPP presenter", for chapter 60,1 see section 559A.'.
`300C Insertion of new s 559A
`Chapter 60, before section 560--
insert--
`559A Definition for ch 60
`In this chapter--
"DPP presenter" means a person, other than a Crown prosecutor,
appointed or employed in, or engaged by, the Office of the Director of
Public Prosecutions who is authorised in writing by the director of
public prosecutions to present an indictment for the director.'.
`300D Amendment of s 560 (Presenting indictments)
`(1) Section 560(2), after `Crown Law Officer'--
insert--
`, a Crown prosecutor'.
`(2) Section 560(3), `the director of public prosecutions'--
omit, insert--
`a Crown Law Officer'.
`(3) Section 560(4), `director of public prosecutions'--
omit, insert--
`Crown Law Officer'.
1 Chapter 60 (Indictments)
4
Criminal Proceeds Confiscation Bill 2002
`(4) Section 560--
insert--
`(5) Also, if an indictment is signed by a person authorised to sign the
indictment under this section, a DPP presenter may present the indictment
to the court stated in the indictment.'.
`300E Amendment of s 561 (Ex officio informations)
`(1) Section 561, heading, `informations'--
omit, insert--
`indictments'.
`(2) Section 561(1), after `may'--
insert--
`sign and'.
`(3) Section 561(2), from `An' to `jurisdiction may'--
omit, insert--
`A Crown prosecutor or a person appointed by the Governor in Council
to sign and present indictments in any court of criminal jurisdiction may
sign and'.
`(4) Section 561--
insert--
`(3) Also, if an indictment is signed by a person authorised to sign the
indictment under this section, a DPP presenter may present the indictment
to the court stated in the indictment.'.
`300F Amendment of s 562 (Arrest of person charged in ex officio
information)
`Section 562, heading, `information'--
omit, insert--
`indictment'.
5
Criminal Proceeds Confiscation Bill 2002
`300G Amendment of s 563 (Nolle prosequi)
`Section 563(2), `An officer'--
omit, insert--
`A Crown prosecutor or a person'.
`300H Amendment of s 695 (Practice to be applied on ex officio
information)
`Section 695, heading, `information'--
omit, insert--
`indictment'.
`300I Amendment of pt 9, heading (Transitional provisions)
`Part 9, heading, after `TRANSITIONAL'--
insert--
`AND VALIDATION'.
`300J Insertion of new pt 9, ch 77
`Part 9--
insert--
`CHAPTER 77--VALIDATION PROVISION FOR
CRIMINAL PROCEEDS CONFISCATION ACT 2002
`714 Validation provision for Criminal Proceeds Confiscation
Act 2002--presentation of indictment
`(1) This section applies to an indictment presented before the
commencement of this section by a person, appointed or employed in, or
engaged by, the Office of the Director of Public Prosecutions, who was not
authorised under an Act to present the indictment.
`(2) The indictment is taken to have been presented by the director of
public prosecutions.
6
Criminal Proceeds Confiscation Bill 2002
`(3) Any proceedings taken, or other thing done, in relation to the
indictment is taken to be as valid as if the proceedings were taken, or other
thing done, in relation to an indictment presented by the director of public
prosecutions.'.'.
7 After clause 322--
At page 186, after line 9--
insert--
`322A Amendment of s 116 (Monitoring order application)
`Section 116(2)--
omit, insert--
`(2) The application--
(a) may be made without notice to any party; and
(b) must--
(i) be sworn and state the grounds on which the order is sought;
and
(ii) include information required under the responsibilities code
about any monitoring orders issued within the previous year
in relation to an account held with the financial institution
by the named person.'.'.
8 Clause 327--
At page 191, line 14, after `proceeding",'--
insert--
` "property-tracking document",'.
9 Schedule 4--
At page 220, after line 5--
insert--
7
Criminal Proceeds Confiscation Bill 2002
`TRUSTEE COMPANIES ACT 1968
1 Schedule 2, part 2, entry for ANZ Executors & Trustee Company
Limited, paragraph (b), from `and no shares' to `minor'--
omit.
2 Schedule 2, part 2, entry for ANZ Executors & Trustee Company
Limited, paragraphs (c) and (d)--
omit.
3 Schedule 2, part 2, entry for ANZ Executors & Trustee Company
Limited, paragraph (e)--
renumber as paragraph (c).
4 Schedule 2, part 2, entry for Permanent Trustee Company
Limited, paragraph (a)--
omit.
5 Schedule 2, part 2, entry for Permanent Trustee Company
Limited, paragraph (b), `(b)'--
omit.
6 Schedule 2, part 2, entry for Permanent Trustee Company
Limited, paragraph (b), `$5 000 000'--
omit, insert--
`$2 000 000'.
7 Schedule 2, part 2, entry for Perpetual Trustees Australia Limited,
paragraph (b), from `and no shares' to `minor'--
omit.
8
Criminal Proceeds Confiscation Bill 2002
8 Schedule 2, part 2, entry for Perpetual Trustees Australia Limited,
paragraphs (c) and (d)--
omit.
9 Schedule 2, part 2, entry for Perpetual Trustees Queensland
Limited, paragraph (b), from `and no shares' to `minor'--
omit.
10 Schedule 2, part 2, entry for Perpetual Trustees Queensland
Limited, paragraph (c)--
omit.
11 Schedule 2, part 2, entry for Trust Company of Australia Limited,
paragraph (a)--
omit, insert--
`(a) A member must not be the beneficial holder of more than 15% of
the capital of the company from time to time on issue.'.
12 Schedule 2, part 2, entry for Trust Company of Australia Limited,
paragraphs (b) to (d)--
omit.
13 Schedule 2, part 2, entry for Trust Company of Australia Limited,
paragraph (e)--
renumber as paragraph (b).'.
10 After schedule 4--
After page 220--
insert--
9
Criminal Proceeds Confiscation Bill 2002
`SCHEDULE 4A
`DE FACTO PARTNER
schedule 5, definition "de facto partner"
`1 Meaning of "de facto partner"
`(1) In this Act, a reference to a "de facto partner" is a reference to
either 1 of 2 persons who are living together as a couple on a genuine
domestic basis but who are not married to each other or related by family.
`(2) In deciding whether 2 persons are living together as a couple on a
genuine domestic basis, any of their circumstances may be taken into
account, including, for example, any of the following circumstances--
(a) the nature and extent of their common residence;
(b) the length of their relationship;
(c) whether or not a sexual relationship exists or existed;
(d) the degree of financial dependence or interdependence, and any
arrangement for financial support;
(e) their ownership, use and acquisition of property;
(f) the degree of mutual commitment to a shared life, including the
care and support of each other;
(g) the care and support of children;
(h) the performance of household tasks;
(i) the reputation and public aspects of their relationship.
`(3) No particular finding in relation to any circumstance is to be
regarded as necessary in deciding whether 2 persons are living together as a
couple on a genuine domestic basis.
`(4) Two persons are not to be regarded as living together as a couple on
a genuine domestic basis only because they have a common residence.
`(5) For subsection (1)--
(a) the gender of the persons is not relevant; and
10
Criminal Proceeds Confiscation Bill 2002
(b) a person is related by family to another person if the person and
the other person would be within a prohibited relationship within
the meaning of the Marriage Act 1961 (Cwlth), section 23B, if
they were parties to a marriage to which that section applies.
`(6) This schedule and the definition "de facto partner" in the dictionary
in schedule 5 expire on the commencement of the Discrimination Law
Amendment Act 2002, section 4.'.
11 Schedule 5--
(1) At page 223, lines 19 to 21--
omit, insert--
` "de facto partner" see schedule 4A.2'.
(2) At page 228, lines 2 to 5--
omit.
(3) At page 229, line 15, from `includes'--
omit, insert--
`includes--
(a) a former spouse; and
(b) a person who is or has been a de facto partner.'.
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