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Crimes (Confiscation of Profits) Amendment
CRIMES (CONFISCATION OF PROFITS)
AMENDMENT BILL 1994
EXPLANATORY NOTE
GENERAL OUTLINE
Objective of the Legislation
The object of the Bill is to enhance and strengthen the Crimes
(Confiscation of Profits) Act 1989. In the 1980's, the Standing Committee
of Attorneys-General developed a co-operative scheme for the confiscation
of the proceeds of all serious offences. The essence of the scheme was that
the proceeds of serious crime, and property used in its commission would
be liable to court ordered confiscation after conviction. All jurisdictions
have now introduced complementary legislation.
The Bill addresses some of the recommendations of a Review
Committee established by the Attorney-General to examine legislation of
other Australian States and the Commonwealth with a view to improving
the operation of the Crimes (Confiscation of Profits) Act 1989.
Reasons for the Bill
The need for this legislation is:--
· To apply the automatic forfeiture provisions of the
Commonwealth Proceeds of Crime legislation;
· To clarify and broaden some of the present sections of the Act;
· To make both substantive and consequential amendments to the
Act to give proper effect to the changes adopted from the
Commonwealth Proceeds of Crime legislation and also make the
Queensland Act more effective.
Examples have been inserted as a guide to the courts in understanding
the definition of "tainted property" and also to illustrate that the notion of a
benefit to an offender means a gross benefit and not a net benefit, when an
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Crimes (Confiscation of Profits) Amendment
"assessment of benefits" derived from an offence is being considered by a
court.
A new category of "serious offences" has been introduced into the Bill
which includes serious drug offences under the Drugs Misuse Act 1986
which carry 20 years or more imprisonment as their penalty. In respect of
such offences, if a restraining order has been made against property, an
automatic forfeiture to the Crown will occur six months after conviction,
which period may be extended by a further three months by the Court,
unless it is shown that the property restrained was acquired lawfully and
was not used in connection with the offence. Similar provisions operate
effectively under the Commonwealth Proceeds of Crime Act and have been
adapted either totally or in part in the Australian Capital Territory, New
South Wales, South Australia and Western Australia.
Automatic forfeiture provisions require a reversal of the normal onus of
proof in that the onus is placed upon the owner of the property to satisfy the
court that the property is not tainted by having been acquired unlawfully or
used in connection with the offence. It is considered this is one situation
where the criterion of "adequate justification" as provided for in the
Legislative Standards Act 1992 is apt. The Bill contains a number of
safeguards for the benefit particularly of third parties who might otherwise
be innocent victims of restraining orders or of the property dealings of the
defendant.
Estimated Cost for Government Implementation
There will be no cost for Government. The Bill should enhance revenue
through the extension of its provisions to situations not presently covered
by the Act.
Consultation
The Report of the Review Committee established by the
Attorney-General was circulated to the legal profession peak bodies and to
the Queensland Council for Civil Liberties.
The initial draft Bill was circulated to similar organisations and
associations. Some changes were made as a result of submissions
received. A copy of the Bill was circulated to the Litigation Reform
Commission.
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Crimes (Confiscation of Profits) Amendment
Details of specific clauses are as follows:--
PART I--PRELIMINARY
Clause 1 sets out the citation of the Act.
Clause 2 provides that the proposed Act will commence on a date to be
proclaimed.
Clause 3 states that this Act amends the Crimes (Confiscation of Profits)
Act 1989.
Clause 4 changes the short title of the Principal Act (as amended by this
Act) to "Crimes (Confiscation) Act 1989".
Clause 5 sets out the principal objects of the Act.
Clause 6(1) omits the definitions of certain expressions, some of which
are to be relocated elsewhere in the Act in a modified form.
Clause 6(2) inserts new definitions for specified terms.
Clause 6(3) omits the existing sub-sections 3(2) to (8) of the Act. These
matters are now specifically defined in the new proposed Sections 3D, 3E,
3F, 3G, 3H and 3J inserted by Cl. 7 of this amending Bill.
Clause 7 inserts new sub-sections. 3A to 3J into the Act which provide
for the following matters:
3A Allows for the use of examples to explain the operation and
application of the Act's provisions, in accordance with the
principles contained in section 14D of the Acts Interpretation Act
1954.
3B "appropriate officer"--has been amended to include the Director
of Prosecutions. It clarifies the role of that person in relation to
the administration of the Act.
3C "benefit derived"--extends the term to include a benefit derived
by a third party at the principal's request or direction.
3D "charge"--has been defined to clarify the situation where a
person has, or is taken to have, absconded.
3E "convicted of offence"--a person is to be treated as if convicted if
any of the specified situations apply.
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Crimes (Confiscation of Profits) Amendment
3F "effective control"--has been given the same definition as it
previously had in sub-sections 3(7) and (8) of the existing Act.
3G "quash a conviction"--a conviction is taken to be quashed if any
of the specified situations apply.
3H "related offence"--Substantially re-states, with a modification
relating to the same series of acts or omissions, the present
definition in section 3(6).
3I "tainted property"--this definition has been extended to remove
an anomaly in the existing definition which prevents the
confiscation of the proceeds of a sale of property used in or in
connection with, the commission of a serious offence by
including property derived from such property.
3J ("unamendable to justice")--sets out the various situations in
which, for the purposes of this Act, a person becomes
unamenable to justice.
Clause 8 is an amendment to the heading to Part 2 (heading) to include
"Automatic Forfeiture".
Clause 9 omits Divisions 1 and 2 (sections 6 to 12) of Part 2 of the Act
and replaces them with the following provisions:
Section 6: Provides the statutory basis for the making of
applications for forfeiture orders and pecuniary penalty
orders.
Section 6A: Requires notice of an application for such an order to be
given by the applicant to the respondent and other
parties, the applicant has reason to believe have an
interest in the relevant property.
Section 6B: The following may appear and present evidence at a
hearing to determine an application:
· a convicted person in respect of whose conviction an
application for a forfeiture order is made;
· a third party who claims an interest in the property, the
subject of an application for a forfeiture order;
· a person against whom an application for a pecuniary
penalty order is made.
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Crimes (Confiscation of Profits) Amendment
Section 6C: Allows the amendment of an application and sets out the
requisite procedure and requirements.
Section 6D: Outlines the procedure to be followed in disposing of an
application.
Section 7: Places restrictions on the powers of a Magistrates Court
to make orders under this Act analogous to the limits on
that Court's jurisdiction in the Magistrates Courts Act
1921.
Section 8: Provides the power of a Court to make a forfeiture order
in respect of tainted property and sets out certain matters
for the Court's consideration when determining the
matter.
Section 8A: Allows the Court to make an order, which order
specifies the nature, extent and value of a particular
interest in the subject property, permitting a person
holding an interest in that property to buy it back under
section 11A of the Act.
Section 8B: Inserts into the Act the machinery on which automatic
forfeiture of restrained property in connection with a
serious drug offence is based. The provision sets out the
requirements for, and procedures to be followed in
respect of, such automatic forfeiture.
Section 9: Describes the manner in which forfeited property vests
in the State.
Section 9A: Sets out the procedures to be followed in recording the
forfeiture of property to the State and the obligations
imposed on persons in possession of forfeited property
or certificates of title relating to that property.
Section 10: Affords appropriate protection to an innocent third party
who has an interest in property, the subject of an
application for forfeiture under section 6. The provision
sets out the circumstances and procedures to be followed
in this regard.
Section 10A: Affords appropriate protection to an innocent third party
who had an interest in property which was the subject of
an automatic forfeiture under section 8B. Again, this
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Crimes (Confiscation of Profits) Amendment
provision sets out the circumstances and procedures to
be followed in this regard.
Section 11: Sets out the four circumstances in which a forfeiture
order is discharged.
Section 11A: Allows for the buying back of an interest in forfeited
property subject to the conditions set out in the section
and imposes an obligation on the Attorney-General to
arrange for the transfer of the relevant interest.
Section 11B: Requires the Attorney-General to ensure the transfer of
an interest in property forfeited to the State to a purchaser
in circumstances where the purchaser's interest was not
the only interest in that property prior to forfeiture. In
this instance, the prospective purchaser must give written
notice to each other person who had such an interest
within the prescribed time. The transfer can proceed if
those persons have not objected to the purchase by
lodging a written objection with the Attorney-General
within the specified time frame.
Section 12: Sets out the matters to be attended to in the event of the
quashing of a conviction or the discharge of a forfeiture
order. The fundamental principle adopted in this section
seeks to have all parties, as far as practical, restored to
their positions prior to any forfeiture being effected.
Clause 10 amends, in effect, the present section 13 to take into account
the consequences of the automatic forfeiture provisions inserted by the new
section 8B, and adds two new sections, namely sections 13A and 13B for
the following reasons:
Section 13A: Provides that any debt owing under a pecuniary penalty
order is discharged to the extent of the value realised if
the automatically forfeited property is sold, or if not sold,
its reasonable value.
Section 13B: Allows for a variation of a pecuniary penalty order
following the discharge of a forfeiture order if that
forfeiture order had been taken into account when the
amount of the pecuniary penalty order was originally
determined.
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Crimes (Confiscation of Profits) Amendment
Clause 11 inserts a new subsection (8A) in section 14 which contains a
definition of the expression "expenses or outgoings". The effect of this
definition is to ensure that the purchase price of acquiring items concerned
in the commission etc of an offence is included in the ambit of that
expression. The effect of this amendment is to overcome the decision in Re
Ashworth [1992] 2 Qd. R 459 so that the Court, when assessing the value
of the benefit derived from the commission of an offence, is required to
disregard the purchase price of, for example, drugs in respect of a drug
trafficking transaction.
Clause 12 updates the reference in section 15(2) to the Service and
Execution of Process Act 1992 (Cwlth).
Clause 13 changes the phraseology in section 16(1), for technical
drafting reasons, by replacing the phase "by reason of" with "because of".
The reference to the provision cited in section 16(1) has been altered
because of the restructuring of earlier sections in the Act.
Clause 14 contains amendments to section 17 in relation to the making
of restraining orders, which amendments, among other matters, ensure that
restraining orders may be made affecting property under the effective
control of an accused person. The amendments also provide that, before a
Court may restrain property, it must be satisfied that certain prerequisite
beliefs of the relevant police officer are held on reasonable grounds. There
are also amendments to sub-sections (3), (5), (8), (9), (10), (11) and (12) of
the existing Act, as a consequence, among other factors, of the power
extended to Magistrates Courts in respect of the making of restraining
orders.
Clause 15 outlines the jurisdiction of the Magistrates Court in the matter
of the making of restraining orders.
Clause 16 inserts two new sections in the Act, namely, sections 18A and
18B, for the following purposes:
Section 18A: Allows the Supreme Court to vary a restraining order to
exclude a person's interest in property upon application
by that person where a defendant has been convicted,
charged or is about to be charged with a serious offence
and such a restraining order has already been made by a
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Crimes (Confiscation of Profits) Amendment
Court. The section outlines the conditions for the
making of such a variation.
Section 18B: Applies where a defendant has been convicted, charged
or is about to be charged with a serious drug offence and
a Court makes a restraining order against property in
which the defendant has an interest, in which
circumstances, the defendant may apply to the Supreme
Court for a declaration that the restraining order, to the
extent that it relates to such property, must be
disregarded for the purposes of the automatic forfeiture
provisions in section 8B and other provisions of the Act,
so that it will not be automatically forfeited six months
after conviction. The section sets out the conditions in
respect of which a court is to be satisfied before such a
declaration can be made.
Clause 17 redrafts the present section 19 to accommodate certain
technical drafting matters and to reflect the fact that Magistrates Courts will
be empowered to make restraining orders. Sub-section 7 of section 19 is to
be omitted as a consequence of the insertion of the new proposed section
67(1), inserted by Clause 32, which clarifies that certain proceedings are not
of a criminal nature.
Clause 18 amends the penalty provisions in section 21 to take account of
the provisions contained in the Penalties and Sentences Act 1992, in
particular, section 181B(3) which provides that the monetary penalty to be
imposed in respect of corporate offenders is five times that applying in
relation to natural persons.
Clause 19 inserts a new section 22 in the Act, the purpose of which is to
ensure there is no doubt that the creation of a charge on property in favour
of the State is not precluded if the restraining order is made after the person
is charged or convicted. It also contains consequential amendments to the
remaining sub-sections in the present provision.
Clause 20 contains technical drafting amendments to the heading and
substantive provisions of section 24 as a consequence of the automatic
forfeiture provisions.
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Crimes (Confiscation of Profits) Amendment
Clause 21 omits the words "directly or indirectly" in section 27(2)(a) for
technical drafting reasons and omits section 27(14) because the provisions
in that sub-section have now been transferred to the proposed section 67(1),
inserted by Clause 32.
Clause 22 amends the penalty provisions in section 29 to take account of
the provisions contained in the Penalties and Sentences Act 1992, in
particular, section 181B(3) which provides that the monetary penalty to be
imposed in respect of corporate offenders is five times that applying in
relation to natural persons.
Clause 23 omits the words "directly or indirectly" in section 31(2)(a) for
the same reason they have been omitted from section 27(2)(a).
Clause 24 replaces the words "as the result" in section 33(6) with the
word "because" for technical drafting reasons and in an attempt to have
words relating to causation standardised throughout the Act.
Clause 25 amends the penalty provisions in section 46(5) to take account
of the provisions contained in the Penalties and Sentences Act 1992, in
particular, section 181B(3) which provides that the monetary penalty to be
imposed in respect of corporate offenders is five times that applying in
relation to natural persons.
Clause 26 amends the references to other provisions in the Act contained
in section 53 to accord with those provisions as they have been relocated or
renumbered because of the restructuring of this Act.
Clause 27 updates the drafting of the provisions contained in section
58(5)(b).
Clause 28 deletes, in effect, the existing sections 59(b) and (c) which
provisions are no longer necessary because of the meaning of the
expressions, "convicted of offence" in section 3E and "unamenable to
justice" in section 3J.
Clause 29 redrafts section 60(1) and inserts a new section 60(1A) which
provides that a special forfeiture order may be made in respect of a contract
entered into before or after the defendant's conviction and in Queensland or
elsewhere including outside Australia.
Clause 30 replaces the word "proceeds" in section 61 with "benefits" in
order to be consistent with the phraseology in section 14.
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Crimes (Confiscation of Profits) Amendment
Clause 31 amends, in effect, the existing section 64 by widening the
ambit of the expression "money laundering" to cover persons who seek to
disguise the existence of tainted property, for example, by trying to transfer
the property to a family member or a friend, or by other means, conceal or
disguise the source, existence, nature, location, ownership or control of
money or other tainted property. It also inserts a new section 64A which
requires the consent of the Attorney-General before a charge of
money-laundering can be prosecuted. This amendment also clarifies the
procedural position so that a charge of money laundering will be able to
encompass a number of related money laundering transactions which occur
at different times, thereby capturing the whole enterprise.
This clause also amends section 65 by adding the offence of disguising
tainted property to those activities already listed in the section. The section
is also redrafted to accord with contemporary drafting policy and to reflect
principles contained in the Penalties and Sentences Act relating to the
expression of penalties.
Clause 32 inserts, in effect, a new subsection providing that a proceeding
on an application for a restraining, forfeiture, pecuniary penalty or special
forfeiture order is not a criminal proceeding. The present subsections in
section 67 have been redrafted to accord with contemporary drafting
practice and to reflect the restructuring of the Act.
Clause 33 incorporates amendments to section 69 made necessary
because of the Supreme Court of Queensland Act 1991 and the changes to
court structuring introduced by that Act.
Clause 34 contains, in effect, a consequential amendment to section 71 as
a direct result of the automatic forfeiture provisions introduced by this
amending Act.
Clause 35 inserts a new section 72A in respect of sham transactions into
the Act, in order to give the Crown the further option of seeking to have a
sham transaction declared void, in addition to its options under the existing
section 72. The new provision will allow title to property to revert to the
defendant and ensures restraining orders will be available in respect of that
property being specified to be property of the relevant person. If tainted, it
enables a restraining order to be made without the necessity for complex
arguments as to whether it was derived from the commission of the
relevant offence.
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Crimes (Confiscation of Profits) Amendment
Clause 36 omits the obsolete reference to Registrar of Dealings in section
73(1).
Clause 37 provides for the State to be exempt from the payment of
certain registry fees.
Clause 38 redrafts the regulation making power of the Act to accord with
contemporary drafting practice and inserts a new section 80 for the
purposes of the production of reprints under the Reprints Act 1992.
Clause 39 inserts two new schedules into the Act for the following
purposes:
Schedule 1 Part 1 gives examples of the meaning of the expression
"tainted property" and Part 2 provides examples as to
the assessment of benefits as outlined in section 14.
Schedule 2 Lists offences which are to be categorised as serious
offences for the purposes of paragraph (d) in the
definition of the expression "serious offence" in section
3(1).
© The State of Queensland 1994