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This is a Bill, not an Act. For current law, see the Acts databases.
1998—1999—2000—2001
The
Parliament of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Criminal Assets Recovery Bill
2001
No. ,
2001
(Mr
Kerr)
A Bill for an Act to provide for a
civil forfeiture scheme for the proceeds of criminal activity and for other
related purposes.
ISBN: 0642 469016
Contents
A Bill for an Act to provide for
a civil forfeiture scheme for the proceeds of criminal activity and for other
related purposes.
The Parliament of Australia enacts:
This
Act may be cited as the Criminal Assets Recovery Act 2001.
This Act shall come into operation on the day on which it receives the
Royal Assent.
The principal objects of this Act are:
(a) to provide for the confiscation, without requiring a conviction, of
property of a person if the Federal Court finds it to be more probable than not
that the person has engaged in serious crime related activities, and
(b) to enable the proceeds of serious crime related activities to be
recovered as a debt due to the Crown, and
(c) to enable law enforcement authorities effectively to identify and
recover property.
(1) In this Act:
assets forfeiture order means an order made under section 22
and in force.
AFP member means a member or special member of the Australian
Federal Police.
authorised officer means:
(a) the DPP or a member of staff of the Office of the DPP, or
(b) the Commissioner or an AFP member, or
(c) a person authorised in writing by the DPP or the Commissioner of the
Australian Federal Police either generally or in a special case to act as an
authorised officer for the purposes of section 10 (Restraining orders) or Part 4
(Information gathering powers).
(c) a member of the police force of a State or Territory; or
(d) a person in a class of persons declared by the regulations to be
within this definition
bank means:
(a) the Reserve Bank of Australia, or
(b) a bank within the meaning of the Banking Act 1959, or
(c) a person who carries on State banking within the meaning of paragraph
51 (xiii) of the Constitution
building society means a society registered or incorporated
as a building society, permanent building society, co-operative housing society
or similar society under a relating to such societies that is in force in State
or Territory.
Commissioner means the Commissioner of the Australian Federal
Police.
confiscation order means an assets forfeiture order or a
proceeds assessment order.
court means a court having jurisdiction under this Act
pursuant to section 57.
credit union means a society or other body of persons
registered or incorporated as a credit union or similar society under a law in
force in a State or Territory relating to a credit union or credit society
.
de facto partner of a person means the other party to a
relationship in which both parties live together as a couple, but are not
married to one another or related by family
dealing, in relation to an interest in property,
includes:
(a) if the interest is a debt—making a payment to any person in
reduction of the amount of the debt, and
(b) removing the property in which the interest is held from Australia,
and
(c) receiving or making a gift of the interest, and
(d) vesting the interest in a person in the course of administering the
estate of a deceased person.
director, in relation to a financial institution or a
corporation, means:
(a) if the institution or corporation is a body corporate incorporated for
a public purpose by a law of the Commonwealth, of a State or of a
Territory—a constituent member of the body corporate, and
(b) any person occupying or acting in the position of director of the
institution or corporation, by whatever name called and whether or not validly
appointed to occupy or duly authorised to act in the position, and
(c) except as provided by subsection (4), any person in accordance with
whose directions or instructions the directors of the institution or corporation
are accustomed to act.
DPP means the Director of Public Prosecutions
effective control, in relation to an interest in property,
includes effective control of the interest as provided by section 8.
encumbrance, in relation to property, includes any interest,
mortgage, charge, right, claim or demand in respect of the property.
financial institution means:
(a) a bank, or
(b) a building society, or
(c) a credit union, or
(d) a body corporate that is, or if it had been incorporated in Australia
would be, a financial corporation within the meaning of paragraph 51 (xx) of the
Constitution
illegal activity means:
(a) a serious crime related activity, or
(b) an act or omission that constitutes an offence (including a common law
offence) against a law of the Commonwealth or a law of a Territory.
(c) an act or omission that occurs outside Australia, is an offence
against the law of the place where it occurs and is of a kind that, if it had
occurred in Australia, would be a serious crime related activity.
illegally acquired property means an interest in property
that is illegally acquired property as provided by section 9.
indictable offence means an offence against a law of the
Commonwealth, or a law of a Territory, that may be dealt with as an indictable
offence (even if it may, in some circumstances, be dealt with as a summary
offence).
law enforcement authority means the Australian Federal
Police, the DPP or the National Crime Authority.
money means money in the form of cash.
monitoring order means an order made under section 52 and in
force.
Official Trustee means the Official Trustee in
Bankruptcy.
officer means a director, secretary, executive officer or
employee.
owner, in relation to an interest in property, includes a
person who has effective control of the interest.
premises includes
(a) a structure, building, aircraft, vehicle or vessel
(b) a place (whether enclosed or built on or not); and
(c) a part of premises (including premises of a kind referred to in
paragraph (a) or (b))
proceeds, in relation to an activity, includes any interest
in property, and any service, advantage or benefit, that is derived or realised,
directly or indirectly, as a result of the activity:
(a) by the person engaged in the activity, or
(b) by another person at the direction or request (given or made directly
or indirectly) of the person engaged in the activity.
Proceeds Account means the Confiscated Assets Reserve
established by section 34A of the Proceeds of Crime Act 1987.
proceeds assessment order means an order made under section
30 and in force.
production order means an order made under section 35 and in
force.
property-tracking document means:
(a) a document relevant to:
(i) identifying, locating or quantifying any interest in property of a
person who might reasonably be suspected of being, or of having been, engaged in
a serious crime related activity, or
(ii) identifying or locating any document necessary for the transfer of an
interest in property of a person who might reasonably be suspected of being, or
of having been, engaged in a serious crime related activity, or
(b) a document relevant to:
(i) identifying, locating or quantifying an interest in property that
might reasonably be suspected of being an interest that is serious crime derived
property, or
(ii) identifying or locating any document necessary for the transfer of an
interest in property that might reasonably be suspected of being an interest
that is serious crime derived property.
restraining order means an order made under section 10 and in
force.
serious crime derived property means an interest in property that is
serious crime derived property as provided by section 9.
serious crime related activity means serious crime related activity
referred to in section 6.
(2) A reference in this Act to acquiring an interest in property for
sufficient consideration is a reference to acquiring the interest for a
consideration that, having regard solely to commercial considerations, reflects
the value of the interest.
(3) A reference in this Act to a transaction of any kind (including sale,
disposition, dealing and acquisition) includes a reference to a transaction
outside Australia.
(4) For the purposes of this Act, a person is not to be regarded as being
a director of a financial institution or corporation within the meaning of
paragraph (c) of the definition of director in subsection (1) just
because the directors act on advice given by that person in the proper
performance of the functions attaching to his or her professional
capacity.
(1) For the purposes of this Act, proceedings on an application for a
restraining order or a confiscation order are not criminal
proceedings.
(2) Except in relation to an offence under this Act:
(a) any rules of construction applicable only in relation to the criminal
law do not apply in the interpretation of the provisions of this Act,
and
(b) the rules of evidence applicable in civil proceedings apply, and any
rules applicable only in criminal proceedings do not apply, to proceedings under
this Act; and
(c) any question of fact to be decided by a court on an application under
the Act is to be decided on the balance of probabilities.
(1) In this Act, a reference to a serious crime related activity of a
person is a reference to anything done by the person that was at the time a
serious criminal offence, whether or not the person has been charged with the
offence or, if charged:
(a) has been tried, or
(b) has been tried and acquitted, or
(c) has been convicted (even if the conviction has been quashed or set
aside).
(2) In this section, a reference to a serious criminal offence is a
reference to:
(a) an offence that is punishable under a law of the Commonwealth or of a
Territory by imprisonment for 5 years or more and involves narcotics, theft,
fraud, obtaining financial benefit from the crime of another, money laundering,
extortion, violence, bribery, corruption, harbouring criminals, blackmail,
obtaining or offering a secret commission, perverting the course of justice, tax
or revenue evasion, illegal gambling, forgery or homicide, or
(b) a prescribed indictable offence, or
(c) an offence of attempting to commit, or of conspiracy or incitement to
commit, an offence referred to in paragraph (a) or (b).
(1) In this Act, a reference to an interest of a person in property is a
reference to:
(a) an interest the person has in real or personal property, or
(b) a chose in action enforceable at the suit of the person, or
(c) an interest of the person that is within a class of interests
prescribed as interests in property for the purposes of this Act.
(2) Without limiting the generality of subsection (1), a reference in this
Act to an interest of a person in property includes a reference to:
(a) the person's money, and
(b) an interest that the person has in the goodwill of a business,
and
(c) an interest that the person has in a licence required to be held in
order to carry on a business.
(3) A reference in this Act to an interest of a person in property
includes a reference to an interest of a person in property situated outside
Australia.
(4) For the purposes of this Act, if:
(a) but for this subsection, a person would have an interest in property
as provided by subsection (1), and
(b) the interest is subject to the effective control of another
person,
the interest is an interest of the person who has effective control and
is not an interest of the person referred to in paragraph (a).
(5) In this section:
interest, in relation to property, means:
(a) a legal or equitable estate or interest in the property, or
(b) a right, power or privilege in connection with the property,
whether present or future and whether vested or contingent.
(1) An interest in property may be subject to the effective control of a
person within the meaning of this Act even if:
(a) the person does not have a legal or equitable estate or interest in
the property, or
(b) the person has no direct or indirect right, power or privilege in
connection with the interest.
(2) In determining whether or not an interest in property is subject to
the effective control of a person, regard may be had to any relevant matter,
including (without being limited to) the following matters:
(a) shareholdings in, debentures of, or directorships of, a company that
has the interest,
(b) a trust that has a relationship to the interest,
(c) family, domestic, business and other relationships between that person
and other persons having an interest in the property, or in companies of the
kind referred to in paragraph (a) or trusts of the kind referred to in paragraph
(b).
(1) An interest in property is serious crime derived property
if:
(a) it is all or part of the proceeds of a serious crime related activity,
or
(b) it is all or part of the proceeds of the disposal of or other dealing
in serious crime derived property, or
(c) it was wholly or partly acquired using serious crime derived
property.
(2) The references in subsection (1) (b) and (c) to serious crime derived
property are not limited to serious crime derived property described in
subsection (1) (a) but also include interests in property that are serious crime
derived property because of a previous operation or previous operations of
subsection (1) (b) or (c) or their combined operation.
(3) Once an interest in property becomes serious crime derived property it
remains serious crime derived property even if the interest is disposed of or
otherwise dealt with (including by being used to acquire an interest in
property), but this is qualified by subsection (5).
(4) The meaning of illegally acquired property is
ascertained by substituting, in subsections (1)–(3), illegally
acquired property for serious crime derived property and
illegal activity for serious crime related
activity.
(5) An interest in property ceases to be serious crime derived property or
illegally acquired property:
(a) when it is acquired by a person for sufficient consideration without
knowing, and in circumstances that would not arouse a reasonable suspicion, that
the interest was, at the time of acquisition, serious crime derived property or
illegally acquired property, or
(b) when it vests in a person as a result of the distribution of the
estate of a deceased person, or
(c) when the interest is sold or otherwise disposed of under the authority
of this Act (including when discharging a proceeds assessment order),
or
(d) when it is the proceeds of the sale or other disposition of serious
crime derived property or illegally acquired property under the authority of
this Act except a sale under section 10 (8) (b) or 14, or
(e) when it is acquired by a person as payment of reasonable legal
expenses incurred in connection with an application under this Act or incurred
in defending a criminal charge, or
(f) in such other circumstances as may be prescribed.
(6) If an interest in property that is not serious crime derived property
or illegally acquired property was once owned by a person and was then serious
crime derived property or illegally acquired property, the property becomes
serious crime derived property or illegally acquired property, respectively, if
and when it is again acquired by the person.
(7) The proceeds of a sale or other dealing do not lose their identity as
such merely as a result of being credited to an account.
(8) It does not matter whether the serious crime related activity, illegal
activity, disposition or other dealing or acquisition by reason of which an
interest in property becomes serious crime derived property or illegally
acquired property took place before or after the commencement of this
section.
(9) The following are examples of the practical operation of this section
showing the ways in which an interest in property can become serious crime
derived property and stop being serious crime derived property:
(a) if money that is the proceeds of a serious crime related activity is
used to buy land, the land becomes serious crime derived property and the money
used (which is now in the hands of some other person) continues to be serious
crime derived property,
(b) if the land is then sold it continues to be serious crime derived
property and the money paid for it becomes serious crime derived
property,
(c) if the money paid for the land is then used to buy a car, the car
becomes serious crime derived property and the money used to buy it (now in the
hands of the car's former owner) continues to be serious crime derived property
unless the purchase was for sufficient consideration from an innocent
person.
(1) A restraining order is an order that no person is to dispose of or
attempt to dispose of, or to otherwise deal with or attempt to otherwise deal
with, an interest in property to which the order applies except in such manner
or in such circumstances (if any) as are specified in the order.
(2) The DPP may apply to a court, ex parte, for a restraining order in
respect of:
(a) specified interests, a specified class of interests or all the
interests, in property of a person suspected of having engaged in a serious
crime related activity or serious crime related activities, including interests
acquired after the making of the order and before the making of an assets
forfeiture order affecting the interests that are subject to the restraining
order, or
(b) specified interests, or a specified class of interests, in property
that are interests of any other person, or
(c) interests referred to in both paragraph (a) and paragraph
(b).
(3) A restraining order does not apply to an interest acquired after the
order is made unless the order expressly provides that it does so
apply.
(4) The court to which an application is made must make the order applied
for if the application is supported by an affidavit of an authorised officer
stating that:
(a) in the case of an application in respect of an interest referred to in
subsection (2) (a)—the authorised officer suspects that the person has
engaged in a serious crime related activity or serious crime related activities
and stating the grounds on which that suspicion is based, and
(b) in the case of an application in respect of any other
interest—the authorised officer suspects that the interest is serious
crime derived property because of a serious crime related activity or serious
crime related activities of a person and stating the grounds on which that
suspicion is based,
and the court considers that having regard to the matters contained in
any such affidavit there are reasonable grounds for any such
suspicion.
(5) When the court makes a restraining order, the court may, if it
considers that the circumstances so require, order the Official Trustee to take
control of some or all of the interests in property that are interests to which
the restraining order relates.
(6) A restraining order may, at the time it is made or at a later time,
make provision for meeting out of the property, or a specified part of the
property, to which the order applies all or any of the following:
(a) the reasonable living expenses of any person whose interests in
property are subject to the restraining order (including the reasonable living
expenses of any dependants (if any)),
(b) subject to section 17, the reasonable legal expenses of any person
whose interests in property are subject to the restraining order, being expenses
incurred in connection with the application for the restraining order or an
application for a confiscation order, or incurred in defending a criminal
charge.
(7) A court may refuse to make a restraining order if the Commonwealth
refuses or fails to give to the court such undertakings as the court considers
appropriate with respect to the payment of damages or costs, or both, in
relation to the making and operation of the order.
(8) For the purposes of an application for a restraining order, the DPP
may, on behalf of the Commonwealth, give to a court such undertakings with
respect to the payment of damages or costs, or both, as are required by the
court.
(9) If a restraining order is in force in respect of an interest of a
person in property, the restraining order does not prevent:
(a) the levying of execution against the property in satisfaction, or
partial satisfaction, of the debt arising under a proceeds assessment order in
force against the person, or
(b) with the consent of the court, the sale or other disposition of the
interest to enable the proceeds to be applied in satisfaction or partial
satisfaction of that debt, or
(c) with the consent of the court, the application of the interest in
satisfaction or partial satisfaction of that debt.
(10) After the first 48 hours of its operation, a restraining order
remains in force in respect of an interest in property only while:
(a) there is an application for an assets forfeiture order pending before
a court in respect of the interest, or
(b) there is an unsatisfied proceeds assessment order in force against the
person whose suspected serious crime related activities formed the basis of the
restraining order, or
(c) there is an application for such a proceeds assessment order pending
before a court, or
(d) it is the subject of an order of a court under section 22 (Effect on
restraining order of refusal to make confiscation order).
(1) If a court makes a restraining order under this Act, the DPP must give
notice of the order and of any variation of the order to the Commissioner of the
Australian Federal Police.
(2) If:
(a) a restraining order is made in respect of an interest in property of a
person, and
(b) the person was not notified of the application for the making of the
restraining order,
notice of the making or variation of the order is to be given by the DPP
to the person.
(3) A restraining order does not cease to be in force just because proper
efforts to give notice of its making have been unsuccessful.
(1) A court may, when it makes a restraining order or at any later time,
make any ancillary orders (whether or not affecting a person whose interests in
property are subject to the restraining order) that the court considers
appropriate and, without limiting the generality of this, the court may make any
one or more of the following orders:
(a) an order varying the interests in property to which the restraining
order relates,
(b) an order for the examination on oath of:
(i) the owner of an interest in property that is subject to the
restraining order, or
(ii) another person,
before the court, or before an officer of the court prescribed by rules
of court, concerning the affairs of the owner, including the nature and location
of any property in which the owner has an interest,
(c) an order for the examination on oath of a person who is the spouse or
a de facto partner of the owner of an interest in property that is subject to
the restraining order, before the Court or before an officer of the court
prescribed by the rules of court, concerning the affairs of the person,
including the nature and location of any property in which the person or that
owner has an interest,
(d) an order with respect to the carrying out of any undertaking with
respect to the payment of damages or costs given on behalf of the Commonwealth
in connection with the making of the restraining order,
(e) an order directing a person who is or was the owner of an interest in
property that is subject to the restraining order or, if the owner is or was a
body corporate, a director of the body corporate specified by the court, to
furnish to the DPP or Official Trustee, within a period specified in the order,
a statement, verified by the oath of the person making the statement, setting
out such particulars of the property, or dealings with the property, in which
the owner has or had an interest as the court thinks proper,
(f) if the restraining order requires the Official Trustee to take control
of an interest in property:
(i) an order regulating the manner in which the Official Trustee may
exercise functions under the restraining order, or
(ii) an order determining any question relating to the interest, including
any question affecting the liabilities of the owner of the interest or the
functions of the Official Trustee, or
(g) an order requiring or authorising the seizure or taking possession of
property.
(2) An order under subsection (1) may be made on application:
(a) by the DPP, or
(b) by the owner, or
(c) if the restraining order directed the Official Trustee to take control
of an interest in property—by the Official Trustee, or
(d) with the leave of the court before which the application is
made—by any other person.
(3) The applicant for an order under subsection (1) must give notice of
the order:
(a) if the applicant is a person referred to in subsection (2) (a), (b) or
(c)—to the other persons referred to in those paragraphs, or
(b) if the applicant is a person referred to in subsection (2)
(d)—to the persons referred to in subsection (2) (a)–(c).
(1) A person being examined under section 12 is not excused from answering
any question, or from producing any document or other thing, on the ground
that:
(a) the answer or production might incriminate, or tend to incriminate,
the person or make the person liable to a forfeiture or penalty, or
(b) production of the document would be in breach of an obligation
(whether imposed by an enactment or otherwise) of the person not to disclose the
existence or contents of the document, or
(c) the answer or production would disclose information that is the
subject of legal professional privilege.
(2) A statement or disclosure made by a person in answer to a question put
in the course of an examination under section 12, or any document or other thing
obtained as a consequence of the statement or disclosure, is not admissible
against the person in any civil or criminal proceedings except proceedings that
comprise:
(a) proceedings in respect of the false or misleading nature of a
statement or disclosure made under this Act, or
(b) proceedings on an application under this Act, or
(c) proceedings ancillary to an application under this Act, or
(d) proceedings for enforcement of a confiscation order, or
(e) in the case of a document or other thing—civil proceedings for
or in respect of a right or liability it confers or imposes.
(3) A person directed by an order under section 12 to furnish a statement
to the Official Trustee or the DPP is not excused from:
(a) furnishing the statement, or
(b) setting out particulars in the statement,
on the ground that the statement or particulars might incriminate, or
tend to incriminate, the person or make the person liable to a forfeiture or
penalty.
(4) If a person furnishes a statement to the Official Trustee or the DPP
in accordance with an order made under section 12, the statement is not
admissible against the person in any criminal proceedings except proceedings in
respect of the false or misleading nature of the statement.
(1) If an application is made for an assets forfeiture order, the court to
which the application is made may, when the application is made or at a later
time, make an order directing the Official Trustee to sell an interest in
property that is subject to the application for the assets forfeiture order
if:
(a) the property is subject to waste or substantial loss of value,
or
(b) in the opinion of the Official Trustee, the cost of controlling the
interest would exceed the value of the interest if the assets forfeiture order
were made.
(2) Notice of an application for an order under this section must be given
to the owner of the interest in property to which the application
relates.
(3) The proceeds of the sale under subsection (1) of an interest in
property are subject to the restraining order to which the interest was
subject.
(1) If a restraining order applies to an interest in property of a
particular kind and the provisions of any law of the Commonwealth or of a State
or Territory, provide for the registration of title to, an interest in or a
charge over, property of that kind, the authority responsible for administering
those provisions may, on application by the DPP, record in the register kept
under those provisions the particulars of the restraining order.
(2) If the particulars of a restraining order are so recorded, a person
who subsequently deals with or attempts to deal with the property is, for the
purposes of section 16, to be taken to have had notice of the restraining order,
at the time of the dealing.
(3) If a restraining order applies to an interest in land as a result of
an application made by the DPP under subsection (1), the DPP may apply in
accordance with any procedure stipulated in the legislation under which the
restraining order has been recorded, for a caveat to be lodged under that
legislation in relation to the order.
(4) If a restraining order recorded under this section ceases to have
effect in relation to an interest in property in respect of which it was made,
the DPP must:
(a) apply to the relevant authority of the Commonwealth State or
Territory in which the order is recorded for cancellation of the recording,
and
(b) withdraw any caveat lodged in relation to the order.
(1) A person who contravenes a restraining order, or any ancillary order
under section 12, by disposing of or attempting to dispose of, or by otherwise
dealing with or attempting to otherwise deal with, an interest in property that
is an interest subject to the restraining order is guilty of an offence and
punishable, on conviction, by a fine equivalent to the value of the interest (as
determined by the court in which the person is convicted) by imprisonment for a
period not exceeding 2 years, or both, unless it is proved that the person had
no notice that the interest was subject to the restraining order and no reason
to suspect that it was.
(2) Subsection (1) does not prevent a person from being dealt with for a
contempt of the court which made the retraining order, but a person may not, for
the same contravention of a restraining order, be punished both for a contempt
of that court and under subsection (1).
(3) If:
(a) a restraining order is made against an interest in property,
and
(b) the interest is disposed of, or otherwise dealt with, in contravention
of the restraining order, and
(c) the disposition or dealing was either not for sufficient consideration
or not in favour of a person who acted in good faith,
the DPP may apply to the court that made the restraining order for an
order that the disposition or dealing be set aside.
(4) It is not a contravention of a restraining order to dispose of or
attempt to dispose of, or to otherwise deal with or attempt to otherwise deal
with, an interest in property under the authority of this Act.
(1) The following restrictions apply to a restraining order making
provision for the payment of any legal expenses of a person:
(a) no provision is to be made except to the extent (if any) that the
court which makes the restraining order is satisfied that the person cannot meet
the expenses concerned out of the person's unrestrained property,
(b) no provision is to be made in relation to any particular interest in
property if the court is satisfied that the interest is illegally acquired
property,
(c) no provision is to be made unless a Statement of Affairs disclosing
all the person's interests in property and liabilities and verified on oath by
the person has been filed with the court,
(d) no provision is to be made unless the court is satisfied that the
person has taken all reasonable steps to bring all of the person's interests in
property within the jurisdiction of the court,
(e) any such provision must specify the particular interest in property
out of which the expenses concerned may be met.
(2) A person's unrestrained property is any interest in
property of the person:
(a) that is not subject to a restraining order under this Act,
or
(b) that the court is satisfied is not within the court's jurisdiction
(whether or not it is subject to a restraining order under this Act),
or
(c) that the court is satisfied would not be available to satisfy a
proceeds assessment order against the person (assuming such an order were to be
made against the person).
(1) Despite provision in a restraining order for the meeting of legal
expenses out of any property to which the order applies, a legal expense is not
to be met out of that property to the extent that the amount payable for any
legal service concerned exceeds any maximum allowable cost for the service that
is fixed under this section.
(2) For the purposes of this Act, the regulations may fix maximum
allowable costs for legal services provided in connection with an application
for a restraining order or confiscation order or the defending of a criminal
charge.
(3) Regulations under this section can fix costs by applying, adopting or
incorporating, with or without modification, the provisions of any Act of the
Commonwealth or of a State or Territory relating to the fixing of costs, for
legal services, or any instrument made under an Act or of any other publication,
whether of the same or a different kind, as in force on a particular day or as
in force for the time being.
(4) This section operates only to limit the amount of the legal expenses
that are authorised to be met out of property that is subject to a restraining
order and does not limit or otherwise affect any entitlement of a legal
practitioner to be paid or to recover for a legal service any amount that
exceeds any applicable maximum.
(1) If a restraining order makes provision for meeting a person's
reasonable legal expenses:
(a) the DPP, or
(b) the Official Trustee if the order provides for the Official Trustee to
take control of an interest in the property,
may apply to the court for an order under this section.
(2) The Official Trustee or the DPP must give to the person notice of an
application under this section.
(3) On an application under this section, the court must order that the
expenses be taxed as provided in the order.
(4) After an application is made for an order under this section, the
Official Trustee need not, except as ordered by the court, take any steps for
the purpose of meeting the expenses as provided by the restraining order unless
and until:
(a) an order under this section in relation to the expenses is complied
with, or
(b) the application, and any appeal arising out of it, are finally
determined, or otherwise disposed of, otherwise than by the making of such an
order.
(1) A person who hinders or obstructs the Official Trustee in the
performance of the Official Trustee's obligations under a restraining order is
guilty of an offence.
Maximum penalty: 20 penalty units or imprisonment for 6 months, or
both.
(2) The Official Trustee is not liable for any rates, land tax or other
statutory charges imposed by or under a law of the Commonwealth or of a State or
Territory on or in respect of an interest in property of which the Official
Trustee has been directed by a restraining order to take control, being rates,
land tax or other statutory charges that fall due on or after the date of the
restraining order, except to the extent, if any, of the rents and profits
received by the Official Trustee in respect of that property on or after the
date of the restraining order.
(3) If the Official Trustee, in accordance with a restraining order, takes
control of a business carried on by a person, the Official Trustee is not
liable:
(a) for any payment in respect of long service leave for which the person
was liable, or
(b) for any payment in respect of long service leave to which a person
employed by the Official Trustee in his or her capacity of manager of the
business, or the legal personal representative of such a person, becomes
entitled after the date of the restraining order, or
(c) to meet, otherwise than out of the income or assets of the business,
any liabilities and expenses incurred in controlling the business.
(4) In this section:
Official Trustee includes the deputies of, officers and
employees on the staff of, and agents of, the Official Trustee.
(1) The regulations may make provision for or in relation to:
(a) the costs, charges and expenses incurred in connection with;
and
(b) the Official Trustee’s remuneration in respect of the
performance or exercise by official Trustee of functions, duties or powers under
this Act.
(2) An amount equal to each amount of remuneration that the Official
Trustee receives under the regulations shall be paid into the Consolidated
Revenue Fund.
(1) If, while a restraining order is in force, a court does not make an
assets forfeiture order in respect of interests in property to which the
restraining order relates or a proceeds assessment order in respect of any
person whose interests in property are affected by the restraining order, a
court may:
(a) if it considers it appropriate, make an order in relation to the
period for which the restraining order is to remain in force, and
(b) make such other order or orders as it considers appropriate in
relation to the operation of the restraining order.
(2) An order under subsection (1) may be made to take effect:
(a) forthwith, or
(b) at a specified time, or
(c) on the happening of a specified event.
If a restraining order is made directing the Official Trustee to take
control of an interest in property, a certificate under the hand of the Official
Trustee or an officer to whom the function of issuing a certificate has been
delegated by the Official Trustee, and sealed with the Official Trustee's
seal:
(a) certifying that the restraining order has been made and is in force,
and
(b) stating the terms of the restraining order,
is to be accepted by all courts, officers and other persons, whether
acting under any Act or not, as evidence of the matters so certified and stated
and of the Official Trustee's right to act under the restraining
order.
(1) If a restraining order is in force under Part 2, the DPP may apply to
the court for an order forfeiting to, and vesting in, the Crown all or any of
the interests in property that are subject to the restraining order when the
assets forfeiture order takes effect.
(2) The court to which the application is made must make an assets
forfeiture order if the court finds it to be more probable than not that the
person whose suspected serious crime related activity, or serious crime related
activities, formed the basis of the restraining order was, at any time not more
than 6 years before the making of the application for the assets forfeiture
order, engaged in a serious crime related activity involving an offence
punishable by imprisonment for 5 years or more.
(3) A finding of the court for the purposes of subsection (2) need not be
based on a finding as to the commission of a particular offence and can be based
on a finding that some offence or other constituting a serious crime related
activity and punishable by imprisonment for 5 years or more was
committed.
(4) When an assets forfeiture order is made it must be made so as to apply
to specified interests in property.
(5) The reference in subsection (2) to a period of 6 years includes a
reference to a period that began before the commencement of this
section.
(6) The raising of a doubt as to whether a person engaged in a serious
crime related activity is not of itself sufficient to avoid a finding by the
court under subsection (2).
(7) The quashing or setting aside of a conviction for a serious crime
related activity does not affect the validity of an assets forfeiture order that
was made before or after the conviction was quashed or set aside and was based
on the serious crime related activity.
(8) The making of an assets forfeiture order does not prevent the making
of a proceeds assessment order under Division 2 which assesses the value of the
proceeds of, or is based on, the serious crime related activity on which the
assets forfeiture order was based.
(9) Notice of an application under this section is to be given to a person
to whom the application relates and the person may appear, and adduce evidence,
at the hearing of the application.
(10) The absence of a person entitled to be given notice of an application
for an assets forfeiture order does not prevent the court from making the
order.
(1) On an assets forfeiture order taking effect in relation to an interest
in property:
(a) the interest is forfeited to the Crown and vests in the Official
Trustee on behalf of the Crown, and
(b) if the person forfeiting the interest was in possession, or was
entitled to possession, of the property, the Official Trustee may take
possession of the property on behalf of the Crown.
(2) An interest forfeited under subsection (1) is to be disposed of by the
Official Trustee in accordance with the directions of the Minister for Finance
and the proceeds are to be paid to the Minister for Finance and credited to the
Proceeds Account.
(3) The Minister for Finance may delegate the power to give directions for
the purposes of subsection (2).
(4) A court may, when it makes an assets forfeiture order or at any later
time, make any ancillary orders that the court considers appropriate. For
example, the court may make ancillary orders for and with respect to
facilitating the transfer to the Crown of interests in property forfeited to the
Crown under such an order.
(1) A person must not dispose of or otherwise deal with an interest in
property that is the subject of an assets forfeiture order.
(2) A person who contravenes subsection (1) is guilty of an offence and
punishable, on conviction, by a fine equivalent to the value of the interest
concerned (as determined by the court in which the person is convicted) or by
imprisonment for a period not exceeding 2 years, or both, unless it is proved
that the person had no notice that the interest was subject to the order
concerned and no reason to suspect that it was.
(3) This section does not prevent a person from being dealt with for a
contempt of the court which made the assets forfeiture order, but a person may
not, for the action, be punished both for a contempt of that court and under
this section.
(4) If an interest in property is disposed of or otherwise dealt with in
contravention of this section and the disposition or dealing was either not for
sufficient consideration or not in favour of a person who acted in good faith,
the disposition or dealing is void.
(5) It is not a contravention of this section if an interest in property
is disposed of or dealt with under the authority of this Act.
(1) If the court making an assets forfeiture order is satisfied that the
order will operate to cause hardship to any dependant of the person who will
forfeit an interest in property under the order, the court:
(a) may order that the dependant is entitled to be paid a specified amount
out of the proceeds of sale of the interest, being an amount that the court
thinks is necessary to prevent hardship to the dependant, and
(b) may make ancillary orders for the purpose of ensuring the proper
application of an amount so paid to a person who is under 18 years of
age.
(2) The court is not to make an order under this section in favour of the
dependant of a person whose serious crime related activity formed the basis for
the assets forfeiture order concerned unless the court is satisfied that the
dependant had no part in any serious crime related activities of the
person.
(3) Subsection (2) does not apply if the dependant concerned is under 14
years of age.
(4) In this section:
dependant, in relation to a person, means:
(a) a spouse or a de facto partner of the person, or
(b) a child of the person, or a member of the household of the person,
dependent for support on the person.
(1) If an assets forfeiture order:
(a) has been applied for but not made—a person whose interest in
property might be subject to the order if made, or
(b) has been made—a person whose interest in property was forfeited
by the order,
may apply to a court for an order (in this section called an
exclusion order) excluding the interest from the operation of the
assets forfeiture order or any relevant restraining order.
(2) The court must not make the exclusion order applied for unless it is
proved that it is more probable than not that the interest in property to which
the application relates is not illegally acquired property.
(3) An exclusion order must declare the nature and extent of the interest
in property to which it relates and:
(a) if the interest has been forfeited to the Crown, but not disposed
of—must require the Crown to vest the interest in the claimant,
or
(b) if the interest has been disposed of—must require payment by the
Crown to the claimant of an amount declared by the court to be the value, as at
the date of the order, of the former interest of the claimant.
(4) After an assets forfeiture order has been made, an application for an
exclusion order may not be made by a person:
(a) if the person was given notice of the proceedings that led to the
relevant restraining order or assets forfeiture order—unless it is made
within 6 months after the assets forfeiture order took effect and leave to apply
has been granted by a court, or
(b) in any other case—unless it is made within 6 months after the
assets forfeiture order took effect or a court has granted leave to apply after
that time.
(5) Notice of an application for an exclusion order is to be given to the
DPP and any other person required by the regulations to be given notice and a
person entitled to be given notice may appear, and adduce evidence, at the
hearing of the application.
(6) The applicant for an exclusion order must give the DPP notice of the
grounds on which the exclusion order is sought.
(7) If the DPP proposes to contest an application for an exclusion order,
it must give the applicant notice of the grounds on which the application is to
be contested.
In such a case, the DPP is not required to give the applicant notice of
those grounds, and the application must not be heard, until the DPP has had a
reasonable opportunity to conduct an examination of the applicant under section
12.
(1) If it is proved that it is more probable than not that a specified
proportion of the value of an interest in property that has been forfeited under
an assets forfeiture order is not attributable to the proceeds of an illegal
activity, a court may:
(a) make a declaration to that effect, and
(b) order that the person who has forfeited the interest is entitled to be
paid the proportion of the proceeds of sale of the interest that is specified in
the declaration.
(2) Any such declaration is to be made on the basis of the extent to which
the interest in property concerned was not, when it first became illegally
acquired property, acquired using the proceeds of an illegal activity.
(3) The court may make a declaration and order under this section in
relation to an interest in property on the application of the person whose
interest it was when forfeited under an assets forfeiture order.
(4) After an assets forfeiture order has been made, an application for an
order under this section may not be made by a person:
(a) if the person was given notice of the proceedings that led to the
assets forfeiture order—unless it is made within 6 months after the assets
forfeiture order took effect and leave to apply has been granted by the court,
or
(b) in any other case—unless it is made within 6 months after the
assets forfeiture order took effect or the court has granted leave to apply
after that time.
(5) Notice of an application for an order under this section is to be
given to the DPP and any other person required by the regulations to be given
notice and a person entitled to be given notice may appear, and adduce evidence,
at the hearing of the application.
(6) The applicant for an order under this section must give the DPP notice
of the grounds on which the order is sought.
(7) If the DPP proposes to contest an application for an order under this
section it must give the applicant notice of the grounds on which the
application is to be contested.
(1) The DPP may apply to the a court for a proceeds assessment order
requiring a person to pay to the Commonwealth or an amount assessed by the court
as the value of the proceeds derived from an illegal activity, or illegal
activities, of the person that took place not more than 6 years before the
making of the application for the order, whether or not any such activity is an
activity on which the application is based as required by subsection
(2).
(2) The court to which the application is made must make a proceeds
assessment order if the court finds it to be more probable than not that the
person against whom the order is sought was, at any time not more than 6 years
before the making of the application for the order, engaged in a serious crime
related activity involving an offence punishable by imprisonment for 5 years or
more.
(3) A finding of the court for the purposes of subsection (2) need not be
based on a finding as to the commission of a particular offence and can be based
on a finding that some offence or other constituting a serious crime related
activity and punishable by imprisonment for 5 years or more was
committed.
(4) The references in subsections (1) and (2) to a period of 6 years
include a reference to a period that began before the commencement of this
section.
(5) The quashing or setting aside of a conviction for a serious crime
related activity does not affect the validity of a proceeds assessment
order.
(6) The making of a proceeds assessment order does not prevent the making
under Division 1 of an assets forfeiture order based on the serious crime
related activity, or on all or any of the serious crime related activities, in
relation to which the proceeds assessment order is made.
(7) The amount a person is required to pay under a proceeds assessment
order is a debt payable by the person to the Crown on the making of the order
and is recoverable as such.
(8) If an order under this section is made against a dead person,
subsection (7) has effect before final distribution of the estate as if the
person had died the day after the making of the order.
(9) The net amount recovered under a proceeds assessment order is to be
paid to the Minister for Finance and credited to the Proceeds Account.
(10) Notice of an application under this section is to be given to the
person against whom the order is sought and any other person required by the
regulations to be given notice.
(11) The absence of a person entitled to be given notice of a proceeds
assessment order does not prevent a court from making the order.
(12) A court may, when it makes a proceeds assessment order at any later
time, make any ancillary orders that the Court considers appropriate.
(1) For the purpose of making an assessment under section 30 in relation
to an illegal activity, or illegal activities, of a person (in this section
called the defendant) the court in making the assessment is to
have regard to the following matters:
(a) the money, or the value of any interest in property other than money,
directly or indirectly acquired by:
(i) the defendant, or
(ii) another person at the request, or by the direction, of the
defendant,
because of the illegal activity or activities,
(b) the value of any service, benefit or advantage provided for:
(i) the defendant, or
(ii) another person at the request, or by the direction, of the
defendant,
because of the illegal activity or activities,
(c) the market value, at the time of the illegal activity or of each
illegal activity, of a plant or drug similar, or substantially similar, to any
involved in the illegal activity or each illegal activity, and the amount that
was, or the range of amounts that were, ordinarily paid for an act similar, or
substantially similar, to the illegal activity or each illegal
activity,
(d) the value of the defendant's property before and after the illegal
activity or each illegal activity,
(e) the defendant's income and expenditure before and after the illegal
activity or activities.
(2) If evidence is given at the hearing of an application for a proceeds
assessment order that the value of the defendant's property after an illegal
activity or illegal activities exceeded the value of the defendant's property
before the activity or activities, the court is to treat the excess as proceeds
derived by the defendant from the activity or activities, except to the extent
(if any) that the court is satisfied the excess was due to causes unrelated to
an illegal activity or activities.
(3) If evidence is given at the hearing of an application for a proceeds
assessment order of the amount of the defendant's expenditure during the period
of 6 years before the making of the application for the order, the court is to
treat any such amount as proceeds derived by the defendant from an illegal
activity or activities, except to the extent (if any) that the court is
satisfied the expenditure was funded from income, or money from other sources,
unrelated to an illegal activity or activities.
(4) The court is not to take expenditure into account under subsection (3)
to the extent that the Court is satisfied that it resulted in the acquisition of
property the value of which is taken into account under subsection
(2).
(5) In making an assessment as provided by this section, none of the
following amounts are to be subtracted:
(a) expenses or outgoings incurred by the defendant in relation to the
illegal activity or activities,
Note. For example, in the case of an illegal
activity involving the sale of drugs, in determining the value of the proceeds
derived by the defendant from the sale of drugs there is to be no reduction on
account of any expenditure by the defendant in acquiring the
drugs.
(b) the value of any proceeds derived as agent for or otherwise on behalf
of some other person (whether or not any of the proceeds are received by that
other person).
Note. For example, where the defendant is paid money
for drugs in the course of a ``controlled buy'' but was acting merely as an
agent or messenger for some other person (and gives the money to the other
person), in calculating the proceeds derived by the defendant the amount given
to the other person is not to be subtracted and the full amount is considered to
have been derived by the defendant.
(6) This section applies to, and in relation to:
(a) property that comes into the possession, or under the effective
control, of a person either within or outside Australia, and
(b) proceeds acquired either within or outside Australia in relation to an
illegal activity.
(7) Despite any rule of law, or any practice, relating to hearsay
evidence, the court may, for the purposes of this section, receive evidence of
the opinion of:
(a) a member of the police force of a State or Territoryor
(b) an AFP member, or
(c) an officer of Customs within the meaning of the Customs Act
1901, or
(d) a member of staff of the office of the DPP,
who is experienced in the investigation of illegal activities involving
plants or drugs, being an opinion with respect to:
(e) the amount that was the market value at a particular time of a
particular kind of plant or drug, or
(f) the amount, or range of amounts, ordinarily paid at a particular time
for the doing of anything in relation to a particular kind of plant or
drug.
(1) If the court making the order is satisfied that a proceeds assessment
order will operate to cause hardship to any dependent of the person who is the
debtor pursuant to section 30, the court:
(a) may order that the dependant is entitled to be paid a specified amount
out of the amount paid discharging the debt pursuant to section 30, being an
amount that the court thinks is necessary to prevent hardship to a dependent,
and
(b) may make ancillary orders for the purpose of ensuring the proper
application of an amount so paid to a person who is under 18 years of
age.
(2) The court is not to make an order under this section in favour of the
dependant of a person whose illegal activity formed the basis for the proceeds
assessment order concerned unless the court is satisfied that the dependant had
no part in any of the illegal activity of the person.
(3) Subsection (2) does not apply if the dependant concerned is under 14
years of age.
(4) In this section:
dependant, in relation to a person, means:
(a) a spouse or a de facto partner of the person, or
(b) a child of the person, or a member of the household of the person,
dependent for support on the person.
(1) On the application of the DPP, a court must, if of the opinion that an
interest in property is subject to the effective control of a person in relation
to whom the court has made a proceeds assessment order, make an order declaring
that the interest is available to satisfy the order to the extent that other
property is not readily available for that purpose.
(2) If the court declares that an interest in property is available to
satisfy a proceeds assessment order, the proceeds assessment order may be
enforced against the property to the extent specified in the
declaration.
(3) If application is made for an order under this section:
(a) the DPP must give notice of the application to the person against
whose interest in property the order is sought and to any other person whom the
DPP has reason to believe may also have an interest in the property to which the
application relates, and
(b) each person to whom notice is given, and any other person who claims
an interest in the property, may appear, and adduce evidence, at the hearing of
the application.
(4) Despite section 7, an interest in property is not available to satisfy
a proceeds assessment order made against a person who has effective control of
the interest unless the court makes a declaration under this section in relation
to the interest.
(1) If:
(a) the Official Trustee has, under a restraining order, taken control of
an interest in property, and
(b) a proceeds assessment order has been made against the person entitled
to the interest,
a court may, on application by the Official Trustee, make an order (in
this section referred to as the later order) directing the
Official Trustee to pay to the Minister for Finance an amount sufficient to
discharge the debt created by section 30 arising under the proceeds assessment
order.
(2) For the purpose of enabling the Official Trustee to comply with the
later order, the court may, by that order or by a subsequent order:
(a) direct the Official Trustee to sell or otherwise dispose of a
specified interest in property under the control of the Official Trustee,
and
(b) appoint an officer of the court or any other person to execute any
deed or instrument in the name of the person entitled to the interest and to do
all acts and things necessary to give validity and operation to the deed or
instrument.
(3) The execution of the deed or instrument by the person so appointed has
the same force and validity as it would have if it had been executed by the
person who was entitled to the interest to which it relates.
(4) As soon as practicable after the making of the later order, the
Official Trustee:
(a) is to apply the money which has come into the Official Trustee's
possession or under the Official Trustee's control because of the sale or other
disposition specified in the later order, or the subsequent order, or otherwise
in the course of the performance of the Official Trustee's duties in respect of
the interests in property to which the restraining order relates, in payment
of:
(i) the fees payable in connection with, and
(ii) the expenses incurred by the Official Trustee in or in connection
with,
the performance of the duties imposed on the Official Trustee under the
restraining order, including the expenses incurred by the Official Trustee in or
in connection with the sale or other disposition of any of the interests in
property to which the restraining order relates, and
(b) is to pay the rest of the money as provided by subsection
(5).
(5) If the money to which subsection (4) (b) applies exceeds the amount
required to discharge the debt arising under the proceeds assessment order, the
Official Trustee is to use the money to discharge the debt by payment of the
appropriate amount to the Minister for Finance and, if the property sold or
disposed of:
(a) was also the subject of an assets forfeiture order—is to pay the
balance of the money to the Minister for Finance, or
(b) was not the subject of an assets forfeiture order—is to pay the
balance of the money to the person against whom the proceeds assessment order
was made.
(6) Money paid to the Minister for Finance under subsection (5) is to be
credited to the Proceeds Account.
(7) If the Official Trustee pays, in accordance with the later order,
money to the Minister for Finance in respect of the liability of a person under
a proceeds assessment order, the liability of the person under the proceeds
assessment order is discharged to the extent of the payment.
(1) If a court makes a proceeds assessment order against a person, all the
interests of the person in property are, while the assessed amount remains
unpaid, charged in favour of the Crown to the extent necessary to secure payment
of the assessed amount.
(2) A charge created by subsection (1) on the making of a proceeds
assessment order ceases to have effect:
(a) if the proceeds assessment order is discharged on the hearing of an
appeal against the making of the order, or
(b) on payment to the Minister for Finance of the assessed amount,
or
(c) on the bankruptcy of the person subject to the order, or
(d) on the sale or other disposition of the interest charged under the
authority of this Act except under section 10 (8) (b) or 14, or
(e) on the sale of the interest charged to a purchaser for sufficient
consideration who, at the time of purchase, had no notice of the charge,
whichever first occurs.
(3) A charge that, on the making of a proceeds assessment order, is
created by subsection (1) over an interest in property:
(a) is subject to every encumbrance on the property that came into
existence before the charge and that would, apart from this paragraph, have
priority over the charge, and
(b) has priority over all other encumbrances, and
(c) subject to subsection (2), is not affected by any change of ownership
of the interest charged.
(4) If a charge is created by subsection (1) on an interest in property of
a particular kind and the provisions of any law of the Commonwealth or of a
State or Territory, provide for the registration of title to, interests in, or
charges over, property of that kind, the Official Trustee or an appropriate
officer may cause the charge so created to be registered under the provisions of
that law.
(1) If an authorised officer has reasonable grounds for suspecting that a
person has possession or control of a property-tracking document, or
property-tracking documents, the authorised officer may:
(a) lay before a court an information on oath setting out those grounds,
and
(b) apply to the court, ex parte, for a production order against the
person suspected of having possession or control of the document or
documents.
(2) The court may order the person against whom an application for a
production order is made under subsection (1):
(a) except in the case of bankers' books, to produce to an authorised
officer at a specified time, or between specified times, and at a specified
place any property-tracking documents that are in the person's possession or
control, or
(b) to make available to an authorised officer, for inspection at a
specified time or times, or between specified times, at the place at which they
are kept, any property-tracking documents that are in the person's possession or
control.
(3) In this section:
bankers' books means any accounting records of a bank used in
its ordinary business of banking, and includes ledgers, day-books, cash-books
and account books.
(1) If a document is produced to an authorised officer under a production
order, the authorised officer may do any one or more of the following:
(a) inspect the document,
(b) take extracts from the document,
(c) make copies of the document,
(d) retain the document if, and for so long as, its retention is
reasonably necessary for the purposes of this Act.
(2) If a document is made available to an authorised officer for
inspection under a production order, the authorised officer may do any one or
more of the following:
(a) inspect the document,
(b) take extracts from the document,
(c) make copies of the document.
(3) An authorised officer who retains a document under subsection (1) (d)
must, on request by the person against whom the order is made:
(a) give the person a copy of the document certified by the authorised
officer in writing to be a true copy of the document, and
(b) unless the person has received a copy of the document under paragraph
(a)—permit the person to do any one or more of the following:
(i) inspect the document,
(ii) take extracts from the document,
(iii) make copies of the document.
(1) A person is not excused from complying with a production order on the
ground that:
(a) the production or making available of the document might tend to
incriminate the person or make the person liable to a forfeiture or penalty,
or
(b) the production or making available of the document would be in breach
of an obligation (whether imposed by an enactment or otherwise) of the person
not to disclose the existence or contents of the document, or
(c) the production or making available of the document would disclose
information that is the subject of legal professional privilege.
(2) If a person objects to a production order:
(a) the production or making available of the document, or
(b) any document or thing obtained as a consequence of the production or
making available of the document,
is not admissible against the person in any criminal proceedings except
proceedings for an offence under section 40 (Failure to comply with production
order).
If a court makes an order under section 36 requiring a person to produce
a document to an authorised officer, the person may apply to the court for a
variation of the order and the court may, if satisfied that the document is
essential to the business activities of the person, vary the production order so
that it requires the person to make the document available under section
36(2)(b) to an authorised officer for inspection.
(1) If a person is required by a production order to produce a document to
an authorised officer or to make a document available to an authorised officer
for inspection, the person is guilty of an offence if the person:
(a) contravenes the order without reasonable excuse, or
(b) in purported compliance with the order produces or makes available a
document known to the person to be false or misleading in a material particular
without:
(i) indicating to the authorised officer to whom the document is produced
or made available that the document is false or misleading and the respect in
which the document is false or misleading, and
(ii) providing correct information to the authorised officer if the person
is in possession of, or can reasonably acquire, the correct
information.
Maximum penalty: 500 penalty units if the offender is a body corporate
or, in any other case, 100 penalty units or imprisonment for 2 years, or
both.
(2) It is sufficient compliance with a requirement of a production order
that a person produce a document or make a document available if:
(a) the person has provided the DPP with a statement verified by statutory
declaration to the effect that the person does not have possession and does not
have control of the document, and
(b) the DPP has notified the person in writing that the DPP is prepared to
accept provision of the statement as compliance with the order.
(1) A person against whom a production order is made must not
disclose:
(a) the existence or nature of the order, or
(b) any information to a person from which the person could reasonably be
expected to infer the existence or nature of the order.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or
both.
(2) Subsection (1) does not apply to a production order unless it (or a
notice accompanying it) specifies that information about the order must not be
disclosed.
(3) A person does not contravene this section if:
(a) the disclosure is made to an employee, agent or other person in order
to obtain a property-tracking document to comply with the order and the
employee, agent or other person is directed not to inform the person to whom the
document relates about the matter, or
(b) the disclosure is made to obtain legal advice or representation in
relation to the order, or
(c) the disclosure is made for the purposes of, or in the course of, legal
proceedings.
(1) An authorised officer may apply to an issuing officer in accordance
with Part 1AA of the Crimes Act 1914 for the issue of a search warrant
under this Division if the authorised officer has reasonable grounds for
believing that there is or, within 72 hours, will be on any premises:
(a) anything in which a person has an interest that constitutes serious
crime derived property, or
(b) anything in which a person has an interest that constitutes illegally
acquired property of a person reasonably suspected of having been engaged in
serious crime related activities, or
(c) evidence of a serious crime related activity, or
(d) evidence of illegal activity of a person reasonably suspected of
having been engaged in serious crime related activities, or
(e) property an interest in which is subject to a restraining
order.
(2) The issuing officer to whom the application for a search warrant is
made may, if satisfied that there are reasonable grounds for doing so, issue a
search warrant authorising an authorised officer (who, if, an AFP member or the
member of a police force of a State or Territory, need not be named in the
warrant) to enter the premises and there search for any or all of the property
or evidence referred to in subsection (1).
(3) Nothing in this Division limits the operation of Part 1AA of the
Crimes Act 1914.
(1) The person or persons executing a search warrant under this Division
may seize anything that might reasonably be suspected of being:
(a) something in which a person has an interest that constitutes serious
crime derived property, or
(b) something in which a person has an interest that constitutes illegally
acquired property of a person reasonably suspected of having been engaged in
serious crime related activities, or
(c) evidence of a serious crime related activity, or
(d) evidence of illegal activity of a person reasonably suspected of
having been engaged in serious crime related activities, or
(e) property an interest in which is subject to a restraining
order.
(2) The power conferred by this section to seize anything
includes:
(a) power to remove it from the premises where it is found, and
(b) power to guard it on those premises.
(3) A person executing a search warrant issued under this Division may
search a person found on the premises who might reasonably be suspected of being
in possession of property or evidence that may be seized under this
section.
(4) A person executing a search warrant issued under this Division
may:
(a) examine any property or evidence seized in executing the warrant,
and
(b) inspect and test any such property, and
(c) in the case of evidence that is a document—make copies of, and
take extracts from, the document.
(1) If property or evidence is seized when a search warrant issued under
this Division is executed, reasonable measures for its preservation while in
custody are to be taken:
(a) by the DPP if the warrant was issued on the application of the DPP or
a member of staff of the Office of the DPP, or
(b) in any other case, by the Commissioner.
(2) A person authorised by the DPP or the Commissioner for the purpose
may:
(a) examine any property or evidence seized when a search warrant issued
under this Division is executed, and
(b) inspect and test any such property, and
(c) in the case of evidence that is a document—make copies of, and
take extracts from, the document.
(1) If:
(a) property has been seized pursuant to a search warrant issued under
this Division, and
(b) at the time when the property was seized, a restraining order
affecting an interest in the property had not been applied for or granted,
and
(c) before the expiration of 7 days after the property was seized, such a
restraining order had not been applied for or granted or, if applied for, had
been refused, and
(d) the responsible person does not propose to use the property as
evidence in any proceedings,
the responsible person is to arrange for the property to be returned, at
the expiration of that period, to the person from whose possession it was
seized.
(2) In this section:
responsible person, in relation to property, means:
(a) if the property is in the custody, or under the control, of the
DPP—the DPP, or
(b) if the property is in the custody, or under the control, of an
authorised officer other than the DPP—the Commissioner.
A person who, without reasonable excuse, obstructs or hinders a person
executing a search warrant issued under this Division is guilty of an
offence.
Maximum penalty: 20 penalty units or imprisonment for 2 years, or
both.
With the consent of the occupier of premises, an authorised officer
may:
(a) enter the premises, and
(b) search the premises for any property-tracking document, and
(c) seize any document found in the course of the search that the
authorised officer believes, on reasonable grounds, to be a property-tracking
document.
If an authorised officer has reasonable grounds for suspecting that a
property-tracking document is, or may be within the next following 72 hours, in
or on any premises, the authorised officer may:
(a) lay before a court an information on oath setting out those grounds,
and
(b) apply to the court for the issue of a search warrant under section 46
in respect of the premises.
(1) If an application is made under section 48 for a search warrant in
respect of premises, the court may issue a search warrant authorising an
authorised officer (who, if an AFP member or a member of the police force of a
State or Territory need not be named in the warrant), with such assistance, and
by the use of such force, as is necessary and reasonable:
(a) to enter the premises, and
(b) to search the premises for property-tracking documents, and
(c) to seize any document found in the course of the search that the
authorised officer believes, on reasonable grounds, to be a property-tracking
document.
(2) A court is not to issue a search warrant under this section unless the
court is satisfied that:
(a) the document involved cannot be identified or described with
sufficient particularity for the purpose of obtaining a production order in
respect of the document, or
(b) a production order has been made in respect of the document and has
not been complied with, or
(c) a production order in respect of the document would be unlikely to be
effective because there are reasonable grounds to suspect that such a production
order would not be complied with, or
(d) the investigation for the purposes of which the search warrant is
being sought might be seriously prejudiced if the authorised officer does not
gain immediate access to the document without notice to any person.
There must be stated in a search warrant issued under section
49:
(a) whether entry is authorised to be made at any time of the day or night
or only during specified hours of the day or night, and
(b) the date, not being later than one month after the day of issue of the
warrant, on which the warrant ceases to have effect.
If an authorised officer executing a search warrant issued under section
49:
(a) finds any document or other thing that the authorised officer
believes, on reasonable grounds, will afford evidence of a criminal offence,
and
(b) believes, on reasonable grounds, that it is necessary to seize the
document or thing in order to prevent its concealment, loss or
destruction,
the search warrant is to be taken to authorise seizure of the document or
thing.
(1) The fact that a document contains or may contain information that is
the subject of legal professional privilege does not prevent seizure of the
document under the authority of a search warrant issued under this
Division.
(2) If a person objects to the seizure of a document under the authority
of such a search warrant on the ground that the document contains or may contain
information that is the subject of legal professional privilege, any
information, document or thing obtained as a direct or indirect consequence of
the seizure of the document is not admissible in any criminal proceedings
against the person entitled to claim that privilege.
(1) If an authorised officer has reasonable grounds for suspecting that a
financial institution may obtain information about transactions conducted by a
particular person with the institution, the officer may:
(a) lay before a court an information on oath setting out those grounds,
and
(b) apply to the court for the making of an order directing the financial
institution to give to a law enforcement authority, or to an authorised officer
nominated by the DPP, information obtained by the institution about transactions
conducted by the person with the institution.
(2) The court is not to make a monitoring order unless satisfied that
there are reasonable grounds for suspecting that the person in respect of whose
transactions the information is sought:
(a) has been, or is about to be, involved in a serious crime related
activity, or
(b) has acquired, or is about to acquire, directly or indirectly, any
serious crime derived property or, in the case of a person referred to in
paragraph (a), any illegally acquired property.
(3) A monitoring order must specify:
(a) the nature of the transactions to be monitored, and
(b) the kind of information that the institution is required to give,
and
(c) the manner in which the information is to be given.
(4) A monitoring order applies in relation to transactions conducted
during the period specified in the order (being a period commencing not earlier
than the day on which notice of the order is given to the financial institution
and ending not later than 3 months after the date of the order).
(5) If the court makes a monitoring order, the person who applied for the
order must give notice of the order to the financial institution to which the
order applies.
A financial institution that has been given notice of a monitoring order
is guilty of an offence if it knowingly:
(a) contravenes the order, or
(b) provides false or misleading information in purported compliance with
the order.
Maximum penalty: 1,000 penalty units.
(1) A financial institution that is, or has been, subject to a monitoring
order is guilty of an offence if it discloses the existence or the operation of
the order to any person (including the person to whom the order relates)
except:
(a) the DPP or the person authorised by the DPP and named in the order,
or
(b) an officer or agent of the institution, for the purpose of ensuring
that the order is complied with, or
(c) a barrister or solicitor, for the purpose of obtaining legal advice or
representation in relation to the order.
Maximum penalty: 1,000 penalty units.
(2) A person described in subsection (1) (a), (b) or (c) to whom the
existence or operation of a monitoring order has been disclosed (whether in
accordance with subsection (1) or a previous application of this subsection or
otherwise) is guilty of an offence if he or she:
(a) while still a person so described—discloses the existence or
operation of the order, otherwise than to another person described in subsection
(1) (a), (b) or (c) for the purpose of:
(i) if the disclosure is made by a person described in subsection (1)
(a)—the performance of that person's duties, or
(ii) if the disclosure is made by an officer or agent of the
institution—ensuring that the order is complied with or obtaining legal
advice or representation in relation to the order, or
(iii) if the disclosure is made by a barrister or solicitor—giving
legal advice, or making representations, in relation to the order, or
(b) while no longer a person so described—makes a record of, or
discloses, the existence or operation of the order in any
circumstances.
Maximum penalty: 100 penalty units or imprisonment for 2 years, or
both.
(3) Nothing in subsection (2) prevents the disclosure by a person
described in subsection (1) (a) of the existence or operation of a monitoring
order:
(a) for the purposes of, or in connection with, legal proceedings,
or
(b) in the course of proceedings before a court.
(4) A person described in subsection (1) (a) is not to be required to
disclose to any court the existence or operation of a monitoring
order.
(5) A reference in this section to disclosing the existence or operation
of a monitoring order to a person includes a reference to disclosing to the
person information from which the person could reasonably be expected to infer
the existence or operation of the monitoring order.
(1) If a financial institution has reasonable grounds for believing that
information it has about a transaction with the institution:
(a) might be relevant to an investigation of a serious crime related
activity or the making of a confiscation order, or
(b) might otherwise be of assistance in the enforcement of this Act or the
regulations,
the institution may give the information to a law enforcement
authority.
(2) An action, suit or proceeding does not lie against:
(a) a financial institution, or
(b) an officer, employee or agent of the institution acting in the course
of the person's employment or agency,
in relation to the giving of the information by the institution or person
under this section.
(1) Subject to section 58, jurisdiction with respect to matters arising
under this Act is vested in:
(a) The Federal Court of Australia; and
(b) The Federal Magistrates Court; and
(c) The Supreme Court of each State and Territory.
(2) The jurisdiction vested in a court by virtue of subsection (1) is not
limited by any limits to which any other jurisdiction of the court may be
subject.
(3) Jurisdiction is vested in a court of a Territory (including the
Northern Territory) by virtue of subsection (1) so far only as the Constitution
permits.
(1) Except as otherwise provided by this section, proceedings for an
offence under this Act are to be dealt with before the several courts of a State
or Territory, exercising summary jurisdiction.
(2) Proceedings for an offence under section 16 are to be dealt with
before a Supreme Court of a State or Territory in its summary
jurisdiction.
(3) Proceedings for an offence under section 54 (Offences relating to
monitoring order) or 55 (1) (which relates to disclosure of the existence of a
monitoring order) are to be taken before the Supreme Court of a State or
Territory in its summary jurisdiction.
(4) If proceedings for an offence are dealt with before a court exercising
summary jurisdiction (other than a Supreme Court), the maximum penalty that the
Court may impose is 100 penalty units or the maximum penalty provided for the
offence, whichever is less.
(1) In any proceedings on an application for an order under this Act, the
court may, in determining the application, have regard to the transcript of any
proceedings against a person for an offence to which the application relates and
to the evidence given in any such proceedings.
(2) In any proceedings on an application for an order under this Act, the
transcript of any examination under section 12 is evidence of the answers given
by a person to a question put to the person in the course of the
examination.
(1) If it is necessary, for the purposes of this Act, to establish the
state of mind of a body corporate in respect of conduct engaged in, or taken by
subsection (2) to have been engaged in, by the body corporate, it is sufficient
to show that a director, employee or agent of the body corporate (being a
director, employee or agent by whom the conduct was engaged in within the scope
of his or her actual or apparent authority) had that state of mind.
(2) Any conduct engaged in on behalf of a body corporate:
(a) by a director, employee or agent of the body corporate within the
scope of his or her actual or apparent authority, or
(b) by any other person at the direction or with the consent or agreement
(whether express or implied) of a director, employee or agent of the body
corporate, if the giving of the direction, consent or agreement is within the
scope of the actual or apparent authority of the director, employee or
agent,
is to be taken, for the purposes of this Act, to have been engaged in by
the body corporate.
(3) If it is necessary, for the purposes of this Act, to establish the
state of mind of a person in relation to conduct taken by subsection (4) to have
been engaged in by the person, it is sufficient to show that an employee or
agent of the person (being an employee or agent by whom the conduct was engaged
in within the scope of his or her actual or apparent authority) had that state
of mind.
(4) Conduct engaged in on behalf of a person other than a body
corporate:
(a) by an employee or agent of the person within the scope of his or her
actual or apparent authority, or
(b) by any other person at the direction or with the consent or agreement
(whether express or implied) of an employee or agent of the first-mentioned
person, where the giving of the direction, consent or agreement is within the
scope of the actual or apparent authority of the employee or agent,
is to be taken, for the purposes of this Act, to have been engaged in by
the first-mentioned person.
(5) A reference in this section to the state of mind of a person includes
a reference to the knowledge, intention, opinion, belief or purpose of the
person and the person's reasons for the person's knowledge, intention, opinion,
belief or purpose.
(6) A reference in this section to a director of a body corporate includes
a reference to a constituent member of a body corporate incorporated for a
public purpose by a law of the Commonwealth, of a State or of a
Territory.
The fact that a restraining order or an assets forfeiture order has been
made on the basis of a person's serious crime related activity does not prevent
the making of another or other restraining orders or assets forfeiture orders on
the basis of that activity.
(1) The purpose of this section is to provide for an order of a court
under this Act in relation to an interest of a person in property to be extended
to other interests in the property (whether of that person or another person)
if:
(a) the proceeds of disposal of those interests combined would be likely
to be greater than the proceeds of disposal of each of the interests separately,
or
(b) the disposal of the interests separately would be impracticable or
significantly more difficult than disposal of the combined interests.
(2) When a court makes an order under this Act in relation to an interest
of a person in property, the court may, if it is consistent with the purpose of
this section to do so, by that order or a subsequent order direct that the order
is also to apply to specified other interests in the property.
(3) When the court extends the operation of an order to an interest in
property that the order would not (but for this section) have applied to, the
court may make such ancillary orders as it thinks fit for the protection of the
person whose interest it is, such as:
(a) an order declaring that there is payable to the person a specified
amount as the value of the person's interest in the property, or
(b) an order directing that specified other interests in the property be
transferred to the person.
(4) In deciding whether to declare that an amount is payable to a person
or to direct that an interest in property be transferred to a person, the court
is to have regard to:
(a) the nature, extent and value of the person's interest in the property
concerned, and
(b) if the court is aware that any other person claims an interest in the
property—the nature, extent and value of the interest claimed,
and
(c) any other matter that seems to the court to be relevant.
(1) Any notice authorised or required to be given to a person under this
Act is, if the person is dead, sufficiently given if given to the person's legal
personal representative.
(2) A reference in this Act to an interest in property of a person is, in
the case of a person who is dead, a reference to an interest in the property
that the person had immediately before death.
(3) An order can be applied for and made under this Act:
(a) in respect of a person's interest in property even if the person is
dead, and
(b) on the basis of the activities of a person who is dead.
(1) If a person has an interest in property as joint owner of the
property, the person's death after a restraining order is made in respect of the
interest does not (while the order is in force), and notwithstanding the
provisions of the law of a State or Territory to the contrary, operate to vest
the interest in the surviving joint owner or owners and the restraining order
continues to apply to the interest as if the person had not died.
(2) An assets forfeiture order made in respect of that interest applies as
if the order took effect in relation to the interest immediately before the
person died.
(3) If a restraining order ceases to apply to an interest in property
without an assets forfeiture order being made in respect of that interest,
subsection (1) is taken not to have applied to the interest.
(1) In this section: scheme means:
(a) any agreement, arrangement, understanding, promise or undertaking,
whether express or implied and whether or not enforceable, or intended to be
enforceable, by legal proceedings, or
(b) any scheme, plan, proposal, action, course of action or course of
conduct.
(2) If a court is satisfied on the application of the DPP that a scheme
carried out by a person was carried out for the purpose of directly or
indirectly defeating, avoiding, preventing or impeding the operation of this Act
in any respect, the court may for the purpose of defeating that
purpose:
(a) make an order declaring the scheme void in whole or in part,
or
(b) make an order varying the operation of the scheme in whole or in
part.
(3) The court may also make such orders as may be just in the
circumstances for or with respect to any consequential or related matter or for
giving effect to any orders of the court under this section, including any of
the following orders:
(a) the making of any disposition of property,
(b) the payment of money,
(c) the sale or other realisation of property and the disposition of the
proceeds,
(d) the creation of a charge on property in favour of any person and the
enforcement of a charge so created.
(4) The court may rescind or vary any order of the court under this
section.
(1) This Act binds the Crown in right of the Commonwealth, of each of the
States, of the Northern Territory and of Norfolk Island.
(2) Nothing in this Act renders the Crown in right of the Commonwealth, of
a State, of the Northern Territory or of Norfolk Island liable to be persecuted
for an offence.
(1) A restraining order cannot be made under this Act and under the
Proceeds of Crime Act 1989 so as to be in force in respect of the same
interest in property at the same time.
(2) Except as provided by this section, this Act does not affect the
exercise of a function under another Act and another Act does not affect the
exercise of a function under this Act.
If:
(a) a person has been charged with an offence in relation to a serious
crime related activity and proceedings on the charge have not commenced or, if
the proceedings have commenced, they have not been completed, and
(b) proceedings are instituted under this Act for a restraining order, or
an assets forfeiture order, affecting an interest of the person in property, or
for a proceeds assessment order against the person,
the court before which the proceedings have been instituted may make such
orders as it thinks fit with respect to the publication of any matter arising
under this Act.
The fact that criminal proceedings have been instituted or have commenced
(whether or not under this Act) is not a ground on which the Federal Court may
stay proceedings under this Act that are not criminal proceedings.
(1) The regulations may make provision for and with respect to the manner
in which a notice authorised or required by this Act to be given to a person is
to be given.
(2) Any such provisions may include provision for substituted
service.
(3) A person is to be considered to have been given notice if all
reasonable efforts were made to give the notice whether or not the person
actually received notice.
(1) The Governor-General may make regulations, not inconsistent with this
Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(2) A regulation may create an offence punishable by a penalty not
exceeding 20 penalty units.
(3) The regulations may include provisions of a saving or transitional
nature consequent on the enactment of this Act.
(4) A provision referred to in subsection (3) may, if the regulations so
provide, take effect from the date of assent to the Act concerned or from a
later date.
(5) To the extent to which a provision referred to in subsection (3) takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
Commonwealth or an authority of the Commonwealth), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the Commonwealth or an
authority of the Commonwealth), in respect of anything done or omitted to be
done before the date of its publication.
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