PROCEEDS OF CRIME ACT 2002 NO. 85, 2002

Commonwealth Numbered Acts

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PROCEEDS OF CRIME ACT 2002 NO. 85, 2002

TABLE OF PROVISIONS

Long Title

CHAPTER 1--Introduction

PART 1-1--PRELIMINARY

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

PART 1-2--OBJECTS

5. Principal objects

PART 1-3--OUTLINE OF THIS ACT

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

PART 1-4--APPLICATION

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

CHAPTER 2--The confiscation scheme

PART 2-1--RESTRAINING ORDERS

16. Simplified outline of this Part

Division 1--Making restraining orders

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

Division 2--How restraining orders are obtained

25. DPP may apply for a restraining order
26. Notice of application
27. DPP may choose under which section it applies for a restraining order
28. Prejudice to investigations

Division 3--Excluding property from restraining orders

29. Court may exclude property from a restraining order
30. Application to exclude property from a restraining order after notice of the application for the order
31. Application to exclude property from a restraining order after notice of the order
32. Application not to be heard unless DPP has had reasonable opportunity to conduct an examination

Division 4--Giving effect to restraining orders

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

Division 5--Further orders

38. Court may order Official Trustee to take custody and control of property
39. Ancillary orders
40. Contravening ancillary orders relating to foreign property

Division 6--Duration of restraining orders

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

PART 2-2--FORFEITURE ORDERS

46. Simplified outline of this Part

Division 1--Making forfeiture orders

47. Forfeiture orders—conduct constituting serious offences
48. Forfeiture orders—convictions for indictable offences
49. Forfeiture orders—conduct constituting indictable offences etc.
50. Existence of other confiscation orders
51. Acquittals do not affect forfeiture orders under section 47 or 49
52. Making of forfeiture order if person has absconded
53. Jurisdictional issues concerning forfeiture orders

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

54. Presumption in certain cases that property is an instrument of an offence
55. Forfeiture orders can extend to other interests in property
56. Forfeiture orders must specify the value of forfeited property
57. A person may buy back forfeited property
58. The court may also make supporting directions

Division 3--How forfeiture orders are obtained

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

Division 4--Effect of forfeiture orders

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

Division 5--Reducing the effect of forfeiture orders

72. Relieving certain dependants from hardship
73. Making exclusion orders
74. Applying for exclusion orders
75. Giving notice of matters relevant to an application
76. When an application can be heard
77. Making compensation orders
78. Applying for compensation orders
79. Giving notice of matters relevant to an application

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

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

Division 7--Miscellaneous

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

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

91. Simplified outline of this Part

Division 1--Forfeiture on conviction of a serious offence

92. Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence
93. Making an extension order extending the period before property is forfeited
94. Excluding property from forfeiture under this Part
95. Court may declare that property has been forfeited under this Part

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

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

Division 3--Recovery of forfeited property

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

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

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

PART 2-4--PECUNIARY PENALTY ORDERS

115. Simplified outline of this Part

Division 1--Making pecuniary penalty orders

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

Division 2--Penalty amounts

121. Determining penalty amounts
122. Evidence the court is to consider
123. Value of benefits derived—non-serious offences
124. Value of benefits derived—serious offences
125. Value of benefits may be as at time of assessment
126. Matters that do not reduce the value of benefits
127. Benefits already the subject of pecuniary penalty
128. Property under a person's effective control
129. Effect of property vesting in an insolvency trustee
130. Reducing penalty amounts to take account of forfeiture and proposed forfeiture
131. Reducing penalty amounts to take account of tax paid
132. Reducing penalty amounts to take account of fines etc.
133. Varying pecuniary penalty orders to increase penalty amounts

Division 3--How pecuniary penalty orders are obtained

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

Division 4--Enforcement of pecuniary penalty orders

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

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

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

PART 2-5--LITERARY PROCEEDS ORDERS

151. Simplified outline of this Part

Division 1--Making literary proceeds orders

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

Division 2--Literary proceeds amounts

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

Division 3--How literary proceeds orders are obtained

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

Division 4--Enforcement of literary proceeds orders

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

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

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

Division 6--Literary proceeds orders covering future literary proceeds

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

CHAPTER 3--Information gathering

PART 3-1--EXAMINATIONS

Division 1--Examination orders

180. Examination orders relating to restraining orders
181. Examination orders relating to applications for confirmation of forfeiture
182. Applications for examination orders

Division 2--Examination notices

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

Division 3--Conducting examinations

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

Division 4--Offences

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

PART 3-2--PRODUCTION ORDERS

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

PART 3-3--NOTICES TO FINANCIAL INSTITUTIONS

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

PART 3-4--MONITORING ORDERS

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

PART 3-5--SEARCH AND SEIZURE

Division 1--Search warrants

225. Issuing a search warrant
226. Additional contents of the information
227. Contents of warrants
228. The things that are authorised by a search warrant
229. Applying for search warrants by telephone or other electronic means
230. Issuing warrants by telephone etc.
231. Unsigned telephone warrants in court proceedings
232. Offence for stating incorrect names in telephone warrants
233. Offence for unauthorised form of warrant
234. Offence for execution etc. of unauthorised form of warrant
235. Offence for giving unexecuted form of warrant
236. Warrants that must be executed only during particular hours
237. Restrictions on personal searches
238. Availability of assistance and use of force in executing a warrant
239. Announcement before entry
240. Details of warrant to be given to occupier etc.
241. Occupier entitled to be present during search
242. Specific powers available to officers executing the warrant
243. Use of equipment to examine or process things
244. Moving things to another place for examination or processing
245. Use of electronic equipment at premises
246. Person with knowledge of a computer or a computer system to assist access etc.
247. Securing electronic equipment
248. Compensation for damage to electronic equipment
249. Copies of seized things to be provided
250. Providing documents after execution of a search warrant

Division 2--Stopping and searching conveyances

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

Division 3--Dealing with things seized

253. Receipts for things seized under warrant
254. Responsibility for things seized
255. Effect of obtaining forfeiture orders
256. Returning seized things
257. Authorised officer may apply for a thing to be retained for a further period
258. Magistrate may order that the thing be retained
259. Return of seized property to third parties
260. Return of seized property if applications are not made for restraining orders or forfeiture orders
261. Effect of obtaining restraining orders
262. Effect of refusing applications for restraining orders or forfeiture orders

Division 4--General

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

CHAPTER 4--Administration

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

Division 1--Preliminary

267. Property to which the Official Trustee's powers and duties under this Part apply

Division 2--Obtaining information about controlled property

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

Division 3--Dealings relating to controlled property

276. Preserving controlled property
277. Rights attaching to shares
278. Destroying or disposing of property
279. Notice of proposed destruction or disposal
280. Procedure if person objects to proposed destruction or disposal
281. Proceeds from sale of property

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

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

Division 5--Miscellaneous

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

PART 4-2--LEGAL ASSISTANCE

292. Payments to legal aid commissions for representing suspects and other persons
293. Payments made out of the Confiscated Assets Account
294. Disclosure of information to legal aid commissions

PART 4-3--CONFISCATED ASSETS ACCOUNT

295. Establishment of Account
296. Credits to the Account
297. Payments out of the Account
298. Programs for expenditure on law enforcement, drug treatment etc.
299. Determinations by Official Trustee about suspended and distributable funds

PART 4-4--CHARGES OVER RESTRAINED PROPERTY FOR PAYMENT OF CERTAIN AMOUNTS

Division 1--Charges to secure certain amounts payable to legal aid commissions

300. Legal aid commissions' charges
301. When the charge ceases to have effect
302. Priority of charge

Division 2--Charges to secure certain amounts payable to the Commonwealth

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

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

Division 1--Interstate restraining orders

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

Division 2--Interstate forfeiture orders

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

Division 3--Miscellaneous

313. Interim registration of faxed copies

CHAPTER 5--Miscellaneous

314. State and Territory courts to have jurisdiction
315. Proceedings are civil, not criminal
316. Consent orders
317. Onus and standard of proof
318. Proof of certain matters
319. Stay of proceedings
320. Effect of the confiscation scheme on sentencing
321. Deferral of sentencing pending determination of confiscation order
322. Appeals
323. Costs
324. Powers conferred on judicial officers in their personal capacity
325. Effect of a person's death
326. Operation of other laws not affected
327. Review of operation of Act
328. Regulations

CHAPTER 6--Interpreting this Act

PART 6-1--MEANING OF SOME IMPORTANT CONCEPTS

Division 1--Proceeds and instrument of an offence

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

Division 2--Convicted and related concepts

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

Division 3--Other concepts

335. Proceeds jurisdiction
336. Meaning of derived
337. Meaning of effective control

PART 6-2--DICTIONARY

338. Dictionary

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