PROCEEDS OF CRIME ACT 2002 No. 85, 2002

Commonwealth Numbered Acts

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PROCEEDS OF CRIME ACT 2002 No. 85, 2002 - SECT 338

Dictionary

In this Act, unless the contrary intention appears:

"abscond" has the meaning given by section 334.

"account" means any facility or arrangement through which a ^*financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for:

(a): a ^*fixed term deposit; and
(b): a safety deposit box.

"AFP member" means a member, or special member, (within the meaning of the Australian Federal Police Act 1979 ) of the Australian Federal Police.

"agent" includes, if the agent is a corporation, the ^*officers and agents of the corporation.

"appropriate officer" means the ^*DPP or a person included in a class of persons declared by the regulations to be within this definition.

"approved examiner" has the meaning given by subsection 183(4).

"AUSTRAC" means the Australian Transaction Reports and Analysis Centre.

"Australia", when used in a geographical sense, includes the external Territories.

"authorised officer" means:

(a): an ^*AFP member who is authorised by the Commissioner of the Australian Federal Police; or
(b): a member, or member of the staff, (within the meaning of the National Crime Authority Act 1984 ) of the National Crime Authority who is authorised by the Chairperson of the National Crime Authority; or
(c): an officer of Customs (within the meaning of the Customs Act 1901 ) who is authorised by the CEO of Customs; or
(d): a member, or staff member, (within the meaning of the Australian Securities and Investments Commission Act 2001 ) of the Australian Securities and Investments Commission who is authorised by the Chairperson of the Australian Securities and Investments Commission; or
(e): a member, officer or employee of any other agency specified in the regulations who is authorised by the head of that agency.

"bankruptcy court" means a court having jurisdiction in bankruptcy under the Bankruptcy Act 1966 .

"benefit" includes service or advantage.

"books" includes any account, deed, paper, writing or document and any record of information however compiled, recorded or stored, whether in writing, on microfilm, by electronic process or otherwise.

"charged": a person is charged with an offence if an information is laid against the person for the offence whether or not:

(a): a summons to require the attendance of the person to answer the information has been issued; or
(b): a warrant for the arrest of the person has been issued.

"compensation order" means an order made under subsection 77(1).

"Confiscated Assets Account "means the account established under section 295.

"confiscation order" means a ^*forfeiture order, a ^*pecuniary penalty order or a ^*literary proceeds order.

"controlled property" has the meaning given by section 267.

"conveyance" includes an aircraft, vehicle or vessel.

"convicted" has the meaning given by section 331.

"conviction day" has the meaning given by section 333.

"corresponding law "means a law of a State or of a ^*self-governing Territory that is declared by the regulations to be a law that corresponds to this Act.

"criminal proceeding", in relation to a ^*foreign serious offence, has the same meaning as in the ^*Mutual Assistance Act.

"Customs officer" means an officer of Customs within the meaning of the Customs Act 1901 .

"data" includes:

(a): information in any form; or
(b): any program (or part of a program).

"data held in a computer" includes:

(a): ^*data held in any removable ^*data storage device for the time being held in a computer; or
(b): data held in a data storage device on a computer network of which the computer forms a part.

"data storage device" means a thing containing, or designed to contain, ^*data for use by a computer.

"deal": dealing with a person's property includes:

(a): if a debt is owed to that person—making a payment to any person in reduction of the amount of the debt; and
(b): removing the property from ^*Australia; and
(c): receiving or making a gift of the property; and
(d): if the property is covered by a ^*restraining order — engaging in a transaction that has the direct or indirect effect of reducing the value of the person's interest in the property.

"dependant": each of the following is a dependant of a person:

(a): the person's spouse or de facto partner;
(b): the person's child, or member of the person's household, who depends on the person for support.

"derived" has the meaning given by section 336.

"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): any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act, other than when those directors only do so:

(i): in the proper performance of the functions attaching to the person's professional capacity; or
(ii): in their business relationship with the person.

"discretionary trust" means a trust where:

(a): a person (who may include the trustee) is empowered (either unconditionally or on the fulfilment of a condition) to exercise any power of appointment or other discretion; and
(b): the exercise of the power or discretion, or the failure to exercise the power or discretion, has the effect of determining, to any extent, either or both of the following:

(i): the identities of those who may benefit under the trust;
(ii): how beneficiaries are to benefit, as between themselves, under the trust.

"distributable funds "has the meaning given by subsection 299(7).

"DPP" means the Director of Public Prosecutions.

"effective control "has a meaning affected by section 337.

"encumbrance", in relation to property, includes any ^*interest, mortgage, charge, right, claim or demand in respect of the property.

"enforcement agency" means:

(a): an agency mentioned in paragraphs (a) to (d) of the definition of ^*authorised officer; or
(b): an agency specified in the regulations to be a law enforcement, revenue or regulatory agency for the purposes of this Act.

"equitable sharing program "has the meaning given by subsection 296(4).

"evidential material "means evidence relating to:

(a): property in respect of which action has been or could be taken under this Act; or
(b): ^*benefits derived from the commission of an ^*indictable offence; or
(c): ^*literary proceeds.

"examination" means an examination under Part 3-1.

"examination notice" means a notice given under section 183.

"examination order" means an order made under section 180 or 181 that is in force.

"exclusion order" means an order made under subsection 73(1).

"executing officer", in relation to a warrant, means:

(a): the ^*authorised officer named in the warrant by the magistrate as being responsible for executing the warrant; or
(b): if that authorised officer does not intend to be present at the execution of the warrant—another authorised officer whose name has been written in the warrant by the first authorised officer; or
(c): another authorised officer whose name has been written in the warrant by the officer last named in the warrant.

"executive officer", in relation to a ^*financial institution or a corporation, means any person, by whatever name called and whether or not he or she is a ^*director of the institution or corporation, who is concerned, or takes part, in the management of the institution or corporation.

"extension order" means an order made under section 93.

"financial institution" means:

(a): a body corporate that is an ADI for the purposes of the Banking Act 1959 ; or
(b): the Reserve Bank of Australia; or
(c): a society registered or incorporated as a co-operative housing society or similar society under a law of a State or Territory; or
(d): a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution; or
(e): a body corporate that is a financial corporation within the meaning of paragraph 51(xx) of the Constitution; or
(f): a body corporate that, if it had been incorporated in ^*Australia, would be a financial corporation within the meaning of paragraph 51(xx) of the Constitution; or
(g): a trading corporation (within the meaning of paragraph 51(xx) of the Constitution) that carries on a business of operating a casino; or
(h): a trading corporation (within the meaning of paragraph 51(xx) of the Constitution) that is a ^*totalisator agency board.

"fixed term deposit" means an interest bearing deposit lodged for a fixed period.

"foreign forfeiture order" has the same meaning as in the ^*Mutual Assistance Act.

"foreign indictable offence "means an offence against a law of a foreign country constituted by conduct that would have constituted an offence against a law of the Commonwealth, a State or a Territory punishable by at least 12 months imprisonment if it had occurred in ^*Australia.

"foreign pecuniary penalty order "has the same meaning as in the ^*Mutual Assistance Act.

"foreign restraining order" has the same meaning as in the ^*Mutual Assistance Act.

"foreign serious offence" has the same meaning as in the ^*Mutual Assistance Act.

"forfeiture order" means an order made under Division 1 of Part 2-2 that is in force.

"frisk search" means:

(a): a search of a person conducted by quickly running the hands over the person's outer garments; and
(b): an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.

"indictable offence" means an offence against a law of the Commonwealth, or a ^*non-governing Territory, that may be dealt with as an indictable offence (even if it may also be dealt with as a summary offence in some circumstances).

"indictable offence of Commonwealth concern "means an offence against a law of a State or a ^*self-governing Territory:

(a): that may be dealt on indictment (even if it may also be dealt with as a summary offence in some circumstances); and
(b): the ^*proceeds of which were (or were attempted to have been) dealt with in contravention of a law of the Commonwealth on:

(i): importation of goods into, or exportation of goods from, ^*Australia; or
(ii): a communication using a postal, telegraphic or telephonic service within the meaning of paragraph 51(xx) of the Constitution; or
(iii): a transaction in the course of banking (other than State banking that does not extend beyond the limits of the State concerned).

"instrument "has the meaning given by sections 329 and 330.

"interest", in relation to property or a thing, means:

(a): a legal or equitable estate or interest in the property or thing; or
(b): a right, power or privilege in connection with the property or thing;

whether present or future and whether vested or contingent.

: Note: For references to an interest in property of a person who has died, see subsection 325(2).

"interstate forfeiture order "means an order that is made under a ^*corresponding law and is of a kind declared by the regulations to be within this definition.

"interstate indictable offence" means an offence against a law of a State or a ^*self-governing Territory, being an offence in relation to which an ^*interstate forfeiture order or an ^*interstate pecuniary penalty order may be made under a ^*corresponding law of that State or Territory.

"interstate pecuniary penalty order" means an order that is made under a ^*corresponding law and is of a kind declared by the regulations to be within this definition.

"interstate restraining order" means an order that is made under a ^*corresponding law and is of a kind declared by the regulations to be within this definition.

"lawyer" means a duly qualified legal practitioner.

"legal aid commission "means an authority established by or under a law of a State or a ^*self-governing Territory for the purpose of providing legal assistance.

"legal professional privilege" includes privilege under Division 1 of Part 3.10 of the Evidence Act 1995 .

"literary proceeds" has the meaning given by section 153.

"literary proceeds amount" has the meaning given by subsection 158(1).

"literary proceeds order" means an order made under section 152 that is in force.

"monitoring order" means an order made under section 219 that is in force.

"Mutual Assistance Act" means the Mutual Assistance in Criminal Matters Act 1987 .

"narcotic substance "means:

(a): a narcotic substance within the meaning of the Customs Act 1901 ; or
(b): a substance specified in the regulations for the purposes of this definition.

"non-governing Territory" means a Territory that is not a ^*self-governing Territory.

"officer", in relation to a ^*financial institution or a corporation, means a ^*director, secretary, ^*executive officer or employee.

"Official Trustee" means the Official Trustee in Bankruptcy.

"ordinary search" means a search of a person or of articles in the possession of a person that may include:

(a): requiring the person to remove his or her overcoat, coat or jacket and any gloves, shoes and hat; and
(b): an examination of those items.

"pecuniary penalty order" means an order made under section 116 that is in force.

"penalty amount" has the meaning given by subsection 121(1).

"person assisting", in relation to a ^*search warrant, means:

(a): a person who is an ^*authorised officer and who is assisting in executing the warrant; or
(b): a person who is not an authorised officer and who has been authorised by the relevant ^*executing officer to assist in executing the warrant.

"person's property": a person's property includes property in respect of which the person has the beneficial interest.

"petition" means a petition under the Bankruptcy Act 1966 .

"police officer" means:

(a): an ^*AFP member; or
(b): a member of the police force of a State or Territory.

"premises" includes:

(a): any land; and
(b): any structure, building, aircraft, vehicle, vessel or place (whether built on or not); and
(c): any part of such a structure, building, aircraft, vehicle, vessel or place.

"proceeds "has the meaning given by sections 329 and 330.

"proceeds jurisdiction" has the meaning given by section 335.

"proceeds of confiscated assets "has the meaning given by subsection 296(3).

"production order" means an order made under subsection 202(1) that is in force.

"property" means real or personal property of every description, whether situated in ^*Australia or elsewhere and whether tangible or intangible, and includes an ^*interest in any such real or personal property.

"property-tracking document" has the meaning given in subsection 202(5).

"quashed" has the meaning given by section 332.

"registrable property" means property title to which is passed by registration on a register kept pursuant to a provision of any law of the Commonwealth or of a State or Territory.

"registration authority "means an authority responsible for administering a law of the Commonwealth, a State or a Territory providing for registration of title to, or charges over, property of a particular kind.

"related offence": an offence is related to another offence if the physical elements of the 2 offences are substantially the same acts or omissions.

"responsible custodian" has the meaning given by subsection 254(2).

"restraining order "means an order under section 17, 18, 19 or 20 that is in force.

"search warrant "means a warrant issued under section 225 that is in force.

"self-governing Territory" means:

(a): the Australian Capital Territory; or
(b): the Northern Territory; or
(c): Norfolk Island.

"senior Departmental officer" means an SES employee or acting SES employee in the Attorney-General's Department.

"serious offence "means:

(a): an ^*indictable offence punishable by imprisonment for 3 or more years, involving:

(i): unlawful conduct relating to a ^*narcotic substance; or
(ii): unlawful conduct constituted by or relating to a breach of section 81 of the Proceeds of Crime Act 1987 or Part 10.2 of the Criminal Code (money-laundering); or
(iii): unlawful conduct by a person that causes, or is intended to cause, a ^*benefit to the value of at least $10,000 for that person or another person; or
(iv): unlawful conduct by a person that causes, or is intended to cause, a loss to the Commonwealth or another person of at least $10,000; or

(b): an offence against any of the following provisions of the Migration Act 1958 :

(i): section 232A (organising bringing groups of non-citizens into Australia);
(ii): subsection 233(1) (bringing etc. non-citizens into Australia in contravention of Act);
(iii): section 233A (other offences relating to groups of non-citizens); or

(c): an offence against any of the following provisions of the Financial Transaction Reports Act 1988 involving a transaction of at least $50,000 in value:

(i): section 15 (reports about transfers of currency into or out of Australia); or
(ii): section 29 (false or misleading information); or

(d): an offence against section 24 (opening accounts etc. in false names) of the Financial Transaction Reports Act 1988 if transactions on the relevant account total at least $50,000 in value during any 6 month period; or
(e): an offence against section 31 (conducting transactions to avoid reporting requirements) of the Financial Transaction Reports Act 1988 if transactions in breach of that section by the person committing the offence total at least $50,000 in value during any 6 month period; or
(f): a ^*terrorism offence; or
(g): an offence against section 11.1, 11.2, 11.4 or 11.5 of the Criminal Code (extensions of criminal responsibility) in relation to an offence referred to in this definition; or
(h): an indictable offence specified in the regulations.

"State indictable offence "means an offence against a law of a State or a ^*self-governing Territory that may be dealt with on indictment (even if it may also be dealt with as a summary offence in some circumstances).

"strip search" means a search of a person or of articles in the possession of a person that may include:

(a): requiring the person to remove all of his or her garments; and
(b): an examination of the person's body (but not of the person's body cavities) and of those garments.

"sufficient consideration": an acquisition or disposal of property is for sufficient consideration if it is for a consideration that is sufficient and that reflects the value of the property, having regard solely to commercial considerations.

"suspect", in relation to a ^*restraining order or a ^*confiscation order, means the person who:

(a): has been convicted of; or
(b): has been ^*charged with, or is proposed to be charged with; or
(c): if the order is a restraining order—is suspected of having committed; or
(d): if the order is a confiscation order—committed;

the offence or offences to which the order relates.

"suspended funds "has the meaning given by subsection 297(2).

"tainted property" means:

(a): ^*proceeds of an ^*indictable offence; or
(b): an ^*instrument of an indictable offence.

"terrorism offence" means an offence against Part 5-3 of the Criminal Code .

"totalisator agency board" means a board or authority established by or under a law of a State or Territory for purposes that include the purpose of operating a betting service.

"unlawful activity" means an act or omission that constitutes:

(a): an offence against a law of the Commonwealth; or
(b): an offence against a law of a State or Territory that may be dealt with on indictment (even if it may also be dealt with as a summary offence in some circumstances); or
(c): an offence against a law of a foreign country.

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