Law and Justice Legislation Amendment Act 1988 (Cth)
Law and Justice Legislation Amendment Act 1988
PART I—PRELIMINARY
Section
1. Short title
2. Commencement
PART II—AMENDMENTS OF THE ACTS INTERPRETATION ACT 1901
3. Principal Act
4. How Chairpersons and Deputy Chairpersons may be referred to
5. Acting appointments
PART III—AMENDMENTS OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
6. Principal Act
7. Interpretation
8. Repeal of section 8 and substitution of new section:
8. Term of appointment
9. Application of Judges’ Pensions Act
10. Disclosure not required: Attorney-General’s public interest certificate
11. Answering questions where Attorney-General intervenes on public interest grounds
12. Insertion of new sections:
36b. Disclosure not required: State Attorney-General’s public interest certificate
36c. Answering questions where State Attorney-General intervenes on public interest grounds
13. Insertion of new section:
36d. Public interest questions under sections 36, 36a, 36b and 36c
14. Appeals to Federal Court of Australia from decisions of the Tribunal
15. Confidential information not to be disclosed
16. Consequential amendments of Principal Act
TABLE OF PROVISIONS—continued
Section
PART IV—AMENDMENTS OF THE AUSTRALIAN FEDERAL POLICE ACT 1979
17. Principal Act
18. Members’ powers and duties
19. Repeal of section 24 and substitution of new section:
24. Determination of numbers by Commissioner
20. Insertion of new sections:
36a. Application of merit principle, prohibition of patronage etc.
36b. Review by Merit Protection and Review Agency of non-appellable promotion decisions
PART V—AMENDMENT OF THE COMMONWEALTH PLACES (APPLICATION OF LAWS) ACT 1970
21. Principal Act
22. Certain provisions not to apply to applied provisions
PART VI—AMENDMENTS OF THE CRIMES AT SEA ACT 1979
23. Principal Act
24. Certain Commonwealth laws excluded
PART VII—AMENDMENTS OF THE CRIMES LEGISLATION AMENDMENT ACT (No. 2) 1988
25. Principal Act
26. Commencement
27. Reports to be made to Minister concerning use of listening devices
PART VIII—AMENDMENT OF THE CUSTOMS ACT 1901
28. Principal Act
29. Court may make further orders
PART IX—AMENDMENT OF THE DIRECTOR OF PUBLIC PROSECUTIONS ACT 1983
30. Principal Act
31. Powers of Director
PART X—AMENDMENT OF THE EXTRADITION (REPEAL AND CONSEQUENTIAL PROVISIONS) ACT 1988
32. Principal Act
33. Schedule
PART XI—AMENDMENT OF THE FAMILY COURT OF AUSTRALIA (ADDITIONAL JURISDICTION AND EXERCISE OF POWERS) ACT 1988
34. Principal Act
35. Commencement
PART XII—AMENDMENTS OF THE FAMILY LAW ACT 1975
36. Principal Act
37. Original jurisdiction of Family Court
38. Insertion of new section:
65a. Order that child be made available for examination
39. Declaration of interests in property
TABLE OF PROVISIONS—continued
Section
PART XIII—AMENDMENT OF THE JUDICIARY ACT 1903
40. Principal Act
41. Common law to govern
PART XIV—AMENDMENT OF THE LAW OFFICERS ACT 1964
42. Principal Act
43. Pension of Solicitor-General
PART XV—AMENDMENTS OF THE MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT 1987
44. Principal Act
45. Requests by foreign countries
46. Immunities
47. Requests for enforcement of orders
PART XVI—AMENDMENTS OF THE PROCEEDS OF CRIME ACT 1987
48. Principal Act
49. Insertion of new section:
9a. Effective control of property
50. Effect of forfeiture order on third parties
51. Insertion of heading
52. Registered foreign forfeiture orders
53. Insertion of section:
23a. Effect on third parties of registration of foreign forfeiture order
54. Assessment of pecuniary penalty
55. Court may lift corporate veil etc.
56. Recovery of property to which section 30 applies
57. Buying out other interests in forfeited property
58. Restraining orders
59. Grounds for making restraining order
60. Court may make further orders
61. Insertion of section:
48a. Order for taxation of legal expenses to be met out of restrained property
62. Official Trustee to discharge pecuniary penalty
63. Registration of restraining orders
64. Duties of Official Trustee
65. Repeal of section 55 and substitution of new section:
55. Costs etc. payable to Official Trustee
66. When restraining order ceases to be in force
67. Production orders
68. Search warrant for location etc. of property
69. Conduct by directors, servants or agents
PART XVII—AMENDMENT OF THE THERAPEUTIC GOODS ACT 1966
70. Principal Act
71. Offences: general
SCHEDULE
CONSEQUENTIAL AMENDMENTS OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
[
BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:
“(2) Where an Act establishes an office of Deputy Chairperson of a body, the Deputy Chairperson may be referred to as Deputy Chairman or Deputy Chairwoman, as the case requires.”.
“ ‘State’, except in section 16 or 64, includes the Northern Territory;”.
“8. (1) Subject to this Part (other than subsection (3)), a presidential member who is a Judge holds office until he or she attains the age of 70 years or ceases before attaining that age to be a Judge.
“(2) Subject to this Part (other than subsection (3)), where the instrument appointing a person as a full-time member to an office of Deputy President or of senior member provides that this subsection applies to the appointment, the person holds office until he or she attains the age of 70 years or 65 years, as the case may be.
“(3) Subject to this Part, a member holds office for such period of at most 7 years as is specified in the instrument of appointment, but is eligible for re-appointment.
“(4) A person appointed as a full-time member to an office of Deputy President, or an office of senior member or of member, ceases to hold office on attaining the age of 70 years or 65 years, as the case may be.
“(5) A Judge who has attained the age of 70 years shall not be appointed as a member.
“(6) A person shall not be appointed as a full-time member to an office of Deputy President, or an office of senior member or of member, if the person has attained the age of 70 years or 65 years, as the case may be.
“(7) Subject to this Part, a member holds office on such terms and conditions as are prescribed.”.
“(6) A reference in this section to a presidential member does not include a reference to:
(a) a part-time member; or
(b) a full-time member appointed by an instrument that does not provide as mentioned in subsection 8 (2).”.
“36b. (1) If the Attorney-General of a State certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest:
(a) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the State; or
(b) for any other specified reason that could form the basis for a claim by the Crown in right of the State in a judicial proceeding that the information or the matter contained in the document should not be disclosed;
the following provisions of this section have effect.
“(2) A person who is required by or under this Act to disclose the information, or to produce to, or lodge with, the Tribunal the document in which the matter is contained, for the purposes of a proceeding is not excused from the requirement, but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information, or the matter contained in the document, is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged.
“(3) Where the Attorney-General of a State has certified in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1) (a), the Tribunal shall consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding and, if it decides that the information or the matter should be so disclosed, the Tribunal shall make
the information available or permit the part of the document containing the matter to be inspected accordingly.
“(4) Where, in relation to a proceeding to which the Attorney-General of a State would not, but for this subsection, be a party, that Attorney-General certifies in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1) (a), that Attorney-General shall, for the purposes of this Act, be taken to be a party to the proceeding.
“(5) In considering whether information, or matter contained in a document, should be disclosed as mentioned in subsection (3), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the Tribunal’s functions that the parties to a proceeding should be made aware of all relevant matters, but shall pay due regard to any reason that the Attorney-General of the State has specified in the certificate as a reason why the disclosure of the information, or of the matter contained in the document, as the case may be, would be contrary to the public interest.
“36c. (1) Where, at the hearing of a proceeding before the Tribunal, a person is asked a question in the course of giving evidence, the Attorney-General of a State may inform the Tribunal that, in his or her opinion, the answering of the question would be contrary to the public interest for a specified reason or reasons, being a reason or reasons mentioned in subsection 36b (1).
“(2) Where the Attorney-General of a State informs the Tribunal that, in his or her opinion, the answering by a person of a question would be contrary to the public interest, that person is excused from answering the question unless:
(a) if the reason specified is, or the reasons specified include, a reason referred to in paragraph 36b (1) (a)—the Court, on an appeal under section 44 or a reference under section 45, decides that the answering of the question would not be contrary to the public interest; or
(b) otherwise—the Tribunal decides that the answering of the question would not be contrary to the public interest.
“(3) Where the Attorney-General of a State informs the Tribunal that, in his or her opinion, the answering by a person of a question at the hearing of a proceeding would be contrary to the public interest and, but for this subsection, that Attorney-General would not be a party to the proceeding, that Attorney-General shall, for the purposes of this Act, be taken to be a party to the proceeding.”.
“36d. (1) As soon as practicable after making a decision:
(a) under subsection 36 (3) or 36b (3) in relation to information, or matter contained in a document, in relation to a proceeding; or
(b) under paragraph 36a (2) (b) or 36c (2) (b) in relation to the answering of a question at the hearing of a proceeding;
the Tribunal shall give to each party to the proceeding a document setting out the terms of the Tribunal’s decision.
“(2) For the purposes of this Act:
(a) the question whether information, or matter contained in a document, should be disclosed to the parties to a proceeding; or
(b) the question whether the answering of a question would be contrary to the public interest;
is a question of law.
“(3) The Tribunal’s power to make a decision under subsection 36 (3) or 36b (3) or paragraph 36a (2) (b) or 36c (2) (b) may be exercised only by the Tribunal constituted by a presidential member who is a Judge of the Federal Court of Australia.
“(4) A decision by the Tribunal:
(a) under subsection 36 (3) or 36b (3) as to whether or not information, or matter contained in a document, should be disclosed to all or any of the parties to a proceeding; or
(b) under paragraph 36a (2) (b) or 36c (2) (b) that the answering of a question at the hearing of a proceeding would, or would not, be contrary to the public interest;
is a decision by the Tribunal in that proceeding for the purposes of section 44.
“(5) Nothing in section 36 or 36b prevents the disclosure of information, or of matter contained in a document, to a member of the staff of the Tribunal in the course of the performance of his or her duties as a member of the staff of the Tribunal.
“(6) Sections 36 and 36b exclude the operation of any rules of law that relate to the public interest and would otherwise apply in relation to the disclosure of information, or of matter contained in documents, in proceedings before the Tribunal.
“(7) The Attorney-General, or the Attorney-General of a State:
(a) may appear before the Tribunal personally, or may be represented before the Tribunal by a barrister, solicitor or other person, in order to inform the Tribunal of his or her opinion in accordance with section 36a or 36c; or
(b) may so inform the Tribunal of his or her opinion by causing to be sent to the Tribunal a written certificate that is signed by him or her and sets out that opinion.”.
“and that jurisdiction:
(a) may be exercised by that Court constituted as a Full Court;
(b) shall be so exercised if:
(i) the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a presidential member; and
(ii) after consulting the President, the Chief Judge of that Court considers that it is appropriate for the appeal from the decision to be heard and determined by that Court constituted as a Full Court; and
(c) shall be so exercised if the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Judge.”.
(a) by omitting paragraph (1) (c) and substituting the following paragraph:“(c) a certificate under section 36 or 36b is in force certifying that the disclosure of information concerning the matter to which the evidence would relate would be contrary to the public interest for a reason referred to in subsection 36 (1) or 36b (1) and, where the certificate does not specify a reason referred to in paragraph 36 (1) (a) or (b), or 36b (1) (a), as the case may be, the Tribunal has not made information concerning that matter available to the parties to a proceeding before the Tribunal and, in the case of information contained in a document, has not permitted the parties to such a proceeding to inspect the document.”;
(b) by omitting paragraph (2) (c) and substituting the following paragraph:“(c) a certificate under section 36 or 36b is in force certifying that the disclosure of matter contained in the document would be contrary to the public interest for a reason referred to in subsection 36 (1) or 36b (1) and, where the certificate does not specify a reason referred to in paragraph 36 (1) (a) or (b), or 36b (1) (a), as the case may be, the Tribunal has not permitted the parties to a proceeding before the Tribunal to inspect the document.”.
“(3) In paragraph (1) (a):
‘constable’ includes a member of the Police Force of a State or Territory.”.
“24. The Commissioner may determine the number of persons who may be appointed to each rank of the Australian Federal Police.”.
“36a. (1) Powers under this Act in respect of appointment shall be exercised in accordance with procedures that ensure that, in each case where an appointment to the Australian Federal Police is to be made:
(a) all persons who are eligible for appointment to the Australian Federal Police have, so far as practicable, a reasonable opportunity to apply for the appointment; and
(b) the appointment is made on the basis of an assessment of the relative suitability of the applicants for the appointment, having regard to:
(i) the nature of the duties to be performed by the person appointed; and
(ii) the abilities, qualifications, experience, personal qualities and potential for development of each applicant that are relevant to the performance of those duties.
“(2) Without limiting the generality of subsection (1), powers under this Act shall be exercised without patronage or favouritism.
“(3) Without limiting the generality of subsection (1), powers under this Act in respect of appointments, transfers and promotions shall, subject to subsection (4), be exercised without:
(a) discrimination on the ground of political affiliation, race, colour, ethnic origin, social origin, religion, sex, sexual preference, marital status or pregnancy;
(b) discrimination that is unlawful under the
Racial Discrimination Act 1975 or theSex Discrimination Act 1984 ; or(c) any other unjustified discrimination.
“(4) The reference in subsection (3) to discrimination in relation to a power in respect of appointment, transfer or promotion does not include a reference to:
(a) discrimination that is essential for the effective performance of the duties to which the appointment, transfer or promotion relates, is not unlawful under the
Racial Discrimination Act 1975 or theSex Discrimination Act 1984 and is declared by the regulations not to be discrimination for the purposes of subsection (3); or(b) discrimination in relation to appointment that is not unlawful under the
Racial Discrimination Act 1975 or theSex Discrimination Act 1984 and is in accordance with a program to encourage the appointment of women or prescribed persons to the Australian Federal Police, being a program that is declared by the regulations to be an approved program for the purposes of this paragraph.
“(5) Where the exercise of a power in respect of appointment is, by virtue of paragraph (4) (b), not discrimination for the purposes of subsection (3), the power shall be taken to have been exercised in accordance with procedures of the kind referred to in subsection (1).
“(6) A reference in this section to the exercise of a power under this Act includes a reference to the making of a report or recommendation in relation to the exercise of such a power.
“36b. (1) A member who applied unsuccessfully for a non-appellable promotion may, within the prescribed period, apply to the Agency for review of the promotion on the ground that it would be unreasonable for the promotion to stand because of:
(a) a breach of section 36a in connection with the making of the promotion; or
(b) a serious defect in the selection process.
“(2) An application for review of a promotion shall be in writing and shall include particulars of the alleged breach of section 36a or the alleged defect in the selection process.
“(3) Where an application is made to the Agency for review of a promotion, the Agency shall:
(a) make such inquiries as it considers necessary to determine whether a recommendation should be made under subsection (4) in relation to the promotion; and
(b) make a decision in writing either:
(i) affirming the promotion; or
(ii) making a recommendation under subsection (4) in relation to the promotion.
“(4) Where an application is made to the Agency for review of a promotion, the Agency shall, if it is satisfied that it would be unreasonable for the promotion to stand because of:
(a) a breach of section 36a in connection with the making of the promotion; or
(b) a serious defect in the selection process;
recommend to the Commissioner that the promotion be cancelled.
“(5) The Agency shall cause a copy of its decision to be given to:
(a) the member who made the application;
(b) the member promoted; and
(c) the Commissioner.
“(6) Where the Agency recommends to the Commissioner that a promotion be cancelled, the Commissioner:
(a) shall, having regard to the recommendation, reconsider the promotion; and
(b) may:
(i) if the promotion was by the Governor-General—recommend to the Governor-General that the promotion be cancelled; or
(ii) otherwise—cancel the promotion.
“(7) Where the Commissioner recommends to the Governor-General under subsection (6) that a promotion be cancelled, the Governor-General may cancel the promotion.
“(8) Where the Commissioner or the Governor-General cancels a promotion under subsection (6) or (7):
(a) the member promoted shall, for all purposes, be treated as having held the position concerned during the period beginning when the promotion took effect and ending when the promotion is cancelled; and
(b) upon the cancellation, the Commissioner shall transfer the member to a position within a rank that is the same as, or equivalent to, the
rank within which the member held a position immediately before the promotion took effect, and, if necessary, the Commissioner shall create a position, make a new determination under section 24, or do both of those things, for the purpose.
“(9) The Agency shall refuse to consider or further consider an application for review of a promotion if the Agency is satisfied that the application is frivolous or vexatious or was not made in good faith.
“(10) Where 2 or more applications are made to the Agency for review of the same promotion, the Agency may consider those applications concurrently.
“(11) In this section:
‘Agency’ means the Merit Protection and Review Agency established by the
Merit Protection (Australian Government Employees) Act 1984 ;‘non-appellable promotion’ means a promotion under section 25 or 26 to a position within a prescribed rank of the Australian Federal Police, being a promotion that takes place after the commencement of this section.”.
“(1) The
Acts Interpretation Act 1901 does not apply in relation to the applied provisions.“(2) Sections 4a, 4b, 4d to 4k (inclusive), 5, 6, 7, 7a and 86 of the
Crimes Act 1914 do not apply in relation to, or in relation to matters arising under, the applied provisions.”.
(a) by omitting from subsection (1) “(other than section 30) does not apply to or” and substituting “does not apply”;
(b) by omitting from subsection (3) all the words before “matters” and substituting “Sections 4a, 4b, 4d to 4k (inclusive), 5, 6, 7, 7a and 86 of theCrimes Act 1914 do not apply in relation to”.
“(4) Section 24 commences on 15 June 1988.”.
(a) by omitting from paragraph (a) “issued,” and substituting “issued”;
(b) by omitting from paragraph (a) “agency,” and substituting “agency”.
“(3) Where:
(a) a person is examined before the Court, or the Registrar of the Court, under an order made under subsection (1); or
(b) an order made under subsection (1) directs a person to furnish a statement to the Official Trustee;
the person is not excused from:
(c) answering a question when required to do so by the Court, or by the Registrar of the Court; or
(d) furnishing the statement, or setting out particulars in the statement; as the case may be, on the ground that the answer to the question, or the statement or particulars, might tend to incriminate the person or make the person liable to a forfeiture or penalty.
“(3a) Where a person:
(a) is examined before the Court, or the Registrar of the Court; or
(b) furnishes a statement to the Official Trustee;
under an order made under subsection (1), then:
(c) a statement or disclosure made by the person in answer to a question put in the course of the examination; or
(d) the statement so furnished;
as the case may be, and any information, document or thing obtained as a direct or indirect consequence of the statement or disclosure referred to in paragraph (c), or of the statement referred to in paragraph (d), is not admissible against the person in any civil or criminal proceeding except:
(e) a proceeding for giving false testimony in the course of the examination, or in respect of the falsity of the statement, as the case may be; or
(f) a proceeding for the recovery of a pecuniary penalty, for the purpose only of facilitating the assessment of the amount of the pecuniary penalty.”.
“(8a) In subsections (7) and (8):
‘right of appeal’ includes a right:
(a) to apply for a review or rehearing; or
(b) to institute a proceeding in the nature of an appeal or of an application for a review or rehearing.”.
(a) it arises after the commencement of this section; or
(b) it arose before that commencement but, as at that commencement, no proceedings had been instituted in respect of it.
“65a. (1) Where, in proceedings under this Act, a child is separately represented by a person under an order made under section 65, the court may, on application by the person, order a custodian of the child to make the child available, as specified in the order, for a psychiatric or psychological examination to be made for the purpose of preparing a report about the child for use by the person in connection with the proceedings.
“(2) In this section:
‘custodian’, in relation to a child, means a person who has, or any one of the persons who have, the daily care and control of the child.”.
“(4) If the term of appointment of a person who has served in the office of Solicitor-General for at least 7 years has expired and the person:
(a) is not re-appointed; and
(b) is not entitled to payment of a pension by virtue of subsection (1);
subsections (5) to (9), inclusive, apply to or in respect of the person.
“(5) For the purpose of the application of subsections (6), (7) and (8) in relation to the person, a reference to the relevant discounted rate of pension is a reference to whichever is the lesser of:
(a) 0.5% of the appropriate current salary for each completed month of the person’s actual service as Solicitor-General; or
(b) 60% of the appropriate current salary;
reduced by 2.5% for each whole year between:
(c) in the case of the application of subsection (6)—the date on which the person actually ceased to hold office as Solicitor-General and the date that the Attorney-General certified under that subsection was the date on which the person became permanently disabled or permanently infirm;
(d) in the case of the application of subsection (7)—the date on which the person actually ceased to hold office as Solicitor-General and the date on which the person died; or
(e) in the case of the application of subsection (8)—the date on which the person actually ceased to hold office as Solicitor-General and the date on which the person attained the age of 60 years.
“(6) If the
Attorney-General certifies that the person became, at a particular date before
attaining the age of 60 years, permanently disabled or permanently infirm, the
relevant provisions of the
“(7) If the person dies
before attaining the age of 60 years and was not entitled to a pension under
subsection (6) immediately before his or her death, the relevant provisions of
the
“(8) If the person
attains the age of 60 years and was not entitled to a pension under subsection
(6) immediately before attaining that age, the relevant provisions of the
“(9) The person may, at any time before attaining the age of 60 years, apply to the Attorney-General for a certificate under subsection (6) and, upon receipt of the application, the Attorney-General shall:
(a) if satisfied that the person became, at a particular time before attaining the age of 60 years, permanently disabled or permanently infirm—so certify under subsection (6); or
(b) otherwise—refuse to certify under that subsection.
“(10) In the application
of the relevant provisions of the
“(11) An application may be made to the Administrative Appeals Tribunal for review of a refusal of the Attorney-General, on application under subsection (9), to give a certificate under subsection (6).
“(12) In this section:
‘appropriate current salary’, in relation to a person at a particular time, means salary at the rate that was or is payable at that time to the Solicitor-General;
‘Judge’ means a Judge within the meaning of the
Judges’ Pensions Act 1968 ;‘relevant provisions of the
Judges’ Pensions Act 1968’ means the provisions of that Act referred to in subsection (1).
“(13) Pensions under or by virtue of this section are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.”.
“(10) Subsection (8) does not apply in a case where its application would be inconsistent with a provision of a mutual assistance treaty between Australia and the foreign country concerned.”.
“(2a) Paragraph (1) (f) or (g) does not apply in a case where its application would be inconsistent with a provision of a mutual assistance treaty between Australia and the foreign country concerned.”.
(a) by adding at the end of subsection (4) “and shall comply with subsection 23a (2) of theProceeds of Crime Act 1987 in relation to the order”;
(b) by omitting from subsection (8) “an order” and substituting “a foreign pecuniary penalty order or a foreign restraining order”;
(c) by omitting paragraph (11) (a).
“9a. (1) Property, or an interest in property, may be subject to the effective control of a person within the meaning of this Act whether or not the person has:
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege in connection with the property.
“(2) Without limiting the generality of any other provision of this Act, in determining:
(a) whether or not property, or an interest in property, is subject to the effective control of a person; or
(b) whether or not there are reasonable grounds to believe that property, or an interest in property, is subject to the effective control of a person;
regard may be had to:
(c) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property;
(d) a trust that has a relationship to the property; and
(e) family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (c) or trusts of the kind referred to in paragraph (d), and other persons.”.
(a) by omitting paragraph (6) (a) and substituting the following paragraph:“(a) the applicant was not, in any way, involved in the commission of an offence in respect of which forfeiture of the property is sought, or the forfeiture order against the property was made, as the case requires; and”;
(b) by omitting from paragraph (6) (b) “the offence” and substituting “such an offence”.
(a) by omitting from subsection (1) “this Division” and substituting “Division 2”;
(b) by inserting in subsection (2) “, subject to section 23a,” after may”.
“23a. (1) This section applies where, after the commencement of this section, a court in Australia registers under the Mutual Assistance Act a foreign forfeiture order against property.
“(2) On registering the order, the court shall direct the DPP to give or publish notice of the registration:
(a) to specified persons (other than a person convicted of a foreign serious offence in respect of which the order was made) the court has reason to believe may have an interest in the property; and
(b) in the manner and within the time the court considers appropriate.
“(3) A person (other than a person convicted of a foreign serious offence in respect of which the foreign forfeiture order was made) who claims an interest in the property may apply to the court for an order under subsection (7).
“(4) A person who was given notice of, or appeared at, the hearing held in connection with the making of the foreign forfeiture order is not entitled, except with the leave of the court, to apply under subsection (3).
“(5) The court may grant leave under subsection (4) if satisfied that there are special grounds for doing so.
“(6) Without limiting the generality of subsection (5), the court may grant a person leave under subsection (4) if the court is satisfied that:
(a) the person, for a good reason, did not attend the hearing referred to in subsection (4) although the person had notice of the hearing; or
(b) particular evidence that the person proposes to adduce in connection with the proposed application under subsection (3) was not available to the person at the time of the hearing referred to in subsection (4).
“(7) If, on an application for an order under this subsection, the court is satisfied that:
(a) the applicant was not, in any way, involved in the commission of a foreign serious offence in respect of which the foreign forfeiture order was made; and
(b) if the applicant acquired his, her or its interest in the property at the time of or after the commission of such an offence—the applicant acquired the interest:
(i) for sufficient consideration; and
(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time of the acquisition, tainted property in relation to a foreign serious offence;
the court shall make an order:
(c) declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest in the property; and
(d) either:
(i) directing the Commonwealth to transfer the interest to the applicant; or
(ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).
“(8) Subject to subsection (9), an application under subsection (3) shall be made before the end of 6 weeks beginning on the day when the foreign forfeiture order is registered in the court.
“(9) The court may grant a person leave to apply under subsection (3) outside the period referred to in subsection (8) if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the person’s part.
“(10) A person who applies under subsection (3) shall give to the DPP and the Minister notice, as prescribed, of the application.
“(11) The DPP shall be a party to proceedings on an application under subsection (3) and the Minister may intervene in such proceedings.”.
“(b) Division 3 of Part XIII of the Customs Act.”.
(a) by omitting from subsection (1) all the words after “effective control” and substituting “of the person.”;
(b) by omitting subsections (2) and (3) and substituting the following subsection:“(3) On application by the DPP, a court may, if in its opinion particular property is subject to the effective control of a person against whom the court has made a pecuniary penalty order, make an order declaring that the whole, or a specified part, of that property is available to satisfy the pecuniary penalty order.”.
(a) by inserting after paragraph (1) (d) the following paragraph:“(da) specified property of the defendant and all other property of the defendant (including property acquired after the making of the order);”;
(b) by omitting from paragraph (2) (a) “or” (last occurring) and substituting “and”;
(c) by inserting after subsection (6) the following subsections:“(6a) Where the Official Trustee is given a direction under paragraph (2) (b) in relation to shares in a company, it is entitled:
(a) to exercise the rights attaching to the shares as if it were the registered holder of the shares; and
(b) to do so to the exclusion of the registered holder.
“(6b) Neither of paragraph (6) (c) and subsection (6a) limits the generality of the other.”.
(a) by omitting from subsection (1) “(7)” and substituting “(7a)”;
(b) by omitting paragraph (6) (b) and substituting the following paragraph:“(b) the application seeks a restraining order against:
(i) all the property of the defendant;
(ii) all the property of the defendant other than specified property; or
(iii) specified property of the defendant and all other property of the defendant;”;
(c) by omitting subsection (8).
(a) by omitting from paragraph (3) (f) “subparagraph”;
(b) by inserting in subparagraph (4) (e) (i) “and” after “activity;”;
(c) by inserting after subsection (6) the following subsections:“(6a) A person whom an order under subsection (1) directs to furnish a statement to the Official Trustee is not excused from furnishing the statement, or from setting out particulars in the statement, on the ground that the statement or particulars, as the
case may be, might tend to incriminate the person or make the person liable to a forfeiture or penalty.
“(6b) Where a person furnishes a statement to the Official Trustee under an order made under subsection (1), neither the statement, nor any information, document or thing obtained as a direct or indirect consequence of the statement, is admissible against the person in any criminal proceedings except a proceeding in respect of the falsity of the statement.”;
(d) by inserting in subsection (7) “or (6b)” after “(6)”.
“48a. (1) Where:
(a) a court makes a restraining order directing the Official Trustee to take custody and control of property; and
(b) the order makes provision for meeting, out of the property or part of it, a person’s reasonable expenses in defending a criminal charge;
the Official Trustee may apply to the court for an order under subsection (3).
“(2) The Official Trustee shall give written notice of an application under subsection (1) to the person.
“(3) On an application under subsection (1), the court may order that the expenses be taxed as provided in the order or may dismiss the application.
“(4) Where the Official Trustee makes an application under subsection (1), it need not, except as ordered by the court after the application is made, take any steps for the purpose of meeting the expenses as provided by the restraining order unless and until:
(a) an order under subsection (3) 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.”.
(a) by omitting subparagraph (6) (a) (i) and substituting the following subparagraph:“(i) apply the money in payment of the costs, charges, expenses and remuneration, of the kind referred to in subsection 55 (1), incurred or payable in connection with the restraining order and payable to the Official Trustee under the regulations; and”;
(b) by omitting subparagraph (6) (b) (ii) and substituting the following subparagraph:“(ii) apply the proceeds of the sale or disposition in payment of the costs, charges, expenses and remuneration, of the kind referred to in subsection 55 (1), incurred or payable in connection with the restraining order or the sale or disposition and payable to the Official Trustee under the regulations; and”.
(a) by omitting from paragraph (3) (a) “and” (last occurring);
(b) by inserting after paragraph (3) (b) the following word and paragraph:“and (c) by virtue of section 58 of the Bankruptcy Act, the property vests in the Official Trustee or a registered trustee;”.
“55. (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 the 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.”.
(a) by omitting from paragraph (2) (h) “extension to” and substituting “extension of;
(b) by inserting in paragraph (2) (j) “subject to a preceding paragraph,” before “if”;
(c) by omitting from paragraph (3) (a) “or” (last occurring);
(d) by inserting after paragraph (3) (a) the following paragraph:“(aa) that the property or part of the property may still become forfeited under subsection 30 (1); or”;
(e) by inserting in sub-subparagraph (3) (b) (ii) (a) “or (7a) (a) (ii)” after “44 (7) (a) (ii)”;
(f) by omitting subsection (6) and substituting the following subsections:“(6) A reference in this section to the relevant period in relation to a restraining order is a reference to the period beginning on the day when the order was made and ending:
(a) if an order has, or orders have, been made under subsection (3) extending the restraining order’s period of operation—at such time, or on the occurrence of such event, as is specified in the order, or the last of the orders, so made;
(b) if paragraph (a) does not apply but an order has, or orders have, been made by virtue of paragraph 48 (1) (a), (b) or (e) in relation to the restraining order—at the end of 6 months after the day when the order, or the last of the orders, was so made; or
(c) in any other case—at the end of 6 months after the day when the restraining order was made.
“(7) In this section:
‘extend’ includes further extend.”.
(a) by omitting paragraphs (2) (a) and (b) and substituting the following paragraphs:“(a) if the offence is an ordinary indictable offence:
(i) the person who was convicted of the offence, or who is believed to have committed the offence, derived a benefit, directly or indirectly, from the commission of the offence; and
(ii) property specified in the information is subject to the effective control of the person; or
(b) if the offence is a serious offence—property specified in the information is subject to the effective control of the person;”;
(b) by omitting from subsection (3) “28 (2)” and substituting “9a (2)”.
(a) by omitting paragraphs (2) (a) and (b) and substituting the following paragraphs:“(a) if the offence is an ordinary indictable offence:
(i) the person who was convicted of the offence, or who is believed to have committed the offence, derived a benefit, directly or indirectly, from the commission of the offence; and
(ii) property specified in the information is subject to the effective control of the person; or
(b) if the offence is a serious offence—property specified in the information is subject to the effective control of the person;”;
(b) by omitting from subsection (3) “28 (2)” and substituting “9a (2)”.
SCHEDULE Section 16
CONSEQUENTIAL AMENDMENTS OF THE ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
Omit “to (8) (inclusive)”, substitute “, (3), (3a) and (4) and 36d (1) to (6), inclusive,”.
Omit “and 36,”, substitute “, 36 and 36b,”
Omit “, 36 and 36a,”, substitute “and 36d,”.
Omit “notwithstanding subsection 36 (2),”, substitute “despite subsections 36 (2) and 36b (2),”.
Omit “by the Attorney-General in accordance with subsection 28 (2) or 36 (1)”, substitute “in accordance with subsection 28 (2), 36 (1) or 36b (1)”.
Omit “or 36 (1) (a) or (b),”, substitute “, 36 (1) (a) or (b), or 36b (1) (a),”.
1. No. 2, 1901, as amended. For previous amendments, see No. 4, 1916; No. 8, 1918; No. 23, 1930; No. 24, 1932; No. 10, 1937; No. 7, 1941; No. 78, 1947; No. 79, 1948; No. 80, 1950; No. 69, 1957; No. 19, 1963; No. 52, 1964; No. 93, 1966; Nos. 79 and 216, 1973; Nos. 37 and 144, 1976; No. 35, 1978; No. 1, 1980; No. 61, 1981; No. 26, 1982 (as amended by No. 80, 1982); No. 80, 1982; No. 39, 1983; No. 27, 1984 (as amended by No. 165, 1984); No. 63, 1984 (as amended by No. 165, 1984); No. 72, 1984; No. 193, 1985; and Nos. 92, 120 and 141, 1987.
2. No. 91, 1975, as amended. For previous amendments, see Nos. 37, 60, 89, 91, 157, 162, 163 and 209, 1976; Nos. 30, 57, 58 and 111, 1977; Nos. 65 and 109, 1978; Nos. 19 and 143, 1979; No. 110, 1980; Nos. 19 and 61, 1981; Nos. 26 and 80, 1982; No. 91, 1983; Nos. 63 and 72, 1984; Nos. 65 and 193, 1985; No. 48, 1986; and Nos. 38 and 63, 1988.
3. No. 58, 1979, as amended. For previous amendments, see No. 155, 1979; No. 69, 1980; No. 22, 1981; No. 80, 1982; No. 39, 1983 (as amended by No. 117, 1984); No. 91, 1983 (as amended by No. 117, 1984 and No. 121, 1985); No. 117, 1984; No. 121, 1985; No. 35, 1986; and No. 38, 1988.
4. No. 121, 1970, as amended. For previous amendments, see No. 216, 1973; No. 37, 1976; No. 80, 1982; No. 114, 1983; No. 165, 1984; and No. 168, 1986.
5. No. 17, 1979, as amended. For previous amendments, see No. 80, 1982.
6. No. 66, 1988.
7. No. 6, 1901, as amended. For previous amendments, see No. 21, 1906; Nos. 9 and 36, 1910; No. 19, 1914; No. 10, 1916; No. 41, 1920; No. 19, 1922; No. 12, 1923; No. 22, 1925; No. 6, 1930; Nos. 7 and 45, 1934; No. 7, 1935; No. 85, 1936; No. 54, 1947; No. 45, 1949; Nos. 56 and 80, 1950; No. 56, 1951; No. 108, 1952; No. 47, 1953; No. 66, 1954; No. 37, 1957; No. 54, 1959; Nos. 42 and 111, 1960; No. 48, 1963; Nos. 29, 82 and 133, 1965; No. 28, 1966; No. 54, 1967; Nos. 14 and 104, 1968; Nos. 12 and 134, 1971; Nos. 162 and 216, 1973; Nos. 28 and 120, 1974; Nos. 56, 77 and 107, 1975; Nos. 41, 91 and 174, 1976; No. 154, 1977; Nos. 36 and 183, 1978; No. 19, 1979; No. 92, 1979 (as amended by Nos. 40 and 175, 1985); Nos. 116, 155, 177 and 180, 1979; Nos. 13, 15, 110 and 171, 1980; Nos. 45 and 61, 1981; No. 64, 1981 (as amended by 51, 1982); Nos. 67, 152 and 157, 1981; Nos. 48, 51 and 80, 1982; No. 81, 1982 (as amended by No. 39, 1983; No. 72, 1984; and No. 40, 1985); Nos. 108, 115 and 137, 1982; Nos. 19, 39 and 101, 1983; Nos. 2, 22, 63, 72 and 165, 1984; Nos. 39, 40 and 175, 1985; Nos. 10, 34 and 149, 1986; Nos. 51, 76, 81, 104 and 141, 1987; and Nos. 63, 66 and 76, 1988.
8. No. 113, 1983, as amended. For previous amendments, see Nos. 10 and 165, 1984; Nos. 64 and 166, 1985; No. 88, 1986; and Nos. 86 and 141, 1987.
9. No. 5, 1988.
10. No. 8, 1988.
11. No. 53, 1975, as amended. For previous amendments, see Nos. 63, 95 and 209, 1976; No. 102, 1977; No. 23, 1979; No. 2, 1982; Nos. 67 and 72, 1983; Nos. 63, 72 and 165, 1984; Nos. 65, 166 and 193, 1985; No. 76 and 168, 1986; No. 141, 1987; No. 181, 1987 (as amended by No. 8, 1988); and No. 8, 1988.
12. No. 6, 1903, as amended. For previous amendments, see No. 5, 1906; No. 8, 1907; No. 34, 1910; No. 31, 1912; No. 11, 1914; No. 4, 1915; No. 38, 1920; No. 39, 1926; No. 9, 1927; No. 60, 1932; Nos. 34 and 65, 1933; No. 45, 1934; No. 5, 1937; No. 43, 1939; No. 50, 1940; No. 10, 1946; No. 52, 1947; No. 65, 1948; Nos. 51 and 80, 1950; Nos. 17 and 35, 1955; No. 50, 1959; Nos. 32 and 109, 1960; No. 91, 1965; Nos. 55 and 93, 1966; No. 134, 1968; No. 39, 1969; No. 216, 1973; No. 164, 1976; No. 36, 1978; Nos. 19, 86 and 138, 1979; No. 61, 1981; No. 26, 1982; Nos. 39, 91 and 114, 1983; Nos. 7, 12, 72 and 165, 1984; No. 65, 1985; No. 1, 1986; and No. 38, 1988.
13. No. 91, 1964, as amended. For previous amendments, see No. 152, 1968; No. 216, 1973; No. 91, 1983; and No. 65, 1985.
14. No. 85, 1987, as amended. For previous amendments, see No. 66, 1988.
15. No. 87, 1987, as amended. For previous amendments, see No. 120, 1987.
16. No. 29, 1966, as amended. For previous amendments, see No. 216, 1973; No. 37, 1976; No. 118, 1981; No. 80, 1982; No. 165, 1984; and No. 94, 1986 (as amended by No. 141, 1987).
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House of Representatives on 10 November 1988
Senate on 5 December 1988
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