Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth)

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Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002

Act No. 86 of 2002 as amended

This compilation was prepared on 15 January 2002

[This Act was amended by Act No. 125 of 2002]

Amendments from Act No. 125 of 2002

[Schedule 3 (item 15) repealed heading before item 33 of Schedule 6;

Schedule 3 (item 16) repealed items 33 to 39 of Schedule 6

Schedule 3 (items 15 and 16) commenced on 1 January 2003]

Contents

An Act to deal with consequential and transitional matters arising from the enactment of the Proceeds of Crime Act 2002, and for other purposes

[Assented to 11 October 2002]

The Parliament of Australia enacts:

1Short title

This Act may be cited as the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002.

2Commencement
  1. (1)

    Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.

Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent

11 October 2002

2.

Schedules 1 to 4

At the same time as sections 3 to 338 of the Proceeds of Crime Act 2002 commence

1 January 2003

3.

Schedule 5, items 1 to 9

At the same time as sections 3 to 338 of the Proceeds of Crime Act 2002 commence

1 January 2003

4.

Schedule 5, item 10

The later of:

(a) the commencement of sections 3 to 338 of the Proceeds of Crime Act 2002; or

(b) immediately after the commencement of section 5 of the Family Law Legislation Amendment (Superannuation) Act 2001

1 January 2003

(paragraph (a) applies)

5.

Schedules 6 and 7

At the same time as sections 3 to 338 of the Proceeds of Crime Act 2002 commence

1 January 2003

Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

  1. (2)

    Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

3Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Money laundering

Criminal Code Act 1995

  1. 1

    The Schedule (before Part 10.5 of the Criminal Code)

    Insert:

Part 10.2—Money laundering

Division 400—Money laundering

400.1Definitions

  1. (1)

    In this Division:

ADI (authorised deposit‑taking institution) means:

  1. (a)

    a body corporate that is an ADI for the purposes of the Banking Act 1959; or

  2. (b)

    the Reserve Bank of Australia; or

  3. (c)

    a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.

deals with money or other property has the meaning given by section 400.2.

instrument of crime: money or other property is an instrument of crime if it is used in the commission of, or used to facilitate the commission of, an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

proceeds of crime means any money or other property that is derived or realised, directly or indirectly, by any person from the commission of an offence that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

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.

  1. (2)

    To avoid doubt, a reference in this Division to money or other property includes a reference to financial instruments, cards and other objects that represent money or can be exchanged for money, whether or not they have intrinsic value.

400.2Meaning of dealing with money or other property

  1. (1)

    For the purposes of this Division, a person deals with money or other property if:

    1. (a)

      the person does any of the following:

      (i) receives, possesses, conceals or disposes of money or other property;

      1. (ii)

        imports money or other property into, or exports money or other property from, Australia;

      2. (iii)

        engages in a banking transaction relating to money or other property; and

    2. (b)

      the money or other property is proceeds of crime, or could become an instrument of crime, in relation to an offence that is a Commonwealth indictable offence or a foreign indictable offence.

  2. (2)

    For the purposes of this Division, a person deals with money or other property if:

    1. (a)

      the person does any of the following:

      (i) receives, possesses, conceals or disposes of money or other property;

      1. (ii)

        imports money or other property into, or exports money or other property from, Australia;

      2. (iii)

        engages in a banking transaction relating to money or other property; and

    2. (b)

      the person does any of the matters referred to in paragraph (a):

      (i) in the course of or for the purposes of importation of goods into, or exportation of goods from, Australia; or

      1. (ii)

        by means of a communication using a postal, telegraphic or telephonic service within the meaning of paragraph 51(xx) of the Constitution; or

      2. (iii)

        in the course of banking (other than State banking that does not extend beyond the limits of the State concerned).

  3. (3)

    In this section:

banking transaction includes:

  1. (a)

    any transaction made at an ADI; and

  2. (b)

    any transaction involving a money order.

Commonwealth indictable offence means an offence against a law of the Commonwealth, or a law of a Territory (other than the Australian Capital Territory and the Northern Territory), that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

export money or other property, from Australia, includes transfer money or other property from Australia by an electronic communication.

foreign indictable offence means an offence against a law of a foreign country constituted by conduct that, if it had occurred in Australia, would have constituted an offence against:

  1. (a)

    a law of the Commonwealth; or

  2. (b)

    a law of a State or Territory connected with the offence;

that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

Note: See subsection (4) for when a law of a State or Territory is connected with the offence.

import money or other property, into Australia, includes transfer money or other property to Australia by an electronic communication.

  1. (4)

    For the purposes of the definition of foreign indictable offence in subsection (3), a State or Territory is connected with the offence if:

    1. (a)

      a dealing in money or property takes place in the State or Territory; and

    2. (b)

      the money or property would be proceeds of crime, or could become an instrument of crime, in relation to the offence if the offence were a foreign indictable offence.

400.3Dealing in proceeds of crime etc.—money or property worth $1,000,000 or more

  1. (1)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is, and the person believes it to be, proceeds of crime; or

      1. (ii)

        the person intends that the money or property will become an instrument of crime; and

    3. (c)

      at the time of the dealing, the value of the money and other property is $1,000,000 or more.

    Penalty: Imprisonment for 25 years, or 1500 penalty units, or both.

  2. (2)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is proceeds of crime; or

      1. (ii)

        there is a risk that the money or property will become an instrument of crime; and

    3. (c)

      the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

    4. (d)

      at the time of the dealing, the value of the money and other property is $1,000,000 or more.

    Penalty: Imprisonment for 12 years, or 720 penalty units, or both.

  3. (3)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is proceeds of crime; or

      1. (ii)

        there is a risk that the money or property will become an instrument of crime; and

    3. (c)

      the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

    4. (d)

      at the time of the dealing, the value of the money and other property is $1,000,000 or more.

    Penalty: Imprisonment for 5 years, or 300 penalty units, or both.

  4. (4)

    Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).

    Note: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.

400.4Dealing in proceeds of crime etc.—money or property worth $100,000 or more

  1. (1)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is, and the person believes it to be, proceeds of crime; or

      1. (ii)

        the person intends that the money or property will become an instrument of crime; and

    3. (c)

      at the time of the dealing, the value of the money and other property is $100,000 or more.

    Penalty: Imprisonment for 20 years, or 1200 penalty units, or both.

  2. (2)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is proceeds of crime; or

      1. (ii)

        there is a risk that the money or property will become an instrument of crime; and

    3. (c)

      the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

    4. (d)

      at the time of the dealing, the value of the money and other property is $100,000 or more.

    Penalty: Imprisonment for 10 years, or 600 penalty units, or both.

  3. (3)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is proceeds of crime; or

      1. (ii)

        there is a risk that the money or property will become an instrument of crime; and

    3. (c)

      the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

    4. (d)

      at the time of the dealing, the value of the money and other property is $100,000 or more.

    Penalty: Imprisonment for 4 years, or 240 penalty units, or both.

  4. (4)

    Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).

    Note: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.

400.5Dealing in proceeds of crime etc.—money or property worth $50,000 or more

  1. (1)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is, and the person believes it to be, proceeds of crime; or

      1. (ii)

        the person intends that the money or property will become an instrument of crime; and

    3. (c)

      at the time of the dealing, the value of the money and other property is $50,000 or more.

    Penalty: Imprisonment for 15 years, or 900 penalty units, or both.

  2. (2)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is proceeds of crime; or

      1. (ii)

        there is a risk that the money or property will become an instrument of crime; and

    3. (c)

      the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

    4. (d)

      at the time of the dealing, the value of the money and other property is $50,000 or more.

    Penalty: Imprisonment for 7 years, or 420 penalty units, or both.

  3. (3)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is proceeds of crime; or

      1. (ii)

        there is a risk that the money or property will become an instrument of crime; and

    3. (c)

      the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

    4. (d)

      at the time of the dealing, the value of the money and other property is $50,000 or more.

    Penalty: Imprisonment for 3 years, or 180 penalty units, or both.

  4. (4)

    Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).

    Note: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.

400.6Dealing in proceeds of crime etc.—money or property worth $10,000 or more

  1. (1)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is, and the person believes it to be, proceeds of crime; or

      1. (ii)

        the person intends that the money or property will become an instrument of crime; and

    3. (c)

      at the time of the dealing, the value of the money and other property is $10,000 or more.

    Penalty: Imprisonment for 10 years, or 600 penalty units, or both.

  2. (2)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is proceeds of crime; or

      1. (ii)

        there is a risk that the money or property will become an instrument of crime; and

    3. (c)

      the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

    4. (d)

      at the time of the dealing, the value of the money and other property is $10,000 or more.

    Penalty: Imprisonment for 5 years, or 300 penalty units, or both.

  3. (3)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is proceeds of crime; or

      1. (ii)

        there is a risk that the money or property will become an instrument of crime; and

    3. (c)

      the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

    4. (d)

      at the time of the dealing, the value of the money and other property is $10,000 or more.

    Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

  4. (4)

    Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).

    Note: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.

400.7Dealing in proceeds of crime etc.—money or property worth $1,000 or more

  1. (1)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is, and the person believes it to be, proceeds of crime; or

      1. (ii)

        the person intends that the money or property will become an instrument of crime; and

    3. (c)

      at the time of the dealing, the value of the money and other property is $1,000 or more.

    Penalty: Imprisonment for 5 years, or 300 penalty units, or both.

  2. (2)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is proceeds of crime; or

      1. (ii)

        there is a risk that the money or property will become an instrument of crime; and

    3. (c)

      the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

    4. (d)

      at the time of the dealing, the value of the money and other property is $1,000 or more.

    Penalty: Imprisonment for 2 years, or 120 penalty units, or both.

  3. (3)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is proceeds of crime; or

      1. (ii)

        there is a risk that the money or property will become an instrument of crime; and

    3. (c)

      the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and

    4. (d)

      at the time of the dealing, the value of the money and other property is $1,000 or more.

    Penalty: Imprisonment for 12 months, or 60 penalty units, or both.

  4. (4)

    Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).

    Note: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.

400.8Dealing in proceeds of crime etc.—money or property of any value

  1. (1)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is, and the person believes it to be, proceeds of crime; or

      1. (ii)

        the person intends that the money or property will become an instrument of crime.

    Penalty: Imprisonment for 12 months, or 60 penalty units, or both.

  2. (2)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is proceeds of crime; or

      1. (ii)

        there is a risk that the money or property will become an instrument of crime; and

    3. (c)

      the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires).

    Penalty: Imprisonment for 6 months, or 30 penalty units, or both.

  3. (3)

    A person is guilty of an offence if:

    1. (a)

      the person deals with money or other property; and

    2. (b)

      either:

      (i) the money or property is proceeds of crime; or

      1. (ii)

        there is a risk that the money or property will become an instrument of crime; and

    3. (c)

      the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires).

    Penalty: 10 penalty units.

400.9Possession etc. of property reasonably suspected of being proceeds of crime etc.

  1. (1)

    A person is guilty of an offence if:

    1. (a)

      the person:

      (i) receives, possesses, conceals or disposes of money or other property; or

      1. (ii)

        imports money or other property into, or exports money or other property from, Australia; and

    2. (b)

      it is reasonable to suspect either or both of the following:

      (i) the money or property is proceeds of crime in relation to a Commonwealth indictable offence or a foreign indictable offence;

      1. (ii)

        the money or property is proceeds of crime, and the person’s conduct referred to in paragraph (a) takes place in circumstances referred to in subsection (3).

    Penalty: Imprisonment for 2 years, or 50 penalty units, or both.

  2. (2)

    Without limiting paragraph (1)(b), that paragraph is taken to be satisfied if:

    1. (a)

      the conduct referred to in paragraph (1)(a) involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Financial Transaction Reports Act 1988 that would otherwise apply to the transactions; or

    2. (b)

      the conduct involves using one or more accounts held with ADIs in false names; or

    3. (c)

      the value of the money and property involved in the conduct is, in the opinion of the trier of fact, grossly out of proportion to the defendant’s income and expenditure; or

    4. (d)

      the conduct involves a significant cash transaction within the meaning of the Financial Transaction Reports Act 1988, and the defendant:

      (i) has contravened his or her obligations under that Act relating to reporting the transaction; or

      1. (ii)

        has given false or misleading information in purported compliance with those obligations; or

    5. (e)

      the defendant:

      (i) has stated that the conduct was engaged in on behalf of or at the request of another person; and

      1. (ii)

        has not provided information enabling the other person to be identified and located.

  3. (3)

    Subparagraph (1)(b)(ii) applies if the conduct in question takes place:

    1. (a)

      in the course of or for the purposes of importation of goods into, or exportation of goods from, Australia; or

    2. (b)

      by means of a communication using a postal, telegraphic or telephonic service within the meaning of paragraph 51(xx) of the Constitution; or

    3. (c)

      in the course of banking (other than State banking that does not extend beyond the limits of the State concerned).

  4. (4)

    Absolute liability applies to paragraph (1)(b).

  5. (5)

    This section does not apply if the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity.

  1. Note: A defendant bears a legal burden in relation to the matter in subsection (5) (see section 13.4).

400.10Mistake of fact as to the value of money or property

  1. (1)

    A person is not criminally responsible for an offence against section 400.3, 400.4, 400.5, 400.6 or 400.7 in relation to money or property if:

    1. (a)

      at or before the time of dealing with the money or property, the person considered what was the value of the money or property, and was under a mistaken but reasonable belief about that value; and

    2. (b)

      had the value been what the person believed it to be, the person’s conduct would have constituted another offence against this Division for which the maximum penalty, in penalty units, is less than the maximum penalty, in penalty units, for the offence charged.

    Example: Assume that a person deals with money or property that is the proceeds of crime. While the person believes it to be proceeds of crime, he or she is under a mistaken but reasonable belief that it is worth $90,000 when it is in fact worth $120,000.

    That belief is a defence to an offence against subsection 400.4(1) (which deals with money or property of a value of $100,000 or more). However, the person would be guilty of an offence against subsection 400.5(1) (which deals with money or property of a value of $10,000 or more). Section 400.14 allows for an alternative verdict of guilty of an offence against subsection 400.5(1).

    Note: A defendant bears an evidential burden in relation to the matter in subsection (1) (see subsection 13.3(3)).

  2. (2)

    A person may be regarded as having considered what the value of the money or property was if:

    1. (a)

      he or she had considered, on a previous occasion, what the value of the money or property was in the circumstances surrounding that occasion; and

    2. (b)

      he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.

400.11Proof of certain matters relating to kinds of offences not required

In a prosecution for an offence against a provision of this Division, it is not necessary to prove the existence of any fault element in relation to any of the following:

  1. (a)

    whether an offence may be dealt with as an indictable offence;

  2. (b)

    whether an offence is an indictable offence;

  3. (c)

    whether an offence is a Commonwealth indictable offence;

  4. (d)

    whether an offence is a foreign indictable offence.

400.12Combining several contraventions in a single charge

  1. (1)

    A single charge of an offence against a provision of this Division may be about 2 or more instances of the defendant engaging in conduct (at the same time or different times) that constitutes an offence against a provision of this Division.

  2. (2)

    If:

    1. (a)

      a single charge is about 2 or more such instances; and

    2. (b)

      the value of the money and other property dealt with is an element of the offence in question;

that value is taken to be the sum of the values of the money and other property dealt with in respect of each of those instances.

400.13Proof of other offences is not required

  1. (1)

    To avoid doubt, it is not necessary, in order to prove for the purposes of this Division that money or property is proceeds of crime, to establish:

    1. (a)

      a particular offence was committed in relation to the money or property; or

    2. (b)

      a particular person committed an offence in relation to the money or property.

  2. (2)

    To avoid doubt, it is not necessary, in order to prove for the purposes of this Division an intention or risk that money or property will be an instrument of crime, to establish that:

    1. (a)

      an intention or risk that a particular offence will be committed in relation to the money or property; or

    2. (b)

      an intention or risk that a particular person will commit an offence in relation to the money or property.

400.14Alternative verdicts

If, on a trial for an offence against a provision of this Division (the offence charged), the trier of fact:

  1. (a)

    is not satisfied that the defendant is guilty of the offence charged; but

  2. (b)

    is otherwise satisfied that the defendant is guilty of another offence against this Division for which the maximum penalty, in penalty units, is less than the maximum penalty, in penalty units, for the offence charged;

the trier of fact may find the defendant not guilty of the offence charged but guilty of the other offence, so long as the person has been accorded procedural fairness in relation to that finding of guilt.

400.15Geographical jurisdiction

Section 15.2 (extended geographical jurisdiction—category B) applies to each offence against this Division.

400.16Saving of other laws

This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

Proceeds of Crime Act 1987

  1. 2

    Subsection 4(1) (definition of proceeds of crime)

    Repeal the definition.

3

Division 1 of Part V

Repeal the Division.

Telecommunications (Interception) Act 1979

4

Paragraph 5D(4)(a)

Repeal the paragraph, substitute:

  1. (a)

    Part 10.2 of the Criminal Code (other than section 400.9);

Schedule 2Foreign proceeds of crime orders and requests by Australia for orders in foreign countries

International War Crimes Tribunals Act 1995

1

Subsection 46(1)

Omit “Proceeds of Crime Act 1987”, substitute “Proceeds of Crime Act 2002”.

2

After subsection 46(1)

Insert:

  1. (1A)

    In particular, section 68 of the Proceeds of Crime Act 2002 applies in relation to the forfeiture order as if:

    1. (a)

      the reference in subparagraph 68(1)(b)(i) of that Act to the Director of Public Prosecutions having applied for the order were a reference to the Director of Public Prosecutions having applied for registration of the order under section 45 of this Act; and

    2. (b)

      subparagraph 68(1)(b)(ii) of that Act were repealed.

3

Subsection 46(3)

Repeal the subsection, substitute:

  1. (3)

    Subject to section 46A, property that is subject to an order registered under this Part may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney‑General or of a person authorised by the Attorney‑General in writing for the purposes of this subsection.

  2. (4)

    Sections 69 to 71, Divisions 5 to 7 of Part 2‑2, Part 4‑2 and sections 322 and 323 of the Proceeds of Crime Act 2002 do not apply in relation to an order registered under this Part.

4

At the end of Part 6

Add:

46AEffect on third parties of registration of forfeiture orders

Applications by third parties

  1. (1)

    If a court registers under section 45 a forfeiture order against property, a person who:

    1. (a)

      claims an interest (within the meaning of the Proceeds of Crime Act 2002) in the property; and

    2. (b)

      was not convicted of an offence in respect of which the order was made;

may apply to the court for an order under subsection (2).

Orders by the court

  1. (2)

    If, on an application for an order under this subsection, the court is satisfied that:

    1. (a)

      the applicant was not, in any way, involved in the commission of an offence in respect of which the forfeiture order was made; and

    2. (b)

      if the applicant acquired the interest in the property at the time of or after the commission of such an offence—the property was neither:

      (i) proceeds (within the meaning of the Proceeds of Crime Act 2002) of such an offence; nor

      1. (ii)

        an instrument (within the meaning of that Act) of such an offence;

the court must make an order:

  1. (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

  2. (d)

    either:

    (i) directing the Commonwealth to transfer the interest to the applicant; or

    1. (ii)

      declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

Certain people need leave to apply

  1. (3)

    A person who was given notice of, or appeared at, the hearing held in connection with the making of the forfeiture order is not entitled to apply under subsection (1) unless the court gives leave.

  2. (4)

    The court may give leave if satisfied that there are special grounds for doing so.

  3. (5)

    Without limiting subsection (4), the court may grant a person leave if the court is satisfied that:

    1. (a)

      the person, for a good reason, did not attend the hearing referred to in subsection (3) although the person had notice of the hearing; or

    2. (b)

      particular evidence that the person proposes to adduce in connection with the proposed application under subsection (1) was not available to the person at the time of the hearing referred to in subsection (3).

Period for applying

  1. (6)

    Unless the court gives leave, an application under subsection (1) is to be made before the end of 6 weeks beginning on the day when the forfeiture order is registered in the court.

  2. (7)

    The court may give leave to apply outside that period 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.

Procedural matters

  1. (8)

    A person who applies under subsection (1) must give to the Director of Public Prosecutions and the Attorney‑General notice, as prescribed, of the application.

  2. (9)

    The Director of Public Prosecutions is to be a party to proceedings on an application under subsection (1). The Attorney‑General may intervene in the proceedings.

5

Continued application of certain regulations made under the Proceeds of Crime Act 1987

If:

  1. (a)

    immediately after the commencement of this Schedule, regulations for the purposes of subsection 46A(8) of the International War Crimes Tribunals Act 1995 are not in force; and

  2. (b)

    immediately before that commencement, regulations for the purposes of subsection 23A(10) of the Proceeds of Crime Act 1987 were in force;

subsection 46A(8) of the International War Crimes Tribunals Act 1995 has effect, until regulations for the purposes of that subsection come into force, as if the regulations referred to in paragraph (b) were regulations for the purposes of that subsection.

Mutual Assistance in Criminal Matters Act 1987

6

Subsection 3(1)

Insert:

account has the same meaning as in the Proceeds of Crime Act.

7

Subsection 3(1)

Insert:

agent has the same meaning as in the Proceeds of Crime Act.

8

Subsection 3(1) (definition of ancillary offence)

Repeal the definition, substitute:

ancillary offence, in relation to an offence (in this definition called the main offence), means:

  1. (a)

    an offence of conspiring to commit the main offence; or

  2. (b)

    an offence of aiding, abetting, inciting, counselling or procuring, or being in any way knowingly concerned in, the commission of the main offence; or

  3. (c)

    an offence of receiving or assisting another person in order to enable the person to escape punishment for, or to dispose of the proceeds of, the main offence; or

  4. (d)

    an offence of attempting to commit the main offence.

9

Subsection 3(1) (paragraph (a) of the definition of Australian forfeiture order)

Omit “the Proceeds of Crime Act;”, substitute “a proceeds of crime law; or”.

10

Subsection 3(1) (after paragraph (a) of the definition of Australian forfeiture order)

Insert:

(aa) a declaration made under section 95 of the Proceeds of Crime Act; or

11

Subsection 3(1) (paragraph (ab) of the definition of Australian forfeiture order)

Omit “Proceeds of Crime Act”, substitute “Proceeds of Crime Act 1987; or”.

12

Subsection 3(1)

Insert:

Australian literary proceeds order means:

  1. (a)

    a literary proceeds order within the meaning of the Proceeds of Crime Act; or

  2. (b)

    an order, made under Australian law, that:

    (i) imposes a pecuniary penalty on a person in respect of an offence against Australian law; and

    1. (ii)

      is, in accordance with the regulations, to be taken to be an Australian literary proceeds order for the purposes of this Act.

13

Subsection 3(1) (paragraph (a) of the definition of Australian pecuniary penalty order)

Omit “the Proceeds of Crime Act;”, substitute “a proceeds of crime law; or”.

14

Subsection 3(1) (paragraph (a) of the definition of Australian restraining order)

Repeal the paragraph, substitute:

  1. (a)

    a restraining order within the meaning of a proceeds of crime law (other than a restraining order made by virtue of section 59 of the Proceeds of Crime Act 1987 or section 34K of this Act); or

15

Subsection 3(1)

Insert:

authorised officer has the same meaning as in the Proceeds of Crime Act.

16

Subsection 3(1)

Insert:

Confiscated Assets Account means the account established under section 295 of the Proceeds of Crime Act.

17

Subsection 3(1)

Insert:

enforcement agency has the same meaning as in the Proceeds of Crime Act.

18

Subsection 3(1)

Insert:

foreign confiscation proceedings means proceedings in a foreign country in respect of the making of a foreign forfeiture order or a foreign pecuniary penalty order.

19

Subsection 3(1)

Insert:

foreign order means:

  1. (a)

    a foreign forfeiture order; or

  2. (b)

    a foreign pecuniary penalty order; or

  3. (c)

    a foreign restraining order.

20

Subsection 3(1) (definition of foreign organised fraud offence)

Repeal the definition.

21

Subsection 3(1)

Insert:

instrument, in relation to an offence, has the same meaning as in the Proceeds of Crime Act.

22

Subsection 3(1)

Insert:

interest, in relation to property, has the same meaning as in the Proceeds of Crime Act.

23

Subsection 3(1)

Insert:

narcotic substance has the same meaning as in the Proceeds of Crime Act.

24

Subsection 3(1)

Insert:

officer, in relation to a financial institution, has the same meaning as in the Proceeds of Crime Act.

25

Subsection 3(1)

Insert:

Official Trustee means the Official Trustee in Bankruptcy.

26

Subsection 3(1) (definition of proceeds)

Repeal the definition, substitute:

proceeds, in relation to an offence, has the same meaning as in the Proceeds of Crime Act.

27

Subsection 3(1)

Insert:

proceeds jurisdiction has the same meaning as in the Proceeds of Crime Act.

28

Subsection 3(1) (definition of Proceeds of Crime Act)

Omit “1987”, substitute “2002”.

29

Subsection 3(1)

Insert:

proceeds of crime law means:

  1. (a)

    the Proceeds of Crime Act 2002; or

  2. (b)

    the Proceeds of Crime Act 1987.

30

Subsection 3(1)

Insert:

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

31

Subsection 3(1) (definition of serious narcotics offence)

Repeal the definition.

32

Subsection 3(1) (definition of tainted property)

Repeal the definition.

33

Paragraph 32(b)

After “pecuniary penalty order”, insert “, or an Australian literary proceeds order,”.

34

Paragraph 33(a)

Repeal the paragraph.

35

Paragraphs 33(c) and (d)

Omit “in respect of a property‑tracking document”.

36

Division 2 of Part VI

Repeal the Division, substitute:

Division 2—Requests by foreign countries

Subdivision A—Enforcement of foreign orders

34Requests for enforcement of foreign orders

  1. (1)

    If:

    1. (a)

      a foreign country requests the Attorney‑General to make arrangements for the enforcement of:

      (i) a foreign forfeiture order, made in respect of a foreign serious offence, against property that is reasonably suspected of being located in Australia; or

      1. (ii)

        a foreign pecuniary penalty order, made in respect of a foreign serious offence, where some or all of the property available to satisfy the order is reasonably suspected of being located in Australia; and

    2. (b)

      the Attorney‑General is satisfied that:

      (i) a person has been convicted of the offence; and

      1. (ii)

        the conviction and the order are not subject to further appeal in the foreign country;

the Attorney‑General may authorise the DPP, in writing, to apply for the registration of the order in a specified court.

  1. (2)

    If a foreign country that is specified in regulations made for the purposes of this subsection requests the Attorney‑General to make arrangements for the enforcement of:

    1. (a)

      a foreign forfeiture order that:

      (i) has the effect of forfeiting a person’s property on the basis that the property is, or is alleged to be, the proceeds or an instrument of a foreign serious offence (whether or not a person has been convicted of that offence); and

      1. (ii)

        is made against property that is reasonably suspected of being located in Australia; or

    2. (b)

      a foreign pecuniary penalty order in respect of which both of the following apply:

      (i) the order has the effect of requiring a person to pay an amount of money on the basis that the money is, or is alleged to be, the benefit derived from a foreign serious offence (whether or not the person has been convicted of that offence);

      1. (ii)

        some or all of the property available to satisfy the order is reasonably suspected of being located in Australia;

the Attorney‑General may authorise the DPP, in writing, to apply for the registration of the order in a specified court.

  1. (3)

    If a foreign country requests the Attorney‑General to make arrangements for the enforcement of a foreign restraining order, against property that is reasonably suspected of being located in Australia, that is:

    1. (a)

      in any case—made in respect of a foreign serious offence for which a person has been convicted; or

    2. (b)

      if the foreign country is specified in regulations made for the purposes of subsection (2)—made in respect of the alleged commission of a foreign serious offence (whether or not the identity of the person who committed the offence is known);

the Attorney‑General may authorise the DPP, in writing, to apply for the registration of the order in a specified court.

  1. (4)

    The court that the Attorney‑General specifies under subsection (1), (2) or (3) must be a court with proceeds jurisdiction in a State or Territory in which the property, or some or all of the property, is reasonably suspected of being located.

34ARegistration of foreign orders

  1. (1)

    If the DPP applies to a court for registration of a foreign order in accordance with an authorisation under this Subdivision, the court must register the order accordingly.

  2. (2)

    The DPP must give notice of the application:

    1. (a)

      to specified persons the DPP has reason to suspect may have an interest in the property; and

    2. (b)

      to such other persons as the court directs.

  3. (3)

    However, the court must consider the application without notice having been given if the DPP requests the court to do so.

  4. (4)

    If a foreign pecuniary penalty order or a foreign restraining order is registered in a court under this Subdivision:

    1. (a)

      a copy of any amendments made to the order (whether before or after registration) may be registered in the same way as the order; and

    2. (b)

      the amendments do not, for the purposes of this Act and the Proceeds of Crime Act, have effect until they are registered.

  5. (5)

    An order or an amendment of an order is to be registered in a court by the registration, in accordance with the rules of the court, of:

    1. (a)

      a copy of the appropriate order or amendment sealed by the court or other authority making that order or amendment; or

    2. (b)

      a copy of that order or amendment duly authenticated in accordance with subsection 43(2).

34BEnforcement of foreign forfeiture orders

  1. (1)

    A foreign forfeiture order registered in a court under this Subdivision has effect, and may be enforced, as if it were a forfeiture order made by the court under the Proceeds of Crime Act at the time of registration.

  2. (2)

    In particular, section 68 of the Proceeds of Crime Act 2002 applies in relation to the forfeiture order as if:

    1. (a)

      the reference in subparagraph 68(1)(b)(i) of that Act to the DPP having applied for the order were a reference to the foreign forfeiture order having been made; and

    2. (b)

      subparagraph 68(1)(b)(ii) of that Act did not apply if the person in question died after the DPP applied for registration of the order under section 34A of this Act.

  3. (3)

    Subject to section 34C, property that is subject to a foreign forfeiture order registered under this Subdivision may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney‑General or of a person authorised by the Attorney‑General in writing for the purposes of this subsection.

  4. (4)

    Sections 69 and 70 and Divisions 5 to 7 of Part 2‑2 of the Proceeds of Crime Act do not apply in relation to a foreign forfeiture order registered under this Subdivision.

34CEffect on third parties of registration of foreign forfeiture orders

Applications by third parties

  1. (1)

    If a court registers under section 34A a foreign forfeiture order against property, a person who:

    1. (a)

      claims an interest in the property; and

    2. (b)

    1. either:

      (i) if the registration relates to an authorisation given under subsection 34(1)—was not convicted of a foreign serious offence in respect of which the order was made; or

      1. (ii)

        if the registration relates to an authorisation given under subsection 34(2)—is not a person whom the court has reason to believe committed a foreign serious offence in respect of which the order was made;

may apply to the court for an order under subsection (2).

Orders by the court

  1. (2)

    If, on an application for an order under this subsection, the court is satisfied that:

    1. (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

    2. (b)

      if the applicant acquired the interest in the property at the time of or after the commission of such an offence—the property was neither proceeds nor an instrument of such an offence;

the court must make an order:

  1. (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

  2. (d)

    either:

    (i) directing the Commonwealth to transfer the interest to the applicant; or

    1. (ii)

      declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

Certain people need leave to apply

  1. (3)

    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 to apply under subsection (1) unless the court gives leave.

  2. (4)

    The court may give leave if satisfied that there are special grounds for doing so.

  3. (5)

    Without limiting subsection (4), the court may grant a person leave if the court is satisfied that:

    1. (a)

      the person, for a good reason, did not attend the hearing referred to in subsection (3) although the person had notice of the hearing; or

    2. (b)

      particular evidence that the person proposes to adduce in connection with the proposed application under subsection (1) was not available to the person at the time of the hearing referred to in subsection (3).

Period for applying

  1. (6)

    Unless the court gives leave, an application under subsection (1) is to be made before the end of 6 weeks beginning on the day when the foreign forfeiture order is registered in the court.

  2. (7)

    The court may give leave to apply outside that period 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.

Procedural matters

  1. (8)

    A person who applies under subsection (1) must give to the DPP notice, as prescribed, of the application.

  2. (9)

    The DPP is to be a party to proceedings on an application under subsection (1). The Attorney‑General may intervene in the proceedings.

34DEnforcement of foreign pecuniary penalty orders

  1. (1)

    A foreign pecuniary penalty order registered in a court under this Subdivision has effect, and may be enforced, as if it were a pecuniary penalty order that:

    1. (a)

      was made by the court under the Proceeds of Crime Act at the time of registration; and

    2. (b)

      requires the payment to the Commonwealth of the amount payable under the order.

  2. (2)

    Any amount paid (whether in Australia, in the foreign country in which the order was made or elsewhere) in satisfaction of the foreign pecuniary penalty order is taken to have been paid in satisfaction of the debt that arises because of the registration of the foreign pecuniary penalty order in that court.

  3. (3)

    Division 5 of Part 2‑4 of the Proceeds of Crime Act does not apply in relation to a foreign pecuniary penalty order registered under this Subdivision.

34EEnforcement of foreign restraining orders

  1. (1)

    A foreign restraining order registered in a court under this Subdivision has effect, and may be enforced, as if it were a restraining order that:

    1. (a)

      was made by the court under the Proceeds of Crime Act at the time of the registration; and

    2. (b)

      directed that the property specified in the order is not to be disposed of or otherwise dealt with by any person.

  2. (2)

    In particular:

    1. (a)

      section 288 of that Act applies as if:

      (i) the reference in that section to the Official Trustee’s exercise of powers under that Act included a reference to the Official Trustee’s exercise of those powers in relation to a foreign restraining order so registered; and

      1. (ii)

        the reference in that section to the Official Trustee’s performance of functions or duties under that Act included a reference to the Official Trustee’s performance of those functions or duties in relation to such a foreign restraining order; and

    2. (b)

      section 289 of that Act applies as if the reference in that section to controlled property included a reference to property that is subject to an order under section 35; and

    3. (c)

      section 290 of that Act applies as if the reference in that section to the controlled property were a reference to the property that is subject to an order under section 35.

  3. (3)

    Divisions 1, 2 and 3 of Part 2‑1, section 33, Divisions 5 and 6 of Part 2‑1 and sections 142, 143, 169, 170 and 282 to 287 of the Proceeds of Crime Act do not apply in relation to a foreign restraining order registered under this Subdivision.

    Note: Division 3 of this Part contains further provisions relating to registered foreign restraining orders.

34FFaxed copies of foreign orders

  1. (1)

    A faxed copy of a sealed or authenticated copy of a foreign order or an amendment of a foreign order is to be regarded for the purposes of this Act as the same as the sealed or authenticated copy.

  2. (2)

    However, if registration of the order under this Subdivision is effected by means of the faxed copy, the registration ceases to have effect at the end of 21 days unless the sealed or authenticated copy has been filed by then in the court that registered the order.

34GCancelling registration

  1. (1)

    The Attorney‑General may direct the DPP to apply to a court in which:

    1. (a)

      a foreign pecuniary penalty order; or

    2. (b)

      a foreign restraining order;

has been registered under this Subdivision for cancellation of the registration.

  1. (2)

    Without limiting subsection (1), the Attorney‑General may give a direction under that subsection in relation to an order if the Attorney‑General is satisfied that:

    1. (a)

      the order has ceased to have effect in the foreign country in which the order was made; or

    2. (b)

      cancellation of the order is appropriate having regard to the arrangements entered into between Australia and the foreign country in relation to the enforcement of orders of that kind.

  2. (3)

    The court to which the DPP applies in accordance with a direction under subsection (1) must cancel the registration accordingly.

34HCertain provisions of the Proceeds of Crime Act not to apply

Part 4‑2 and sections 322 and 323 of the Proceeds of Crime Act do not apply to a foreign order registered under this Subdivision.

Subdivision B—Restraining orders relating to foreign criminal proceedings

34JRequests for restraining orders

  1. (1)

    If:

    (a) either:

    (i) a criminal proceeding has commenced, or there are reasonable grounds to suspect that a criminal proceeding is about to commence, in a foreign country in respect of a foreign serious offence; or

    1. (ii)

      a foreign country is specified in regulations made for the purposes of subsection 34(2), and foreign confiscation proceedings have commenced, or there are reasonable grounds to suspect that such proceedings are about to commence, in the foreign country; and

    1. (b)

      there are reasonable grounds to believe that property that may be made or is about to be made the subject of a foreign restraining order is located in Australia; and

    2. (c)

      the foreign country requests the Attorney‑General to obtain the issue of a restraining order against the property;

the Attorney‑General may authorise the DPP to apply to a specified court for a restraining order against that property in respect of the offence.

  1. (2)

    The court specified must be a court with proceeds jurisdiction in a State or Territory in which the property, or some or all of the property, is reasonably suspected of being located.

34KApplying for and making restraining orders

  1. (1)

    If so authorised, the DPP may apply for such a restraining order against that property in respect of the offence.

  2. (2)

    Part 2‑1 of the Proceeds of Crime Act applies to the application, and to any restraining order made as a result.

  3. (3)

    It applies as if:

    1. (a)

      references in that Part to an indictable offence were references to the foreign serious offence; and

    2. (b)

      references in that Part to a court with proceeds jurisdiction were references to the court specified in the DPP’s authorisation under section 34J of this Act; and

    3. (c)

      in a case to which subparagraph 34J(1)(a)(i) applies:

      (i) references in that Part to a person charged with an indictable offence were references to a person against whom a criminal proceeding in respect of a foreign serious offence has commenced in a foreign country; and

      1. (ii)

        references in that Part to it being proposed to charge a person with an indictable offence were a reference to it being reasonably suspected that criminal proceedings are about to commence in respect of a foreign serious offence against the person in a foreign country; and

      2. (iii)

        paragraphs 17(1)(e) and (f), subsections 17(3) and (4) and sections 18 to 20, 29, 44 and 45 of that Act were omitted; and

    4. (d)

      in a case to which subparagraph 34J(1)(a)(ii) applies in relation to a foreign country:

      (i) references in that Part to reasonable grounds to suspect that a person has committed a serious offence were references to reasonable grounds to suspect that such proceedings have commenced, or are about to commence, in the foreign country; and

      1. (ii)

        section 17, paragraphs 18(1)(e) and (f), subsection 18(3) and sections 19, 20, 29, 44 and 45 of that Act were omitted.

34LExcluding property from restraining orders

If:

  1. (a)

    a person (the defendant) has been alleged, in a criminal proceeding in a foreign country, to have committed a foreign serious offence; and

  2. (b)

    a court makes a restraining order under Part 2‑1 of the Proceeds of Crime Act against property in respect of the offence; and

  3. (c)

    a person having an interest in the property applies to the court under Division 3 of Part 2‑1 of that Act for an order varying the restraining order to exclude the person’s interest from the restraining order;

the court must grant the application if the court is satisfied that:

  1. (d)

    in a case where the applicant is not the defendant:

    (i) the applicant was not, in any way, involved in the commission of the offence; and

    1. (ii)

      if the applicant acquired the interest at the time of or after the commission, or alleged commission, of the offence—the property was neither proceeds nor an instrument of the offence; or

  2. (e)

    in any case—it is in the public interest to do so having regard to any financial hardship or other consequence of the interest remaining subject to the order.

34MCessation of restraining orders

  1. (1)

    A restraining order made in respect of a foreign serious offence as a result of an application under subsection 34K(1) ceases to have effect:

    1. (a)

      at the end of the period of 30 days commencing on the day on which the order is made; or

    2. (b)

      if the court that made the restraining order, on application made by the DPP before the end of the period referred to in paragraph (a), extends the period of operation of the order—at the end of the period as so extended.

  2. (2)

    However, the restraining order ceases to have effect upon the registration of a foreign restraining order against the property under Subdivision A if that registration occurs before the end of the period referred to in paragraph (1)(a) or (b) (as the case requires).

Subdivision C—Production orders relating to foreign serious offences

34NRequests for production orders

  1. (1)

    If:

    1. (a)

      a criminal proceeding or criminal investigation has commenced in a foreign country in respect of a foreign serious offence; and

    2. (b)

      a property‑tracking document in relation to the offence is reasonably suspected of being located in Australia; and

    3. (c)

      the foreign country requests the Attorney‑General to obtain the issue of a production order requiring that the document be produced or made available for inspection in accordance with Australian law;

the Attorney‑General may authorise an authorised officer of an enforcement agency to apply to a magistrate of a specified State or Territory for a production order under the Proceeds of Crime Act in respect of the offence for the purpose of obtaining possession of the property‑tracking document.

  1. (2)

    The State or Territory specified must be a State or Territory in which the document is, or some or all of the documents are, reasonably suspected of being located.

34PApplying for and making production orders

  1. (1)

    If so authorised, the authorised officer may apply for such a production order against that property in respect of the offence.

  2. (2)

    Part 3‑2 of the Proceeds of Crime Act applies to the application, and to any production order made as a result.

  3. (3)

    It applies as if:

    1. (a)

      references in that Part to an indictable offence or to a serious offence were references to the foreign serious offence; and

    2. (b)

      references in that Part to a magistrate were references to a magistrate of the State or Territory specified in the authorised officer’s authorisation under subsection 34N(1); and

    3. (c)

      subparagraphs 202(5)(a)(ii) and (iii) and (c)(ii) and (iii), paragraph 202(5)(e) and subsection 205(1) of that Act were omitted.

34QRetaining produced documents

  1. (1)

    An authorised officer who takes possession of a document under a production order made in respect of a foreign serious offence may retain the document pending a written direction from the Attorney‑General as to how to deal with the document.

  2. (2)

    Directions from the Attorney‑General may include a direction that the document be sent to an authority of the foreign country that requested the obtaining of the production order.

Subdivision D—Notices to financial institutions

34RGiving notices to financial institutions

  1. (1)

    The Attorney‑General or a senior Departmental officer may give a written notice to a financial institution requiring the institution to provide to an authorised officer any information or documents relevant to any one or more of the following:

    1. (a)

      determining whether an account is held by a specified person with the financial institution;

    2. (b)

      determining whether a particular person is a signatory to an account;

    3. (c)

      if a person holds an account with the institution, the current balance of the account;

    4. (d)

      details of transactions on such an account over a specified period of up to 6 months;

    5. (e)

      details of any related accounts (including names of those who hold those accounts);

    6. (f)

      a transaction conducted by the financial institution on behalf of a specified person.

  2. (2)

    The Attorney‑General or the senior Departmental officer must not issue the notice unless he or she reasonably believes that giving the notice is required:

    1. (a)

      to determine whether to take any action under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division; or

    2. (b)

      in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division.

  3. (3)

    In this section:

senior Departmental officer has the same meaning as in the Proceeds of Crime Act.

34SContents of notices to financial institutions

The notice must:

  1. (a)

    state that the officer giving the notice believes that the notice is required:

    (i) to determine whether to take any action under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division; or

    1. (ii)

      in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division;

(as the case requires); and

  1. (b)

    specify the name of the financial institution; and

  2. (c)

    specify the kind of information or documents required to be provided; and

  3. (d)

    specify the form and manner in which that information or those documents are to be provided; and

  4. (e)

    state that the information or documents must be provided within 14 days of the notice; and

  5. (f)

    if the notice specifies that information about the notice must not be disclosed—set out the effect of section 34V (disclosing existence or nature of a notice); and

  6. (g)

    set out the effect of section 34W (failing to comply with a notice).

34TProtection from suits etc. for those complying with notices

  1. (1)

    No action, suit or proceeding lies against:

    1. (a)

      a financial institution; or

    2. (b)

      an officer, employee or agent of the institution acting in the course of that person’s employment or agency;

in relation to any action taken by the institution or person under a notice under section 34R or in the mistaken belief that action was required under the notice.

  1. (2)

    A financial institution, or person who is an officer, employee or agent of a financial institution, who provides information under a notice under section 34R is taken, for the purposes of Part 10.2 of the Criminal Code (offences relating to money‑laundering), not to have been in possession of that information at any time.

34UMaking false statements in applications

A person is guilty of an offence if:

  1. (a)

    the person makes a statement (whether orally, in a document or in any other way); and

  2. (b)

    the statement:

    (i) is false or misleading; or

    1. (ii)

      omits any matter or thing without which the statement is misleading; and

  3. (c)

    the statement is made in, or in connection with, a notice under section 34R.

Maximum penalty: Imprisonment for 12 months or 60 penalty units, or both.

34VDisclosing existence or nature of notice

A person is guilty of an offence if:

  1. (a)

    the person is given a notice under section 34R; and

  2. (b)

    the notice specifies that information about the notice must not be disclosed; and

  3. (c)

    the person discloses the existence or nature of the notice.

Maximum penalty: Imprisonment for 2 years or 120 penalty units, or both.

34WFailing to comply with a notice

A person is guilty of an offence if:

  1. (a)

    the person is given a notice under section 34R; and

  2. (b)

    the person fails to comply with the notice.

Maximum penalty: Imprisonment for 6 months or 30 penalty units, or both.

Note: Sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.

Subdivision E—Monitoring orders relating to foreign serious offences

34XRequests for monitoring orders

  1. (1)

    If:

    1. (a)

      a criminal proceeding or criminal investigation has commenced in a foreign country in respect of a foreign serious offence referred to in subsection (2); and

    2. (b)

      information about transactions conducted through an account with a financial institution in Australia is reasonably suspected of being relevant to the proceeding or investigation; and

    3. (c)

      the foreign country requests the Attorney‑General to obtain the issue of an order directing the financial institution to give information about transactions conducted through the account;

the Attorney‑General may authorise an authorised officer of an enforcement agency to apply to a judge of a specified court for a monitoring order under the Proceeds of Crime Act in respect of the offence for the purpose of obtaining the information requested by the foreign country.

  1. (2)

    These are foreign serious offences to which paragraph (1)(a) applies:

    1. (a)

      an offence punishable by imprisonment for 3 or more years that:

      (i) involves unlawful conduct relating to a narcotic substance; or

      1. (ii)

        is a money laundering offence; or

      2. (iii)

        involves 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

      3. (iv)

        involves unlawful conduct by a person that causes, or is intended to cause, a loss to the foreign country in question or another person of at least $10,000;

    2. (b)

      an offence involving the smuggling of migrants;

    3. (c)

      an offence involving failure to report financial transactions;

    4. (d)

      an ancillary offence in respect of an offence referred to in paragraph (a), (b) or (c).

  2. (3)

    The court specified must be a court of a State or Territory that has jurisdiction to deal with criminal matters on indictment.

34YApplying for and making monitoring orders

  1. (1)

    If so authorised, the authorised officer may apply for such a monitoring order against that property in respect of the offence.

  1. Repeal the definition, substitute:

    proceeds of crime legislation means:

    1. (a)

      the Proceeds of Crime Act 1987; or

    2. (b)

      the Proceeds of Crime Act 2002; or

    3. (c)

      a law of a State that is a corresponding law within the meaning of the Proceeds of Crime Act 2002.

Taxation Administration Act 1953

44

Subsection 3E(10)

Omit “(within the meaning of section 5 of the Proceeds of Crime Act 1987)”, substitute “(within the meaning of section 331 of the Proceeds of Crime Act 2002)”.

45

Subsection 3E(11) (definition of proceeds of crime order)

Repeal the definition, substitute:

proceeds of crime order means an order, relating to a person’s commission of a serious offence, under:

  1. (a)

    Chapter 2 or Division 1 of Part 3‑1 of the Proceeds of Crime Act 2002; or

  2. (b)

    Part II or III of the Proceeds of Crime Act 1987; or

  3. (c)

    a law of a State or Territory corresponding to paragraph (a) or (b); or

  4. (d)

    Division 3 of Part XIII of the Customs Act 1901.

Telecommunications (Interception) Act 1979

46

Subparagraph 6K(c)(i)

Repeal the subparagraph, substitute:

(i) the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002”.

47

Paragraph 6L(2)(a)

Repeal the paragraph, substitute:

  1. (a)

    in the case of the Authority—a reference to:

    (i) a proceeding by way of a prosecution for a prescribed offence to which a prescribed investigation relates or related; or

    1. (ii)

      a proceeding under a law of the Commonwealth or a State for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence to which a prescribed investigation relates or related; or

Trade Marks Act 1995

  1. 48

    Subsection 159(2) (at the end of the definition of forfeiture order provision)

    Add:

    1. ; and (c)

      Part 2‑2 of the Proceeds of Crime Act 2002; and

    2. (d)

      Part 2‑3 of the Proceeds of Crime Act 2002.

    Note: The heading to section 159 is altered by omitting “Proceeds of Crime Act 1987” and substituting “proceeds of crime legislation”.

Witness Protection Act 1994

49

Subsection 23(2)

After “Proceeds of Crime Act 1987,” insert “the Proceeds of Crime Act 2002,”.

Schedule 7—Transitional and related matters

Part 1Application of the Proceeds of Crime Act 1987

Proceeds of Crime Act 1987

1

Subsection 4(1)

Insert:

commencement of the Proceeds of Crime Act 2002 means the commencement of sections 3 to 338 of the Proceeds of Crime Act 2002.

2

Subsection 14(2)

Repeal the subsection, substitute:

  1. (2)

    The DPP:

    1. (a)

      is not empowered to make an application after the end of the relevant application period in relation to the conviction; and

    2. (b)

      is not empowered to make an application after the commencement of the Proceeds of Crime Act 2002 unless some or all of the property which could be used to satisfy the order is property in respect of which a restraining order is in force.

3

After subsection 22(1)

Insert:

  1. (1A)

    This section does not apply if the conviction is quashed after the commencement of the Proceeds of Crime Act 2002.

    Note: Division 6 of Part 2‑2 of the Proceeds of Crime Act 2002 applies in relation to convictions quashed after that commencement: see subitem 21(1) of Schedule 7 to the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002.

4

Paragraph 30(1)(b)

Before “a restraining order”, insert “before the commencement of the Proceeds of Crime Act 2002,”.

5

After subsection 32(1)

Insert:

  1. (1A)

    This section does not apply if the conviction is quashed after the commencement of the Proceeds of Crime Act 2002.

    Note: Division 4 of Part 2‑3 of the Proceeds of Crime Act 2002 applies in relation to convictions quashed after that commencement: see subitem 21(2) of Schedule 7 to the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002.

6

After subsection 35(2)

Insert:

  1. (2A)

    A police officer is not empowered to do anything under this section after the commencement of the Proceeds of Crime Act 2002 unless it is done under a warrant issued under section 36 of this Act for which an application was made under that section before that commencement.

7

After subsection 43(2)

Insert:

  1. (2A)

    The DPP is not empowered to make an application under this section after the commencement of the Proceeds of Crime Act 2002.

8

Paragraph 57(2)(d)

Repeal the paragraph, substitute:

  1. (d)

    if, within the relevant period in relation to the restraining order, the person is acquitted of the charge and the person is not charged with a related indictable offence by the time of the acquittal, the restraining order ceases to be in force:

    (i) in a case where the acquittal occurs after the commencement of the Proceeds of Crime Act 2002—at the end of the period of 28 days after the day of the acquittal; or

    1. (ii)

      otherwise—when the acquittal occurs;

    Note: After the commencement of the Proceeds of Crime Act 2002, an application can be made under that Act (but not section 17) for a restraining order in relation to the offence, despite the acquittal.

9

After subsection 66(1)

Insert:

  1. (1A)

    A police officer is not empowered to make an application under this section after the commencement of the Proceeds of Crime Act 2002.

10

At the end of section 70

Add:

  1. (2)

    A police officer is not empowered to do anything under this section after the commencement of the Proceeds of Crime Act 2002 unless it is done under a search warrant issued under section 71 of this Act for which an application was made under that section before that commencement.

11

After subsection 73(1)

Insert:

  1. (1A)

    A police officer is not empowered to make an application under this section after the commencement of the Proceeds of Crime Act 2002.

12

Subsection 86(1)

After “interstate restraining order”, insert “made before the commencement of the Proceeds of Crime Act 2002”.

13

Subsection 92(1)

After “interstate forfeiture order”, insert “made before the commencement of the Proceeds of Crime Act 2002”.

14

Effect on existing applications and orders

The amendments made by this Part of this Schedule do not affect:

  1. (a)

    applications made under the Proceeds of Crime Act 1987 before the commencement of the Proceeds of Crime Act 2002; or

  2. (b)

    orders made, or warrants or search warrants issued, under the Proceeds of Crime Act 1987 before or after that commencement.

15

Use of property etc. for purposes of the Proceeds of Crime Act 2002

To avoid doubt, the fact that property, documents or information have:

  1. (a)

    been seized or otherwise obtained under the Proceeds of Crime Act 1987; or

  2. (b)

    been obtained as a direct or indirect result of action taken under that Act;

does not prevent the property, documents or information being used for the purposes of the Proceeds of Crime Act 2002.

16

Obligations of financial institutions

Despite the repeal of Division 4 of Part IV of the Proceeds of Crime Act 1987 by Schedule 3 to this Act:

  1. (a)

    that Division continues to apply in relation to any document in relation to which it applied immediately before the commencement of sections 3 to 338 of the Proceeds of Crime Act 2002; and

  2. (b)

    Part VIA of the Financial Transaction Reports Act 1988 does not apply to any such document.

Part 2Application of the Proceeds of Crime Act 2002
  1. 17

    References to the commencement of the Proceeds of Crime Act 2002

    References in this Part to the commencement of the Proceeds of Crime Act 2002 are taken to be references to the commencement of sections 3 to 338 of the Proceeds of Crime Act 2002.

  2. 18

    Offences committed before the commencement of the Proceeds of Crime Act 2002

    (1) An order made under Chapter 2 of the Proceeds of Crime Act 2002 may, subject to this Part, relate to an offence committed before the commencement of that Act.

    (2) However, property cannot be forfeited under Part 2‑3 of the Proceeds of Crime Act 2002 in relation to an offence of which a person is convicted before the commencement of that Act.

19

Applying for restraining orders

(1) The DPP must not apply for a restraining order under Part 2‑1 of the Proceeds of Crime Act 2002 covering property in respect of an offence if:

  1. (a)

    an application has been made under section 43 of the Proceeds of Crime Act 1987 for an order in respect of some or all of the property in respect of the offence; and

  2. (b)

    the application under section 43 of that Act is still pending.

(2) The DPP must not apply for a restraining order under section 17 of the Proceeds of Crime Act 2002 covering property in respect of an offence if an application under section 43 of the Proceeds of Crime Act 1987 for an order in respect of some or all of the property in respect of the offence has been refused.

(3) The fact that an application has been made under section 43 of the Proceeds of Crime Act 1987 for an order does not in any other case prevent the DPP applying for a restraining order under Part 2‑1 of the Proceeds of Crime Act 2002.

20

Applying for forfeiture orders

(1) The DPP must not apply for a forfeiture order under Part 2‑2 of the Proceeds of Crime Act 2002 covering property in respect of an offence if:

  1. (a)

    an application has been made under section 14 of the Proceeds of Crime Act 1987 for an order for the forfeiture of some or all of the property in respect of the offence; and

  2. (b)

    the application under section 14 of that Act is still pending.

(2) The DPP must not apply for a forfeiture order under section 48 of the Proceeds of Crime Act 2002 covering property in respect of an offence if an application under section 14 of the Proceeds of Crime Act 1987 for the forfeiture of some or all of the property in respect of the offence has been refused.

(3) The fact that an application has been made under section 14 of the Proceeds of Crime Act 1987 for an order for the forfeiture of property in respect of an offence does not in any other case prevent the DPP applying for a forfeiture order under Part 2‑2 of the Proceeds of Crime Act 2002 covering property in respect of the offence.

21

The effect on forfeiture under the Proceeds of Crime Act 1987 of convictions being quashed

(1) If:

  1. (a)

    before or after the commencement of the Proceeds of Crime Act 2002, an order was made under Division 2 of Part II of the Proceeds of Crime Act 1987, in relation to a person’s conviction of an offence, for the forfeiture of property; and

  2. (b)

    after the commencement of the Proceeds of Crime Act 2002, the conviction is subsequently quashed;

Division 6 of Part 2‑2 of the Proceeds of Crime Act 2002 applies in relation to the order in the same way that it would apply if the order had been made under Part 2‑2 of the Proceeds of Crime Act 2002.

(2) If:

  1. (a)

    before or after the commencement of the Proceeds of Crime Act 2002, property was forfeited under section 30 of the Proceeds of Crime Act 1987 in relation to a person’s conviction of an offence; and

  2. (b)

    after the commencement of the Proceeds of Crime Act 2002, the conviction is subsequently quashed;

Division 4 of Part 2‑3 of the Proceeds of Crime Act 2002 applies in relation to the forfeiture in the same way that it would apply if the property had been forfeited under Part 2‑3 of the Proceeds of Crime Act 2002.

22

Applying for pecuniary penalty orders

(1) The DPP must not apply for a pecuniary penalty order under Part 2‑4 of the Proceeds of Crime Act 2002 in respect of an offence if:

  1. (a)

    an application has been made under section 14 of the Proceeds of Crime Act 1987 for an order for the payment of a pecuniary penalty in respect of the offence; and

  2. (b)

    the application under section 14 of that Act is still pending.

(2) The DPP must not apply for a pecuniary penalty order under section 116 of the Proceeds of Crime Act 2002 covering property in respect of an offence if:

  1. (a)

    the application is made on the ground that a person has been convicted of the offence; and

  2. (b)

    an application under section 14 of the Proceeds of Crime Act 1987 for an order for the payment of a pecuniary penalty in respect of the offence has been refused.

(3) The fact that an application has been made under section 14 of the Proceeds of Crime Act 1987 for an order for the payment of a pecuniary penalty in respect of the offence does not in any other case prevent the DPP applying for a pecuniary penalty order under Part 2‑4 of the Proceeds of Crime Act 2002 in respect of the offence.

23

The effect on pecuniary penalty orders under the Proceeds of Crime Act 1987 of convictions being quashed

If:

  1. (a)

    before or after the commencement of the Proceeds of Crime Act 2002, an order was made under section 26 of the Proceeds of Crime Act 1987 in relation to a person’s conviction of an offence; and

  2. (b)

    after the commencement of the Proceeds of Crime Act 2002, the conviction is subsequently quashed;

Division 5 of Part 2‑4 of the Proceeds of Crime Act 2002 applies in relation to the order in the same way that it would apply if the order had been made under Division 1 of that Part.

24

Registering interstate restraining orders

Division 1 of Part 4‑5 of the Proceeds of Crime Act 2002 does not apply in relation to an interstate restraining order that has been registered under Division 1 of Part VI of the Proceeds of Crime Act 1987.

25

Registering interstate forfeiture orders

Division 2 of Part 4‑5 of the Proceeds of Crime Act 2002 does not apply in relation to an interstate forfeiture order that has been registered under Division 2 of Part VI of the Proceeds of Crime Act 1987.

26

Continued application of regulations made under the Proceeds of Crime Act 1987

If:

  1. (a)

    immediately after the commencement of the Proceeds of Crime Act 2002, regulations for the purposes of a provision of the Proceeds of Crime Act 2002 specified in an item of the second column of the following table are not in force; and

  2. (b)

    immediately before that commencement, regulations for the purposes of a provision of the Proceeds of Crime Act 1987 specified in a corresponding item of the second column of the following table were in force;

the Proceeds of Crime Act 2002 has effect, until regulations for the purposes of that provision of the Proceeds of Crime Act 2002 come into force, as if the regulations referred to in paragraph (b) were regulations for the purposes of that provision.

Continued application of regulations

Item

Provisions of the Proceeds of Crime Act 2002

Corresponding provisions of the Proceeds of Crime Act 1987

1.

Subsection 144(1)

Subsection 98(5)

2.

Subsection 144(2)

Subsection 98(5A)

3.

Subsection 288(1)

Subsection 55(1)

4.

Subsection 288(2)

Subsection 55(2)

5.

Subsection 296(2)

Subsection 34B(2)

6.

Paragraph 297(1)(f)

Subparagraph 34C(1)(a)(iv)

7.

Paragraph 297(2)(a)

Definition of suspended funds in subsection 4(1)

8.

Paragraph 299(7)(a)

Definition of distributable funds in subsection 4(1)

9.

Definition of appropriate officer in section 338

Definition of appropriate officer in subsection 4(1)

10.

Definition of corresponding law in section 338

Definition of corresponding law in subsection 4(1)

11.

Definition of interstate forfeiture order in section 338

Definition of interstate forfeiture order in subsection 4(1)

12.

Definition of interstate pecuniary penalty order in section 338

Definition of interstate pecuniary penalty order in subsection 4(1)

13.

Definition of interstate restraining order in section 338

Definition of interstate restraining order in subsection 4(1)

14.

Paragraph (b) of the definition of narcotic substance in section 338

Paragraph (b) of the definition of narcotic substance in subsection 4(1)

[Minister’s second reading speech made in—

House of Representatives on 13 March 2002

Senate on 20 August 2002]

(77/02)

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