Proceeds of Crime Amendment Regulations 1998 (No. 1)

Administered by Attorney-General's Department

Legislation au F1998B00352 Regulations Not in force Legislative Instrument

Legislation content

Proceeds of Crime Amendment Regulations 1998 (No. 1) 1998 No. 335

Explanatory Statement

Statutory Rules 1998 No. 335

Issued BY the Authority of the Minister for Justice and Customs

Proceeds of Crime Act 1987

Proceeds of Crime Amendment Regulations 1998 (No. 1)

Background

The Proceeds of Crime Regulations (the Regulations) contain references to corresponding State and Territory forfeiture legislation. The Regulations currently refer to, amongst other statutes, the Drug Trafficking (Civil Proceedings) Act 1990 (NSW) and the Crimes (Confiscation of Profits) Act 1986 (Vic).

Those two Acts have recently been amended by their respective State legislatures. The NSW Act has been amended and its title changed to the Criminal Assets Recovery Act 1990 (NSW). The Crimes (Confiscation of Profits) Act 1986 (Vic) has been repealed and replaced by the Confiscation Act 1997 (Vic).

Consequential amendments to the Regulations are therefore made to take account of those amendments to the New South Wales and Victorian statutes. Transitional regulations are made in respect of the former Victorian Act to ensure the continuing validity of orders made under the repealed statute. Transitional regulations are not required in respect of the NSW Act.

The Amendments

Regulation 1 is a formal clause providing for the citation of these amending regulations.

Regulation 2 provides that these regulations commenced upon gazettal.

Regulation 3 is also a formal clause providing for amendment of the Regulations as set out in Schedule 1 to the amending regulations.

Schedule 1 Amendments

Item 1 deletes Regulation 1 and amends the citation of the Regulations to the Proceeds of Crime Regulations 1987. That new title of the Regulations reflects a revised approach to the naming of Commonwealth regulations.

Definition of "corresponding law" - regulation 3

Item 2 replaces paragraph 3(aa) of the Regulations with new paragraph 3(a) which prescribes the Criminal Assets Recovery Act 1990 (NSW) as a corresponding law for the purposes of subsection 4(1) of the Proceeds of Crime Act 1987 (the PoC Act).

Item 3 replaces paragraph 3 (c) of the Regulations with new paragraph 3 (c) which prescribes the Confiscation Act 1997 (Vic) as a corresponding law for the purposes of subsection 4(1) of the PoC Act.

Definition of "interstate forfeiture order" - regulation 4

Item 4 replaces paragraph 4(aa) of the Regulations with new paragraph 4(a) to include assets forfeiture orders under section 22 of the Criminal Assets Recovery Act 1990 (NSW) as interstate forfeiture orders for the purposes of subsection 4(1) of the PoC Act.

Item 5 replaces paragraph 4(c) of the Regulations with new paragraph 4(c) to include forfeiture orders under Division 1 of Part 3, and civil forfeiture orders under Part 4, of the Confiscation Act 1997 (Vic) as interstate forfeiture orders for the purposes of subsection 4(1) of the PoC Act.

Item 5 also inserts paragraph 4(ca) as a transitional provision which ensures that forfeiture orders made pursuant to the repealed subsection 7(1) of the Crimes (Confiscation of Profits) Act 1986 (Vic) continue to have effect.

Definition of "interstate pecuniary penalty order" - regulation 5

Item 6 replaces paragraph 5(aa) of the Regulations with new paragraph 5(a) which provides that proceeds assessment orders under section 27 of the Criminal Assets Recovery Act 1990 (NSW) are interstate pecuniary penalty orders for the purposes of subsection 4(1) of the PoC Act.

Item 7 replaces paragraph 5(c) of the Regulations with new paragraph 5(c) which provides that pecuniary penalty orders under Part 8 of the Confiscation Act 1997 (Vic) are interstate pecuniary penalty orders for the purposes of subsection 4(1) of the PoC Act.

Item 7 also inserts new paragraph 5(ca) as a transitional provision which ensures that pecuniary penalty orders made pursuant to subsection 12(1) of the Crimes Confiscation of Profits Act 1986 (Vic) continue to have effect.

Definition of "interstate restraining order" - regulation 6

Item 8 replaces paragraph 6(aa) of the Regulations with new paragraph 6(a) which provides that restraining orders under section 10 of the Criminal Assets Recovery Act 1990 (NSW) are interstate restraining orders for the purposes of subsection 4(1) of the PoC Act.

Item 9 replaces paragraph 6(c) of the Regulations with new paragraph 6(c) which provides that restraining orders under section 18 of the Confiscation Act 1997 (Vic) are interstate rest-dining orders for the purposes of subsection 4(1) of the PoC Act.

Items 9 also inserts new paragraph 6(ca) as a transitional provision which ensures that restraining orders made pursuant to subsection 16(3) of the Crimes (Confiscation of Profits) Act 1986 (Vic) continue to have effect for the purposes of subsection 4(1) of the PoC Act.

The Regulations commenced on gazettal.

 

Overview

The Proceeds of Crime Amendment Regulations 1998 (No. 1) were enacted to address the issue of outdated references in the Proceeds of Crime Regulations 1987, resulting from amendments and repeals of corresponding state and territory legislation. This legislative amendment was necessary to ensure that the Commonwealth regulations remained consistent with the evolving legal frameworks in New South Wales and Victoria. The Minister for Justice and Customs issued these regulations under the authority granted by the Proceeds of Crime Act 1987. The policy objective of these amendments is to maintain the integrity and effectiveness of the Commonwealth's proceeds of crime framework by aligning it with the current state laws on asset forfeiture and related measures. The transitional provisions ensure that orders made under the repealed Victorian statute continue to have legal effect, thereby providing continuity in the enforcement of forfeiture and penalty orders across jurisdictions.

Scope and Application

The Proceeds of Crime Amendment Regulations 1998 (No. 1) serves to update and align the existing Proceeds of Crime Regulations 1987 with recent amendments to state and territory laws concerning confiscation of assets and proceeds of crime. Specifically, these regulations address the changes in New South Wales, where the Drug Trafficking (Civil Proceedings) Act 1990 has been renamed the Criminal Assets Recovery Act 1990, and in Victoria, where the Crimes (Confiscation of Profits) Act 1986 has been repealed and replaced by the Confiscation Act 1997. The amendments ensure that the Regulations continue to correctly reference the corresponding state and territory laws, facilitating the enforcement of forfeiture, penalty, and restraining orders across jurisdictional boundaries. These amendments are essential to maintain the efficacy and continuity of legal proceedings under the Commonwealth’s Proceeds of Crime Act 1987. Transitional provisions have been included to preserve the validity of orders made under the repealed Victorian Act, ensuring that existing legal frameworks are not disrupted by the legislative changes.

Key Provisions

The main operative sections of the Proceeds of Crime Amendment Regulations 1998 (No. 1) involve amendments to the existing Proceeds of Crime Regulations 1987 (Regulations) to align with recent changes in state legislation, specifically in New South Wales and Victoria. Regulation 1 cites the amendment regulations, Regulation 2 confirms the commencement of these regulations upon gazettal, and Regulation 3 details the amendments set out in Schedule 1. The Schedule 1 amendments involve updating references to the Criminal Assets Recovery Act 1990 (NSW) and the Confiscation Act 1997 (Vic) to replace outdated references to the Drug Trafficking (Civil Proceedings) Act 1990 (NSW) and the Crimes (Confiscation of Profits) Act 1986 (Vic). These amendments impose obligations on relevant authorities and entities to recognise and enforce the new definitions and orders under the updated state laws. Specifically, they require that the new acts and orders be treated as corresponding laws, interstate forfeiture orders, interstate pecuniary penalty orders, and interstate restraining orders under the Proceeds of Crime Act 1987 (PoC Act). Additionally, transitional provisions are included to ensure that any orders made under the repealed Victorian Act continue to be valid. The Regulations also outline the potential consequences for non-compliance. While the explanatory statement does not explicitly mention penalties for breaching the Regulations, the underlying Act, the Proceeds of Crime Act 1987, provides for both civil and criminal penalties. For example, under section 12 of the PoC Act, a person who contravenes the Act or Regulations may be subject to fines and imprisonment. The specific penalties depend on the nature and severity of the offence but can include substantial financial penalties and imprisonment terms that vary according to the specific provision breached. These provisions underscore the importance of adhering to the updated Regulations to avoid legal repercussions.

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Criminal Law
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