Proceeds of Crime Amendment Regulations 2003 (No. 1) 2003 No. 55
EXPLANATORY STATEMENT
Statutory Rules 2003 No. 55
Issued by the authority of the Minister for Justice and Customs
Proceeds of Crime Act 1987
Proceeds of Crime Amendment Regulations 2003 (No. 1)
Section 104 of the Proceeds of Crime Act 1987 (the Act) provides that the Governor-General may make regulations not inconsistent with the Act.
The Act establishes a conviction based confiscation regime. The Official Trustee in Bankruptcy ("Official Trustee") is responsible under the Act for looking after, and where necessary selling off, restrained and forfeited property.
Section 55 of the Act provides that the Regulations may make provision for the payment of the Official Trustee's remuneration in respect of the Official Trustee's powers, duties and functions under that Act. The pre-existing Regulation 8 of the Proceeds of Crime Regulations 1987 provided for the Official Trustee's remuneration by reference to provisions in Regulation 16.07 of the Bankruptcy Regulations 1996 ("Bankruptcy Regulations").
Regulation 16.07 of the Bankruptcy Regulations was amended by item 22 of the Bankruptcy Amendment Regulations 2002 (which commenced on 6 November 2002). Equivalent provisions are now located in Regulation 16.07C(3) of the Bankruptcy Regulations.
The effect of the amendment to the Bankruptcy Regulations was that Regulation 8 of the Proceeds of Crime Regulations 1987 no longer prescribed the remuneration of the Official Trustee. The Proceeds of Crime Amendment Regulations 2002 (No. 1) remedied this unintended effect on Regulation 8 by replacing the reference in Regulation 8 Proceeds of Crime Amendment Regulations 1987 to Regulation 16.07 of the Bankruptcy Regulations with Regulation 16.07C(3).
Regulation 8 of the Proceeds of Crime Regulations 1987 now provides for the Official Trustee's remuneration in respect of the performance or exercise of functions, duties or powers under the Proceeds Act by reference to the hourly rates provided in Regulation 16.07C(3) of the Bankruptcy Regulations. The provisions in Regulation 16.07C correspond to those in repealed Regulation 16.07.
The Bankruptcy Amendment Regulations 2002 (No. 1) commenced on 6 November 2002. The Proceeds of Crime Amendment Regulations 2002 (No. 1) commenced on 19 December 2002. Consequently there was a period of six weeks in which no remuneration for the Official Trustee was prescribed. The Proceeds of Crime Amendment Regulations 2003 will amend the Proceeds of Crime Amendment Regulations 2002 (No. 1) so that it commences on 6 November 2002 thereby overcoming a technical oversight and ensuring that there is a continuous prescription of the remuneration for the Official Trustee under the Proceeds of Crime Act 1987.
The retrospective nature of the Regulations is acceptable because it will not disadvantage any other person. The Regulations therefore satisfy section 48(2) of the Acts Interpretation Act 1901, and may be validly made with retrospective effect.
The Proceeds of Crime Act 2002 commenced on 1 January 2003. The Proceeds of Crime Act 1987 remains in force until existing prosecutions under it have been finalised. The transitional provisions in Schedule 7 of the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 do not affect the regulation making power under the Proceeds of Crime Act 1987.
Authority: section 104 of the Proceeds of Crime Act 1987
Overview
The Proceeds of Crime Amendment Regulations 2003 (No. 1) were enacted in 2003 by the Minister for Justice and Customs to address a technical oversight in the remuneration of the Official Trustee in Bankruptcy under the Proceeds of Crime Act 1987. The original regulation, Regulation 8 of the Proceeds of Crime Regulations 1987, became inconsistent with the updated Bankruptcy Regulations, leading to an unintended gap in the remuneration prescribed for the Official Trustee during a six-week period. The new regulations amend the Proceeds of Crime Amendment Regulations 2002 (No. 1) to ensure continuous prescription of the Official Trustee's remuneration by aligning it with the updated hourly rates in Regulation 16.07C(3) of the Bankruptcy Regulations, thereby maintaining the effectiveness of the confiscation regime established by the Act.
Scope and Application
The Proceeds of Crime Amendment Regulations 2003 (No. 1) amend the Proceeds of Crime Regulations 1987, which were made under the Proceeds of Crime Act 1987. This Act establishes a conviction-based confiscation regime in Australia, targeting the proceeds derived from criminal activities. The regulations apply to the Official Trustee in Bankruptcy, who is responsible for managing, including selling, restrained and forfeited property under the Act. The amendment rectifies an oversight in remuneration provisions for the Official Trustee following changes to the Bankruptcy Regulations 2002. The regulation ensures continuous prescription of remuneration for the Official Trustee by backdating its commencement to 6 November 2002, aligning with the effective date of the related Bankruptcy Amendment Regulations 2002. This adjustment addresses a six-week gap in remuneration prescription, ensuring uninterrupted service by the Official Trustee. The retrospective effect of these regulations does not disadvantage any party, aligning with the provisions of the Acts Interpretation Act 1901.
Key Provisions
The Proceeds of Crime Amendment Regulations 2003 (No. 1) amend the existing Proceeds of Crime Regulations 1987, specifically addressing the remuneration of the Official Trustee in Bankruptcy (section 55). Regulation 8 of the original regulations, which outlined the remuneration of the Official Trustee by referencing the Bankruptcy Regulations, was inadvertently affected by amendments to the Bankruptcy Regulations in 2002. This oversight resulted in a six-week period without prescribed remuneration for the Official Trustee. The 2003 Amendment Regulations correct this by aligning Regulation 8 with the new provisions in Regulation 16.07C(3) of the Bankruptcy Regulations, ensuring that the remuneration is continuously prescribed under the Proceeds of Crime Act 1987.
Under the amended regulations, the Official Trustee's remuneration is to be calculated based on the hourly rates specified in Regulation 16.07C(3) of the Bankruptcy Regulations. This change ensures that the Official Trustee, who is responsible for managing and disposing of restrained and forfeited property under the Act, is fairly compensated for their duties. The regulations mandate that the remuneration be paid for the performance or exercise of functions, duties, or powers under the Act, thereby maintaining the integrity and functionality of the conviction-based confiscation regime.
The parties and entities governed by these regulations, particularly the Official Trustee in Bankruptcy, have the obligation to ensure they are compensated according to the prescribed rates. This requirement is essential to avoid any operational disruptions or financial implications for the Official Trustee, who plays a critical role in the confiscation process. The regulations also impose a duty on the relevant authorities to update and align the remuneration provisions with any changes in the referenced Bankruptcy Regulations to prevent similar oversights in the future.
The failure to comply with the remuneration provisions as outlined in the amended regulations may have legal consequences. Although specific offences or penalties are not detailed in the explanatory statement, breaches of regulations related to remuneration could potentially lead to disputes or legal actions concerning the validity of payments made to the Official Trustee. The regulations are designed to ensure that there is no gap in the remuneration provision, thereby avoiding any legal or operational complications for the Official Trustee or the confiscation process.