Proceeds of Crime Regulations (Amendment) 1997 No. 110
EXPLANATORY STATEMENT
Statutory Rules 1997 No. 110
Issued by the Authority of the Attorney-General and Minister for Justice
Proceeds of Crime Act 1987
Proceeds of Crime Regulations (Amendment)
Background
Section 104 of the Proceeds of Crime Act 1987 provides that the Governor-General may make regulations for the purposes of the Act.
Purpose
The purpose of the amendments is to enable proceeds that have been forfeited to the Commonwealth to be shared with a foreign country where that country has assisted in the investigation, and to enable the Commonwealth to accept from a foreign country proceeds that have been forfeited to that country where a Commonwealth agency has assisted in the investigation. Those sharing arrangements are intended to foster international co-operation in law enforcement. The second purpose of the amendments is to remove reference to prescribed law enforcement agencies. That reference is removed because funds which were formerly provided from the Confiscated Assets Trust Fund to law enforcement projects, will now be paid into the Consolidated Revenue Fund.
Background
The Proceeds of Crime Regulations (Amendment) amends the regulations to add reference to money paid into and money paid out of the Confiscated Assets Trust Fund in connection with sharing recoveries of proceeds of crime.
The value of proceeds forfeited to the Commonwealth may be shared with the government of a foreign country where an agency of that country (for example, its police force) has contributed significantly to the investigation which led to conviction and consequent forfeiture of proceeds to the Commonwealth. The amounts shared reflect the Commonwealth Attorney-General's view of the degree or the importance of the participation by the various agencies. The Commonwealth is also able to accept payments from a foreign country where an Australian agency has contributed to the investigation which led to the forfeiture of proceeds to that foreign country.
The regulations are also amended to remove references to law enforcement projects and prescribed law enforcement agencies, consequent upon the amendment of the Act removing reference to the distribution of funds from the Confiscated Assets Trust Fund to fund law enforcement projects. Those funds will now be paid into the Consolidated Revenue Fund.
The Amendments
Regulation 1 is a procedural clause. The Regulations commence on gazettal.
Regulation 2 amends Proceeds of Crime Regulation 3A, which sets out moneys that are paid into the Confiscated Assets Trust Fund. A reference to money paid to Australia by a foreign country in connection with assistance provided by the Commonwealth in relation to that foreign country recovering proceeds of unlawful activity or the investigation or prosecution of unlawful activity is added to Regulation 3A.
Subregulation 3.1 amends regulation 15 of the Proceeds of Crime Regulations. The matters to be taken into account by the Attorney-General in making a determination of the amount of funds available for payment into the Consolidated Revenue Fund is amended by adding to those matters, an amount payable to a foreign country. That amount refers to an amount which may be paid by Australia to a foreign country where that country has assisted in the recovery of proceeds of unlawful activity or the investigation or prosecution of unlawful activity.
Subregulation 3.2 removes subregulation 15(2). That subregulation required the AttorneyGeneral to make the first determination of the amount of funds available no later than 12 months after the regulations commenced. That subregulation is now spent.
Regulation 4 removes Proceeds of Crime Regulation 16, which formerly prescribed law enforcement agencies which were eligible to receive funding from the Confiscated Assets Trust Fund for law enforcement projects.
Overview
The Proceeds of Crime Regulations (Amendment) 1997, issued under the authority of the Attorney-General and Minister for Justice, amends the regulations made pursuant to the Proceeds of Crime Act 1987. The primary aim of these amendments is to facilitate the sharing of proceeds forfeited to the Commonwealth with foreign countries that have significantly contributed to investigations leading to the conviction and forfeiture, thus promoting international cooperation in law enforcement. Additionally, these regulations allow the Commonwealth to accept proceeds from foreign countries when Australian agencies have contributed to investigations resulting in forfeitures in those countries. Another objective of these amendments is to remove references to law enforcement projects and prescribed law enforcement agencies, reflecting the shift in the allocation of funds from the Confiscated Assets Trust Fund to the Consolidated Revenue Fund.
These amendments to the regulations ensure that funds derived from forfeited proceeds can be appropriately shared with international partners, thereby strengthening collaborative efforts against criminal activities. By removing outdated references to specific law enforcement funding, the amendments streamline the regulatory framework to align with current practices in the allocation of forfeited assets.
Scope and Application
The Proceeds of Crime Regulations (Amendment) 1997, made under the Proceeds of Crime Act 1987, aims to facilitate the sharing of forfeited proceeds with foreign countries that have significantly contributed to investigations leading to the forfeiture of proceeds in Australia. These amendments allow the Commonwealth to both share its forfeited proceeds with foreign countries and accept forfeited proceeds from foreign countries where Australian agencies have contributed to the investigation. This international cooperation is intended to enhance law enforcement efforts. The amendments also remove references to prescribed law enforcement agencies and projects, as funds previously allocated from the Confiscated Assets Trust Fund for these purposes will now be directed into the Consolidated Revenue Fund. The application of these regulations is governed by the Act and extends to entities and persons involved in the forfeiture and distribution of proceeds of crime, with specific provisions for the sharing of funds between Australia and foreign jurisdictions. The amendments do not specify any exclusions or thresholds but are subject to the Attorney-General's discretion in determining the amounts to be shared with foreign countries.
Key Provisions
The main operative sections of the Proceeds of Crime Regulations (Amendment) 1997 No. 110 are Regulation 2, Subregulation 3.1, and Regulation 4. Regulation 2 amends Proceeds of Crime Regulation 3A to include money paid to Australia by a foreign country in connection with assistance provided by the Commonwealth in relation to recovering proceeds of unlawful activity. Subregulation 3.1 amends regulation 15 to allow the Attorney-General to consider an amount payable to a foreign country when determining funds available for payment into the Consolidated Revenue Fund. Regulation 4 removes regulation 16, which previously prescribed law enforcement agencies eligible for funding from the Confiscated Assets Trust Fund.
The Act imposes several obligations and requirements on parties involved in the sharing of proceeds of crime. Firstly, it requires that the Commonwealth Attorney-General assess the degree or importance of the participation of foreign agencies in the investigation leading to the conviction and forfeiture of proceeds. The Attorney-General must then determine the appropriate amount of funds to be shared with the assisting country. Additionally, the Act requires the Commonwealth to accept payments from foreign countries where Australian agencies have contributed to the investigation and forfeiture of proceeds to those countries. The Act also mandates that funds formerly provided from the Confiscated Assets Trust Fund to law enforcement projects be paid into the Consolidated Revenue Fund.
The amendments also introduce potential consequences for non-compliance. While specific offences and penalties are not detailed within the Explanatory Statement, breaches of the regulations could potentially lead to civil or criminal consequences under the broader Proceeds of Crime Act 1987. The Act provides for a range of penalties, including fines and imprisonment, for offences related to the misuse of forfeited proceeds or failure to comply with regulatory requirements. The maximum penalties depend on the nature and severity of the offence, as outlined in the principal Act.
The amendments to the Proceeds of Crime Regulations aim to foster international cooperation in law enforcement by facilitating the sharing of proceeds of crime between the Commonwealth and foreign countries. By allowing for the distribution of forfeited proceeds based on the contribution of foreign agencies to investigations, the regulations seek to encourage collaborative efforts in combating unlawful activities. The removal of references to law enforcement projects and prescribed law enforcement agencies reflects the re-allocation of funds from the Confiscated Assets Trust Fund to the Consolidated Revenue Fund, aligning with broader policy changes in the administration of forfeited assets.