Proceeds of Crime Regulations (Amendment) 1993 No. 199
EXPLANATORY STATEMENT
STATUTORY RULES 1993 No. 199
Issued by the authority of the Attorney-General
Proceeds of Crime Act 1987
Proceeds of Crime Regulations (Amendment)
Section 104 of the Proceeds of Crime Act 1987 (the Act) provides that the Governor-General may make regulations for the purposes of the Act.
The purpose of the Proceeds of Crime Regulations (Amendment) is to:
(a) prescribe the Australian Capital Territory Proceeds of Crime Act 1991 (the ACT Act) and the New South Wales Drug Trafficking (Civil Proceedings) Act 1990 (the NSW Act) as corresponding laws under the Act and to recognise forfeiture orders, pecuniary penalty orders and restraining orders made under these Acts;
(b) update the list of Government Business Enterprises (GBEs) to take account of name changes and to delete the names of organisations which are no longer GBEs; and
(c) to clarify parts of the Regulations and change references which are no longer current.
The amending regulations provide as follows:
Clause 1 of the amending regulations is a procedural clause.
Clause 2 amends regulation 3 to provide that the ACT Act and the NSW Act are declared to be corresponding laws under the Act. Part VI of the Act provides for the enforcement of interstate forfeiture orders, pecuniary penalty orders and restraining orders in the nonself-governing Commonwealth Territories (the Australian Capital Territory and the Northern Territory are defined as Stated under the Act). These orders are defined as those made under corresponding laws and of a kind declared by the regulations to be within the definitions. Corresponding laws are in turn defined as laws declared by the regulations to be laws which correspond with the Act. The declaration of these Acts as corresponding laws allows enforcement in Commonwealth Territories of various orders made under these Acts. The declaration also allows New South Wales and the Australian Capital Territory to seek the enforcement of these orders outside Australia under the Mutual Assistance in Criminal Matters Act 1987 where mutual assistance arrangements are in place
Clause 3 amends regulation 3B which identifies those GBEs which may receive a payment from the Confiscated Assets Trust Fund under section 34C of the Act. The amendment deletes AUSSAT Pty Limited and the Snowy Mountains Engineering Corporation from the list as they are no longer GBEs (see section 6 of the AUSSAT Repeal Act 1991 and section 51 of the Snowy Mountains Engineering Corporation Act 1970). It also updates the regulations to reflect the correct names of the Australian
Postal Corporation and ANL Limited which were changed by the Australian Postal Corporation Act 1989 and the ANL (Conversion into Public Company) Act 1988 respectively.
Clause 4 amends regulation 4 to include forfeiture orders made under the ACT Act and asset forfeiture orders made under the NSW Act in the list of orders which fall within the Act's definition of "interstate forfeiture order". As discussed under clause 2 above this enables these orders to be enforced in the nonself-governing Commonwealth Territories and overseas where Mutual Assistance arrangements are in place.
Clause 5 amends regulation 5 to include pecuniary penalty orders made under the ACT Act and proceeds assessment orders made under the NSW Act in the list of orders which fall within the Act's definition of "interstate pecuniary penalty order". the non-self governing As discussed under clause 2 above, this enables these orders to be enforced in Commonwealth Territories and overseas where Mutual Assistance arrangements are in place.
Clause 6 amends regulation 6 to include restraining orders made under the ACT Act and the NSW Act in the list of orders which fall within the Act's definition of "interstate restraining order". As discussed under clause 2 above, this enables these orders to be enforced in the nonself-governing Commonwealth Territories and overseas where Mutual Assistance arrangements are in place. The amending regulation also updates the numbering in paragraph 6(c).
Clause 7 amends regulation 8 to replace the reference in paragraph 8(1)(b) to "an Administrative Service Officer, Class 7 with a reference to "a Senior Officer, Grade C" to reflect a title change. Further, the amendment to subsection 8(2) ensures consistent terminology throughout the regulations.
Clause 8 amends regulation 11 to replace references to "that Act" in paragraph 11 (1) with "the Customs Act 1901". This avoids confusion over which Act the regulation is referring to.
Clause 9 amends regulation 16 to update the reference to the Cash Transactions Reports Agency to AUSTRAC to reflect changes made by the Cash Transaction Reports Amendment Act 1991.
Overview
The Proceeds of Crime Regulations (Amendment) 1993 was enacted by the Australian Parliament under the authority of the Attorney-General to amend the Proceeds of Crime Regulations 1990. This amendment responds to a gap in the law concerning the recognition and enforcement of certain forfeiture, penalty, and restraining orders made under the Australian Capital Territory Proceeds of Crime Act 1991 and the New South Wales Drug Trafficking (Civil Proceedings) Act 1990. By recognising these orders as corresponding laws under the Proceeds of Crime Act 1987, the amendment facilitates their enforcement within Commonwealth Territories and internationally where mutual assistance arrangements are in place. Additionally, the amendment updates the list of Government Business Enterprises eligible to receive payments from the Confiscated Assets Trust Fund and corrects outdated references within the regulations to ensure clarity and consistency. The policy objective is to enhance the effectiveness and coordination of the enforcement of proceeds of crime orders across jurisdictions.
Scope and Application
The Proceeds of Crime Regulations (Amendment) 1993 applies to the enforcement of certain orders under the Australian Capital Territory Proceeds of Crime Act 1991 and the New South Wales Drug Trafficking (Civil Proceedings) Act 1990. It extends to the enforcement of forfeiture, pecuniary penalty, and restraining orders made under these Acts within the Commonwealth Territories and internationally where mutual assistance arrangements are in place. The amendment specifically targets the updating of Government Business Enterprises that may receive payments from the Confiscated Assets Trust Fund, as well as the clarification and updating of terminology and references within the regulations. It does not specify any exclusions or exemptions from its application, and it extends the application of the regulations through subordinate instruments by recognising additional laws and orders for enforcement purposes.
Key Provisions
The key provisions of the Proceeds of Crime Regulations (Amendment) 1993 No. 199 are detailed in clauses 2 to 9, which amend various regulations to ensure the continued applicability and effectiveness of the Proceeds of Crime Act 1987 (the Act). Clause 2 declares the Australian Capital Territory Proceeds of Crime Act 1991 (the ACT Act) and the New South Wales Drug Trafficking (Civil Proceedings) Act 1990 (the NSW Act) as corresponding laws under the Act, allowing for the enforcement of forfeiture, pecuniary penalty, and restraining orders made under these Acts in the Australian Capital Territory and Northern Territory (clause 2). Clauses 3 to 6 update and clarify the lists of orders that fall within the definitions of "interstate forfeiture order", "interstate pecuniary penalty order", and "interstate restraining order", facilitating enforcement of these orders in the nonself-governing Commonwealth Territories and overseas where mutual assistance arrangements are in place (clauses 3, 4, 5, and 6). Clauses 7 and 8 make minor amendments to ensure consistency in terminology and to avoid confusion over which Act is being referenced (clauses 7 and 8). Clause 9 updates the reference to the Cash Transactions Reports Agency to AUSTRAC, reflecting changes made by the Cash Transaction Reports Amendment Act 1991 (clause 9).
The amendments impose specific obligations and requirements on the parties and entities governed by the Act. The Act requires that the Australian Capital Territory and New South Wales Acts be declared as corresponding laws, which allows for the enforcement of forfeiture, pecuniary penalty, and restraining orders made under these Acts in the nonself-governing Commonwealth Territories and overseas where mutual assistance arrangements are in place (regulation 3). Additionally, the Act requires that Government Business Enterprises (GBEs) that may receive payments from the Confiscated Assets Trust Fund be updated to reflect name changes and to remove organisations that are no longer GBEs (regulation 3B). The Act also requires that the lists of orders that fall within the definitions of "interstate forfeiture order", "interstate pecuniary penalty order", and "interstate restraining order" be updated and clarified to facilitate enforcement of these orders (regulations 4, 5, and 6). Finally, the Act requires that terminology throughout the regulations be consistent and that references to other Acts be clear and unambiguous (regulations 7, 8, and 9).
The Act does not explicitly state any offences, penalties, or civil/criminal consequences for breach of the provisions of the amending regulations. However, non-compliance with the requirements of the Act may result in legal action being taken against the parties or entities that fail to comply. In addition, failure to update and clarify the lists of orders that fall within the definitions of "interstate forfeiture order", "interstate pecuniary penalty order", and "interstate restraining order" may result in these orders not being enforceable in the nonself-governing Commonwealth Territories and overseas where mutual assistance arrangements are in place. Similarly, failure to update and clarify the list of GBEs that may receive payments from the Confiscated Assets Trust Fund may result in these GBEs not being eligible to receive such payments. Finally, failure to ensure consistency in terminology and to avoid confusion over which Act is being referenced may result in legal uncertainty and potential legal action being taken against the parties or entities responsible.