CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009

i Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 2

Schedule 1--Unexplained wealth

Part 1--Main amendments

Proceeds of Crime Act 2002

Part 2--Related amendments

Bankruptcy Act 1966

Crimes Act 1914

Schedule 2--Other ame ndments relating to proceeds of crime

Part 1--Freezing orders

Div ision 1--Main amend ments

Proceeds of Crime Act 2002

Div ision 2--Related amendments

Crimes Act 1914

Family Law Act 1975

Part 2--Removal of 6-year time limit

Proceeds of Crime Act 2002

Part 3--Confiscation scheme and instruments of serious

offences

Proceeds of Crime Act 2002

Part 4--Disclosure of information

Proceeds of Crime Act 2002

Part 5--Legal aid costs

Proceeds of Crime Act 2002

Part 6--Technical amendments

Proceeds of Crime Act 2002

Schedule 3--Amendme nts relating to controlled operations,

assumed identities and witness identity protection

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009 ii

Part 1--Main amendments

Crimes Act 1914

Part 2--Provisions relating to pre-commencement

authorisations under State controlled operations law

150

Part 3--General application and transitional provisions

154

Part 4--Consequential amendment

156

Customs Act 1901

156

Schedule 4--Other ame ndments

157

Part 1--Joint commission

157

Criminal Code Act 1995

157

Part 2--Amendment of the Telecommunications (Interception

and Access) Act 1979

161

Telecommunications (Interception and Access) Act 1979

161

Part 3--Regulations

164

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009 1

A Bill for an Act to amend various Acts relating to

the enforcement of the criminal law, and for other

purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Crimes Legislation Amendment

(Serious and Organised Crime) Act 2009.

2 Commence ment

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

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.

2. Schedule 1

The day on which this Act receives the

Royal Assent.

3. Schedule 2,

Parts 1 to 4

The day after this Act receives the Royal

Assent.

4. Schedule 2,

Part 5

On the day after the end of the period of 3

months beginning on the day on which this

Act receives the Royal Assent.

5. Schedule 2,

Part 6

The day after this Act receives the Royal

Assent.

6. Schedule 3

The day on which this Act receives the

Royal Assent.

7. Schedule 4,

Part 1

The day after this Act receives the Royal

Assent.

8. Schedule 4,

Parts 2 and 3

The day on which this Act receives the

Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Schedule(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.

Unexplained wealth Schedule 1

Main amendments Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

Schedule 1

Unexplained wealth

Part 1

Main amendments

Proceeds of Crime Act 2002

1 After paragraph 5(b)

Insert:

(ba) to deprive persons of

unexplained wealth amounts that the

person cannot satisfy a court were not derived from certain

offences; and

2 Paragraph 5(d)

Omit "and literary proceeds", substitute ", literary proceeds and

unexplained wealth amounts".

3 Paragraph 5(e)

Omit "and literary proceeds", substitute ", literary proceeds and

unexplained wealth amounts".

4 At the end of section 7

Add:

; and (f) unexplained wealth orders requiring payment of unexplained

wealth amounts (see Part 2-6).

5 After section 20

Insert:

20A Restraining orders--unexplained wealth

When a restraining order must be made

(1) A court with

proceeds jurisdiction must order that:

(a) property must not be disposed of or otherwise dealt with by

any person; or

(b) property must not be disposed of or otherwise dealt with by

any person except in the manner and circumstances specified

in the order;

if:

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DPP applies for the order; and

(d) there are reasonable grounds to suspect that a person's

total

wealth exceeds the value of the person's

wealth that was

lawfully acquired; and

(e) any affidavit requirements in subsection (3) for the

application have been met; and

(f) the court is satisfied that the

authorised officer who made

the affidavit holds the suspicion or suspicions stated in the

affidavit on reasonable grounds; and

(g) there are reasonable grounds to suspect either or both of the

following:

(i) that the person has committed an offence against a law

of the Commonwealth, a

foreign indictable offence or a

State offence that has a federal aspect;

(ii) that the whole or any part of the person's wealth was

derived from an offence against a law of the

Commonwealth, a foreign indictable offence or a State

offence that has a federal aspect.

Property that a restraining order may cover

(2) The order must specify, as property that must not be disposed of or

otherwise dealt with, the property specified in the application for

the order, to the extent that the court is satisfied that there are

reasonable grounds to suspect that that property is any one or more

of the following:

(a) all or specified property of the

suspect;

(b) all or specified

bankruptcy property of the suspect;

(d) all bankruptcy property of the suspect other than specified

bankruptcy property;

(e) specified property of another person (whether or not that

other person's identity is known) that is subject to the

effective control of the suspect.

Affidavit requirements

(3) The application for the order must be supported by an affidavit of

authorised officer stating:

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(a) that the authorised officer suspects that the

total wealth of

the

suspect exceeds the value of the suspect's

wealth that

was

lawfully acquired; and

(b) if the application is to restrain property of a person other than

the suspect but not to restrain

bankruptcy property of the

suspect--that the authorised officer suspects that the

property is subject to the

effective control of the suspect;

and

following:

(i) that the suspect has committed an offence against a law

of the Commonwealth, a

foreign indictable offence or a

State offence that has a federal aspect;

(ii) that the whole or any part of the suspect's wealth was

derived from an offence against a law of the

Commonwealth, a foreign indictable offence or a State

offence that has a federal aspect.

The affidavit must include the grounds on which the authorised

officer holds those suspicions.

Refusal to make a restraining order

(4) Despite subsection (1), the court may refuse to make a

restraining

order if the court is satisfied that it is not in the public interest to

make the order.

Note:

A court can also refuse to make a restraining order if the

Commonwealth refuses to give an undertaking: see section 21.

Risk of property being disposed of etc.

(5) The court must make a

restraining order even if there is no risk of

the property being disposed of or otherwise dealt with.

Later acquisitions of property

(6) The court may specify that a

restraining order covers property that

is acquired by the

suspect after the court makes the order.

Otherwise, no property that is acquired after a court makes a

restraining order is covered by the order.

6 Subsection 29(1) (note)

Omit "31A", substitute "32".

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Note:

The heading to section 29 is altered by omitting "a restraining order" and substituting

"certain restraining orders".

7 After section 29

Insert:

29A Court may exclude prope rty from a restraining order made

under section 20A

The court to which an application for a

restraining order under

section 20A was made may, when the order is made or at a later

time, exclude specified property from the order if:

(a) an application is made under section 30 or 31; and

(b) the court is satisfied that:

(i) the property is property of a person other than the

suspect; and

(ii) the property is not subject to the

effective control of the

suspect.

Note:

Section 32 may prevent the court from hearing the application until

the DPP has had a reasonable opportunity to conduct an examination

of the applicant.

8 Paragraph 35(1)(a)

After "29", insert "or 29A".

9 Subsection 39(1) (note)

After "Note", insert "1".

10 At the end of subsection 39(1) (after the note)

Add:

Note 2:

If there is an unexplained wealth order that relates to a restraining

order under section 20A, the court may also order the Official Trustee

to pay an amount equal to the unexplained wealth amount out of

property covered by the restraining order: see section 282A.

11 At the end of section 45

Add:

(7) To avoid doubt, this section does not apply to a

restraining order

made under section 20A.

Note:

The heading to section 45 is altered by inserting "certain" before "restraining".

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12 At the end of Division 6 of Part 2-1

Add:

45A Cessation of restraining orde rs relating to unexplained wealth

(1) A

restraining order made under section 20A ceases to be in force

if, within 28 days after the order was made, no application for an

unexplained wealth order has been made in relation to the

suspect

to whom the restraining order relates.

(2) A

restraining order made under section 20A ceases to be in force

if:

(a) an application for an

unexplained wealth order is made in

relation to the

suspect to whom the restraining order relates;

and

(b) the application is made within 28 days after the making of the

restraining order; and

(d) one of the following applies:

(i) the time for an appeal against the refusal has expired

without an appeal being lodged;

(ii) an appeal against the refusal has lapsed;

(iii) an appeal against the refusal has been dismissed and

finally disposed of.

(3) A

restraining order made under section 20A ceases to be in force

if:

(a) an application for an

unexplained wealth order is made in

relation to the

suspect to whom the restraining order relates;

and

(b) the application is made within 28 days after the making of the

restraining order; and

(d) either:

(i) the unexplained wealth order is complied with; or

(ii) an appeal against the unexplained wealth order has been

upheld and finally disposed of.

13 At the end of Chapter 2

Add:

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Part 2-6--Unexplained wealth orders

179A Simplified outline of this Part

This Part provides for the making of certain orders relating to

unexplained wealth.

A preliminary unexplained wealth order requires a person to attend

court for the purpose of enabling the court to decide whether to

make an unexplained wealth order against the person.

An unexplained wealth order is an order requiring the person to

pay an amount equal to so much of the person's total wealth as the

person cannot satisfy the court is not derived from certain offences.

Division 1--Making unexplained wealth orders

179B Making an order requiring a person to appear

(1) A court with

proceeds jurisdiction must make an order (a

preliminary unexplained wealth order) requiring a person to

appear before the court for the purpose of enabling the court to

decide whether or not to make an

unexplained wealth order in

relation to the person if:

(a) the

DPP applies for an unexplained wealth order in relation

to the person; and

(b) the court is satisfied that an

authorised officer has

reasonable grounds to suspect that the person's

total wealth

exceeds the value of the person's

wealth that was

lawfully

acquired; and

application have been met.

Affidavit requirements

(2) An application for an

unexplained wealth order in relation to a

person must be supported by an affidavit of an

authorised officer

stating:

(a) the identity of the person; and

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(b) that the authorised officer suspects that the person's

total

wealth exceeds the value of the person's

wealth that was

lawfully acquired; and

(i) the property the authorised officer knows or reasonably

suspects was lawfully acquired by the person;

(ii) the property the authorised officer knows or reasonably

suspects is owned by the person or is under the

effective control of the person.

The affidavit must include the grounds on which the authorised

officer holds the suspicions referred to in paragraph (c).

179C Application to revoke a preliminary unexplained wealth order

(1) If a court makes a

preliminary unexplained wealth order requiring

a person to appear before the court, the person may apply to the

court to revoke the order.

(2) The application must be made:

(a) within 28 days after the person is notified of the

preliminary

unexplained wealth order; or

(b) if the person applies to the court, within that period of 28

days, for an extension of the time for applying for

revocation--within such longer period, not exceeding 3

months, as the court allows.

(3) The applicant must give written notice to the

DPP of the

application and the grounds on which the revocation is sought.

(4) However, the

preliminary unexplained wealth order remains in

force until the court revokes the order.

(5) The

DPP may adduce additional material to the court relating to

the application to revoke the

preliminary unexplained wealth

order.

(6) The court may revoke the

preliminary unexplained wealth order if

satisfied that there were no grounds on which to make the order at

the time the order was made.

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179D Notice of revocation of a preliminary unexplained wealth

order

If a

preliminary unexplained wealth order is revoked under

section 179C, the

DPP must give written notice of the revocation

to the applicant for the revocation.

179E Making an unexplained wealth order

(1) A court with

proceeds jurisdiction must make an order (an

unexplained wealth order) requiring a person to pay an amount to

the Commonwealth if:

(a) the court has made a

preliminary unexplained wealth order

in relation to the person; and

(b) the court is not satisfied that the

total wealth of the person

was not derived from one or more of the following:

(i) an offence against a law of the Commonwealth;

(ii) a

foreign indictable offence;

(iii) a

State offence that has a federal aspect.

(2) The court must specify in the order that the person is liable to pay

to the Commonwealth an amount (the person's unexplained

wealth amount) equal to the amount that, in the opinion of the

court, is the difference between:

(a) the person's

total wealth; and

(b) the sum of the values of the property that the court is satisfied

was not derived from one or more of the following:

(i) an offence against a law of the Commonwealth;

(ii) a

foreign indictable offence;

(iii) a

State offence that has a federal aspect.

(3) In proceedings under this section, the burden of proving that a

person's

wealth is not derived from one or more of the offences

referred to in paragraph (1)(b) lies on the person.

(4) To avoid doubt, when considering whether to make an order under

subsection (1), the court may have regard to information not

included in the application, including information that could not

reasonably have been ascertained before the application was made.

(5) To avoid doubt, subsection (3) has effect despite section 317.

Unexplained wealth Schedule 1

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179F Ancillary orders

(1) A court that makes an

unexplained wealth order, or any other

court that could have made the unexplained wealth order, may

make orders ancillary to the order, either when the order is made or

at a later time.

(2) A court that makes a

preliminary unexplained wealth order, or any

other court that could have made the order, may make orders

ancillary to the order, either when the order is made or at a later

time.

Division 2--Unexplained wealth amounts

179G Determining unexplained wealth amounts

Meaning of wealth

(1) The property of a person that, taken together, constitutes the wealth

of a person for the purposes of this Part is:

(a) property owned by the person at any time;

(b) property that has been under the

effective control of the

person at any time;

or otherwise) or consumed at any time;

including property owned, effectively controlled, disposed of or

consumed before the commencement of this Part.

Meaning of total wealth

(2) The total wealth of a person is the sum of all of the values of the

property that constitutes the person's wealth.

Value of property

(3) The value of any property that has been disposed of or consumed,

or that is for any other reason no longer available, is the greater of:

(a) the value of the property at the time it was acquired; and

(b) the value of the property immediately before it was disposed

of, consumed or stopped being available.

(4) The value of any other property is the greater of:

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(a) the value of the property at the time it was acquired; and

(b) the value of the property on the day that the application for

the

unexplained wealth order was made.

179H Effect of property vesting in an insolvency trustee

In assessing the value of property of a person, property is taken to

continue to be the

person's property if it vests in any of the

following:

(a) in relation to a bankruptcy--the trustee of the estate of the

bankrupt;

(b) in relation to a composition or scheme of arrangement under

Division 6 of Part IV of the Bankruptcy Act 1966--the

trustee of the composition or scheme of arrangement;

of the Bankruptcy Act 1966--the trustee of the agreement;

(d) in relation to the estate of a deceased person in respect of

which an order has been made under Part XI of the

Bankruptcy Act 1966--the trustee of the estate.

179J Reducing unexplained wealth amounts to take account of

forfeiture, pecuniary penalties etc.

In determining the

unexplained wealth amount specified in an

unexplained wealth order in relation to a person, the court must

deduct an amount equal to the following:

(a) the value, at the time of making the order, of any property of

the person forfeited under:

(i) a

forfeiture order; or

(ii) an

interstate forfeiture order; or

(iii) a

foreign forfeiture order;

(b) the sum of any amounts payable by the person under:

(i) a

pecuniary penalty order; or

(ii) a

literary proceeds order; or

(iii) an order under section 243B of the Customs Act 1901;

(iv) an

interstate pecuniary penalty order; or

(v) a

foreign pecuniary penalty order.

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179K Varying unexplained wealth orde rs to increase amounts

(1) The court may, on the application of the

DPP, vary an

unexplained wealth order against a person by increasing the

unexplained wealth amount if subsection (2) or (3) applies. The

amount of the increase is as specified in subsection (2) or (3).

(2) The

unexplained wealth amount may be increased if:

(a) the value of property of the person forfeited under a

forfeiture order, an

interstate forfeiture order or a

foreign

forfeiture order was deducted from the unexplained wealth

amount under paragraph 179J(a); and

(b) an appeal against the forfeiture, or against the order, is

allowed.

The amount of the increase is equal to the value of the property.

(3) The

unexplained wealth amount may be increased if:

(a) an amount payable under a

pecuniary penalty order, a

literary proceeds order, an order under section 243B of the

Customs Act 1901, an

interstate pecuniary penalty order or a

foreign pecuniary penalty order was deducted from the

unexplained wealth amount under paragraph 179J(b); and

(b) an appeal against the amount payable, or against the order, is

allowed.

The amount of the increase is equal to the amount that was

payable.

(4) The

DPP's application may deal with more than one increase to

the same

unexplained wealth amount.

179L Relieving certain dependants from hardship

(1) The court making an

unexplained wealth order specifying an

unexplained wealth amount must make another order directing the

Commonwealth to pay a specified amount to a

dependant of the

person if the court is satisfied that:

(a) the unexplained wealth order would cause hardship to the

dependant; and

(b) the specified amount would relieve that hardship; and

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no knowledge of the person's conduct that is the subject of

the unexplained wealth order.

(2) The specified amount must not exceed the

unexplained wealth

amount.

(3) An order under this section may relate to more than one of the

person's

dependants.

Division 3--How unexplained wealth orders are obtained

179M DPP may apply for an unexplained wealth order

The

DPP may apply for an

unexplained wealth order.

179N Notice of application

(1) This section sets out the notice requirements if the

DPP has made

an application for an

unexplained wealth order.

(2) If a court with

proceeds jurisdiction makes a

preliminary

unexplained wealth order in relation to the person, the

DPP must,

within 7 days of the making of the order:

(a) give written notice of the order to the person who would be

subject to the

unexplained wealth order if it were made; and

(b) provide to the person a copy of the application for the

unexplained wealth order, and any affidavit supporting the

application.

(3) For the purposes of subsection (2), the

DPP must provide a copy

of an affidavit supporting an application, whether the affidavit was:

(a) provided with the application; or

(b) prepared after the application was made.

(4) However, the

DPP may delay giving a copy of an affidavit to the

person if the court to which the application was made so orders.

(5) The court must not make an order under subsection (4) unless it is

satisfied that:

(a) providing a copy of the affidavit would prejudice the

investigation of, or the prosecution of a person for, an

offence; or

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(b) it is for any other reason appropriate to make the order.

179P Additional application for an unexplained wealth order

(1) The

DPP cannot, unless the court gives leave, apply for an

unexplained wealth order against a person if:

(a) an application has previously been made for an unexplained

wealth order in relation to the person; and

(b) the application has been finally determined on the merits.

(2) The court must not give leave unless it is satisfied that:

(a) the

wealth to which the new application relates was

identified only after the first application was determined; or

(b) necessary evidence became available only after the first

application was determined; or

179Q Procedure on application

The person who would be subject to an

unexplained wealth order

if it were made may appear and adduce evidence at:

(a) the hearing of an application under section 179C to revoke a

preliminary unexplained wealth order relating to the

application; and

(b) the hearing in relation to whether the unexplained wealth

order is to be made under section 179E.

Division 4--Enforcement of unexplained wealth orders

179R Enforcement of an unexplained wealth order

(1) An amount payable by a person to the Commonwealth under an

unexplained wealth order is a civil debt due by the person to the

Commonwealth.

(2) An

unexplained wealth order against a person may be enforced as

if it were an order made in civil proceedings instituted by the

Commonwealth against the person to recover a debt due by the

person to the Commonwealth.

(3) The debt arising from the order is taken to be a judgment debt.

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(4) If an

unexplained wealth order is made against a person after the

person's death, this section has effect as if the person had died on

the day after the order was made.

179S Property subject to a pe rson's effective control

(1) If:

(a) a person is subject to an

unexplained wealth order; and

(b) the

DPP applies to the court for an order under this section;

and

effective control of the person;

the court may make an order declaring that the whole, or a

specified part, of that property is available to satisfy the

unexplained wealth order.

(2) The order under subsection (1) may be enforced against the

property as if the property were the

person's property.

(3) A

restraining order may be made in respect of the property as if:

(a) the property were the

person's property; and

(b) there were reasonable grounds to suspect that:

(i) the person had committed an offence against a law of

the Commonwealth, a

foreign indictable offence or a

State offence that has a federal aspect;

(ii) the whole or any part of the person's wealth was derived

from an offence against a law of the Commonwealth, a

foreign indictable offence or a State offence that has a

federal aspect.

(4) If the

DPP applies for an order under subsection (1) relating to

particular property, the DPP must give written notice of the

application to:

(a) the person who is subject to the

unexplained wealth order;

and

(b) any person whom the DPP has reason to believe may have an

interest in the property.

(5) The person who is subject to the

unexplained wealth order, and

any person who claims an

interest in the property, may appear and

adduce evidence at the hearing of the application.

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179T Amounts exceeding the court's jurisdiction

(1) If:

(a) a court makes an

unexplained wealth order of a particular

amount; and

(b) the court does not have jurisdiction with respect to the

recovery of debts of an amount equal to that amount;

the registrar of the court must issue a certificate containing the

particulars specified in the regulations.

(2) The certificate may be registered, in accordance with the

regulations, in a court having jurisdiction with respect to the

recovery of debts of an amount equal to the amount of the relevant

order.

(3) Upon registration in a court, the certificate is enforceable in all

respects as a final judgment of the court in favour of the

Commonwealth.

14 After paragraph 202(5)(e)

Insert:

(ea) a document relevant to identifying, locating or quantifying

the property of a person, if it is reasonable to suspect that the

total value of the person's

wealth exceeds the value of the

person's wealth that was

lawfully acquired;

(eb) a document relevant to identifying or locating any document

necessary for the transfer of property of such a person;

15 Paragraph 202(5)(f)

Omit "or (e)", substitute "(e), (ea) or (eb)".

16 After section 282

Insert:

282A Direction by a court to the Official Trustee in relation to

unexplained wealth orders

(1) A court may, if subsection (2), (3) or (4) applies, direct the

Official Trustee to pay the Commonwealth, out of property that is

subject to a

restraining order under section 20A, an amount equal

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to the

unexplained wealth amount made under an

unexplained

wealth order in relation to a person.

(2) The court that makes the

unexplained wealth order may include

such a direction in the order if the

restraining order:

(a) has already been made against the person; and

(b) relates to property that constitutes part of the person's

total

wealth.

(3) The court that makes the

restraining order may include such a

direction in the order if:

(a) the

unexplained wealth order has been made against the

person; and

(b) the restraining order is subsequently made:

(i) against the person under section 20A; or

(ii) against property of another person in relation to which

an order is in force under section 179S in relation to the

unexplained wealth order.

(4) The court that made the

unexplained wealth order or the

restraining order may, on application by the

DPP, make the

direction if:

(a) the unexplained wealth order has been made against the

person; and

(b) the restraining order has been made:

(i) against the person under section 20A; or

(ii) against property of another person in relation to which

an order is in force under section 179S in relation to the

unexplained wealth order.

Note:

The heading to section 282 is altered by adding at the end "in relation to certain

restraining orders".

17 Subsections 283(1) and 284(1)

After "282", insert "or 282A".

18 Subsection 284(2)

Omit "or

literary proceeds amount", substitute ",

literary proceeds

amount or

unexplained wealth amount".

19 Paragraph 284(2)(a)

Unexplained wealth Schedule 1

Main amendments Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

Omit "or literary proceeds amount", substitute ", literary proceeds

amount or unexplained wealth amount".

20 Subsection 285(1)

After "282", insert "or 282A".

21 Subsection 285(2)(a)

Omit "or

literary proceeds order", substitute ",

literary proceeds order

unexplained wealth order".

22 Subsection 285(2)(b)

Omit "or literary proceeds order", substitute ", literary proceeds order or

unexplained wealth order".

23 At the end of section 286

Add:

(3) If the

Official Trustee credits, under this Division, money to the

Confiscated Assets Account as required by section 296 in

satisfaction of a person's liability under an

unexplained wealth

order, the person's liability under the unexplained wealth order is,

to the extent of the credit, discharged.

24 After paragraph 296(3)(f)

Insert:

(fa) the amount referred to in subsection 179R(1);

25 Paragraph 322(1)(c)

Omit all the words from and including "or 168" to and including

"proceeds", substitute ", 168 or 179S to satisfy a

pecuniary penalty

order, a

literary proceeds order or an

unexplained wealth".

26 Subsection 322(1)

Omit "or 168" (second occurring), substitute ", 168 or 179S".

27 After subsection 322(4)

Insert:

(4A) Despite subsections (2) and (3), in the case of an

unexplained

wealth order, or an order under section 179S that relates to an

Schedule 1 Unexp lained wealth

Part 1 Main amendments

20 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

unexplained wealth order, the person may appeal against the

targeted order in the same manner as if:

(a) the person had been convicted of one of the following:

(i) an offence against a law of the Commonwealth;

(ii) a

foreign indictable offence;

(iii) a

State offence that has a federal aspect; and

(b) the targeted order were, or were part of, the sentence imposed

on the person in respect of the offence.

28 Subsection 335(1)

After "order" (first occurring), insert ", other than a

preliminary

unexplained wealth order or an

unexplained wealth order,".

29 At the end of section 335

Add:

Preliminary unexplained wealth orders and unexplained wealth

orders

(7) The courts that have proceeds jurisdiction for a

preliminary

unexplained wealth order or an

unexplained wealth order are those

of any State or Territory with jurisdiction to deal with criminal

matters on indictment.

30 Section 336

Omit "or

literary proceeds", substitute ",

literary proceeds or

wealth".

31 Section 336

Omit "or literary proceeds", substitute ", literary proceeds or wealth".

32 After section 336

Insert:

336A Meaning of prope rty or wealth being lawfully acquired

For the purposes of this Act, property or

wealth is lawfully

acquired only if:

(a) the property or wealth was lawfully acquired; and

(b) any consideration given for the property or wealth was

lawfully acquired.

Unexplained wealth Schedule 1

Main amendments Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

33 Section 338 (definition of confiscation order)

Omit "or a

literary proceeds order", substitute ", a

literary proceeds

order or an

unexplained wealth order".

34 Section 338

Insert:

lawfully acquired has a meaning affected by section 336A.

35 Section 338

Insert:

preliminary unexplained wealth order, in relation to a person,

means an order under section 179B requiring the person to appear

before a court.

36 Section 338 (definition of restraining order)

Omit "or 20", substitute "20 or 20A".

37 Section 338

Insert:

State offence that has a federal aspect has the same meaning as in

the Crimes Act 1914.

Note:

Section 3AA of the Crimes Act 1914 sets out when a State offence has

a federal aspect.

38 Section 338 (definition of suspect)

Insert:

suspect means:

(a) in relation to a

restraining order (other than a restraining

order made under section 20A) or a

confiscation order (other

than an

unexplained wealth order)--the person who:

(i) has been convicted of; or

(ii) has been

charged with, or is proposed to be charged

with; or

(iii) if the order is a restraining order--is suspected of

having committed; or

(iv) if the order is a confiscation order--committed;

Schedule 1 Unexp lained wealth

Part 1 Main amendments

22 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

the offence or offences to which the order relates; or

(b) in relation to a restraining order made under section 20A or

an unexplained wealth order--the person whose

total wealth

is suspected of exceeding the value of

wealth that was

lawfully acquired.

39 Section 338

Insert:

total wealth, of a person, has the meaning given by subsection

179G(2).

40 Section 338

Insert:

unexplained wealth amount, of a person, has the meaning given

by subsection 179E(2).

41 Section 338

Insert:

unexplained wealth order means an order made under subsection

179E(1) that is in force.

42 Section 338

Insert:

wealth, of a person, has the meaning given by subsection 179G(1).

Unexplained wealth Schedule 1

Related amend ments Part 2

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

Part 2

Related amendments

Bankruptcy Act 1966

43 Subsection 5(1) (at the end of the definition of pecuniary

penalty order)

Add:

; or (c) an unexplained wealth order within the meaning of the

Proceeds of Crime Act 2002.

Crimes Act 1914

44 Subparagraph 3(2)(a)(ii)

Omit "or a literary proceeds order", substitute ", a literary proceeds

order or an unexplained wealth order".

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

24 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

Schedule 2

Other amendments relating to

proceeds of crime

Part 1

Freezing orders

Division 1

Main amendments

Proceeds of Crime Act 2002

1 Section 7

Omit "5", substitute "a number of".

2 Before paragraph 7(a)

Insert:

(aa) freezing orders limiting withdrawals from accounts with

financial institutions before courts decide applications for

restraining orders to cover the accounts (see Part 2-1A); and

3 Before Part 2-1

Insert:

Part 2-1A--Freezing orders

15A Simplified outline of this Part

A freezing order can be made against an account with a financial

institution if:

(a) there are grounds to suspect the account balance

reflects proceeds or an instrument of certain

offences; and

(b) a magistrate is satisfied that, unless the order is

made, there is a risk that the balance of the account

will be reduced so that a person will not be

deprived of all or some of the proceeds or

instrument.

Other amend ments relating to proceeds of crime Schedule 2

Freezing orders Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

Division 1--Making freezing orders

15B Making freezing orders

(1) A magistrate must order that a

financial institution not allow a

withdrawal from an

account with the institution, except in the

manner and circumstances specified in the order, if:

(a) an

authorised officer described in paragraph (a), (aa), (b) or

applies for the order in accordance with Division 2; and

(b) there are reasonable grounds to suspect that the balance of

the account:

(i) is

proceeds of an

indictable offence, a

foreign

indictable offence or an

indictable offence of

Commonwealth concern (whether or not the identity of

the person who committed the offence is known); or

(ii) is wholly or partly an

instrument of a

serious offence;

and

this section, there is a risk that the balance of the account will

be reduced so that a person will not be deprived of all or

some of such proceeds or such an instrument.

Note 1:

Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer

in section 338 cover certain AFP members, certain members of the

Australian Commission for Law Enforcement Integrity, certain

members of the Australian Crime Commission and certain officers of

Customs.

Note 2:

The balance of the account may be proceeds of an offence even

though the balance is only partly derived from the offence: see

section 329.

(2) An order made under subsection (1) covers the balance of the

account from time to time.

Order need not be based on commission of particular offence

(3) The reasonable grounds referred to in paragraph (1)(b), and the

satisfaction referred to in paragraph (1)(c), need not be based on a

finding as to the commission of a particular offence.

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

26 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

Division 2--How freezing orders are obtained

15C Affidavit supporting application made in person

If an

authorised officer applies in person to a magistrate for a

freezing order relating to an

account with a

financial institution,

the application must be supported by an affidavit of an authorised

officer described in paragraph (a), (aa), (b) or (c) of the definition

of authorised officer in section 338:

(a) setting out sufficient information to identify the account (for

example, the account number); and

(b) identifying the financial institution; and

account:

(i) is

proceeds of an

indictable offence, a

foreign

indictable offence or an

indictable offence of

Commonwealth concern; or

(ii) is wholly or partly an

instrument of a

serious offence;

and

(d) setting out the grounds on which a person could be satisfied

that, unless the order is made, there is a risk that the balance

of the account will be reduced so that a person will not be

deprived of all or some of such proceeds or of such an

instrument.

Note:

Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer

in section 338 cover certain AFP members, certain members of the

Australian Commission for Law Enforcement Integrity, certain

members of the Australian Crime Commission and certain officers of

Customs.

15D Applying for freezing orde rs by telephone or other electronic

means

(1) An

authorised officer described in paragraph (a), (aa), (b) or (c) of

the definition of authorised officer in section 338 may apply to a

magistrate for a

freezing order by telephone, fax or other

electronic means:

(a) in an urgent case; or

(b) if the delay that would occur if an application were made in

person would frustrate the effectiveness of the order.

Other amend ments relating to proceeds of crime Schedule 2

Freezing orders Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

Note:

Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer

in section 338 cover certain AFP members, certain members of the

Australian Commission for Law Enforcement Integrity, certain

members of the Australian Crime Commission and certain officers of

Customs.

(2) An application under subsection (1):

(a) must include all information that would be required in an

ordinary application for a

freezing order and supporting

affidavit; and

(b) if necessary, may be made before the affidavit is sworn.

(3) The magistrate may require:

(a) communication by voice to the extent that it is practicable in

the circumstances; and

(b) any further information.

15E Making order by telephone etc.

(1) The magistrate may complete and sign the same form of

freezing

order that would be made under section 15B if satisfied that:

(a) a freezing order should be issued urgently; or

(b) the delay that would occur if an application were made in

person would frustrate the effectiveness of the order.

(2) If the magistrate makes the

freezing order, he or she must inform

the applicant, by telephone, fax or other electronic means, of the

terms of the order and the day on which and the time at which it

was signed.

(3) The applicant must then:

(a) complete a form of

freezing order in terms substantially

corresponding to those given by the magistrate; and

(b) state on the form:

(i) the name of the magistrate; and

(ii) the day on which the order was signed; and

(iii) the time at which the order was signed.

(4) The applicant must give the magistrate the form of

freezing order

completed by the applicant by the end of:

(a) the second

working day after the magistrate makes the

order; or

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

28 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

(b) the first working day after the magistrate makes the order, if

it is served on the

financial institution concerned before the

first working day after the magistrate makes the order.

(5) If, before the magistrate made the

freezing order, the applicant did

not give the magistrate an affidavit supporting the application and

meeting the description in section 15C, the applicant must do so by

the time by which the applicant must give the magistrate the form

of freezing order completed by the applicant.

(6) If the applicant does not comply with subsection (5), the

freezing

order is taken never to have had effect.

(7) The magistrate must attach the form of

freezing order completed

by the magistrate to the documents provided under subsection (4)

and (if relevant) subsection (5).

15F Unsigned freezing orders in court proceedings

If:

(a) it is material, in any proceedings, for a court to be satisfied

that a

freezing order applied for under section 15D was duly

made; and

(b) the form of freezing order signed by the magistrate is not

produced in evidence;

the court must assume that the order was not duly made unless the

contrary is proved.

15G Offence for making false statements in applications

A person commits an offence if:

(a) the person makes a statement (whether orally, in a document

or in any other way); and

(b) the statement:

(i) is false or misleading; or

(ii) omits any matter or thing without which the statement is

misleading; and

application for a

freezing order.

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

Other amend ments relating to proceeds of crime Schedule 2

Freezing orders Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

15H Offences relating to orders made under section 15E

Offence for stating incorrect names in telephone orders

(1) A person commits an offence if:

(a) the person states a name of a magistrate in a document; and

(b) the document purports to be a form of

freezing order under

section 15E; and

order.

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

Offence for unauthorised form of order

(2) A person commits an offence if:

(a) the person states a matter in a form of

freezing order under

section 15E; and

(b) the matter departs in a material particular from the order

made by the magistrate.

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

Offence for service of unauthorised form of order

(3) A person commits an offence if:

(a) the person presents a document to a person; and

(b) the document purports to be a form of

freezing order under

section 15E; and

(i) has not been approved by a magistrate under that

section; or

(ii) departs in a material particular from the terms given by

the magistrate under that section.

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

Offence for giving form of order different from that served

(4) A person commits an offence if:

(a) the person gives a magistrate a form of

freezing order under

section 15E relating to a

financial institution; and

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

30 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

(b) the person does so after presenting to the financial institution

a document purporting to be a form of the freezing order; and

the document presented to the financial institution.

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

Division 3--Giving effect to freezing orders

15J Service of freezing order on financial institution and

account-holder

If a magistrate makes a

freezing order relating to an

account with

financial institution, the applicant for the order must cause a

copy of the order (or of a form of the order under section 15E) to

be given to:

(a) the financial institution; and

(b) each person in whose name the account is held.

Note:

If the copy of the order is given to the financial institution after the

end of the first working day after the order is made, the order does not

come into force: see subsection 15N(1).

15K Freezing order does not prevent withdrawal to enable financial

institution to meet its liabilities

freezing order relating to an

account with a

financial

institution does not prevent the institution from allowing a

withdrawal from the account to enable the institution to meet a

liability imposed on the institution by or under a written law of the

Commonwealth, a State or a Territory.

15L Offence for contravening freezing orde rs

financial institution commits an offence if:

(a) the institution allows a withdrawal from an

account with the

institution; and

(b) there is a

freezing order relating to the account; and

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

Other amend ments relating to proceeds of crime Schedule 2

Freezing orders Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

15M Protection from suits etc. for those complying with orders

No action, suit or proceeding lies against:

(a) a

financial institution; or

(b) an

officer 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 in

complying with a

freezing order or in the mistaken belief that

action was required under a freezing order.

Note:

This section does not affect any action that may lie against anyone

else for the making or operation of a freezing order.

Division 4--Duration of freezing orders

15N When a freezing order is in force

(1) A

freezing order relating to an

account with a

financial

institution comes into force when a copy of the order (or of a form

of the order under section 15E) is given to the institution.

However, the order does not come into force if the copy is given to

the institution after the end of the first

working day after the order

is made.

(2) The

freezing order remains in force until:

(a) the end of the period specified in the order (as affected by

section 15P if relevant) from when the copy of the order was

given to the institution; or

(b) if, before the end of that period, a court makes a decision on

an application for a

restraining order to cover the

account--

the time the court makes that decision.

(3) The

freezing order, as originally made, must not specify a period

of more than 3

working days.

15P Order extending a freezing orde r

(1) A magistrate may make an order extending the period specified in

freezing order made in relation to an

account with a

financial

institution if:

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

32 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

(a) an

authorised officer described in paragraph (a), (aa), (b) or

applies for the extension; and

(b) the magistrate is satisfied that an application has been made

to a court (but not decided by the court) for a

restraining

order to cover the account (whether or not the restraining

order is also to cover other property).

(2) The extension may be for:

(a) a specified number of

working days; or

(b) the period ending when the court decides the application for

the

restraining order.

(3) The extension does not have effect unless a copy of the order for

the extension is given to the

financial institution before the time

the

freezing order would cease to be in force apart from the

extension.

(4) The following provisions apply in relation to an order extending a

freezing order in a way corresponding to the way in which they

apply in relation to a freezing order:

(a) Division 2 (except paragraphs 15C(c) and (d));

(b) section 15J (except the note to that section).

(5) Division 2 applies because of subsection (4) as if:

(a) section 15C also required that an affidavit supporting an

application:

(i) identify the

freezing order; and

(ii) state that an application has been made for a

restraining

order to cover the

account; and

(b) the reference in subsection 15E(1) to section 15B were a

reference to subsection (1) of this section.

Division 5--Varying scope of freezing orders

15Q Magistrate may vary freezing order to allow withdrawal to

meet reasonable expenses

(1) A magistrate may vary a

freezing order relating to an

account

with a

financial institution so that the institution may allow a

Other amend ments relating to proceeds of crime Schedule 2

Freezing orders Part 1

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

withdrawal from the account to meet one or more of the following

relating to a person in whose name the account is held:

(a) the reasonable living expenses of the person;

(b) the reasonable living expenses of any of the

dependants of

the person;

(d) a specified debt incurred in good faith by the person.

(2) The magistrate may vary the

freezing order only if:

(a) a person in whose name the

account is held has applied for

the variation; and

(b) the person has notified the

DPP in writing of the application

and the grounds for the application; and

or will not, relate to legal costs that the person has incurred,

or will incur, in connection with:

(i) proceedings under this Act; or

(ii) proceedings for an offence against a law of the

Commonwealth, a State or a Territory; and

(d) the magistrate is satisfied that the person cannot meet the

expense or debt out of property that is not covered by:

(i) a freezing order; or

(ii) a

restraining order; or

(iii) an

interstate restraining order; or

(iv) a

foreign restraining order that is registered under the

Mutual Assistance Act.

(3) The variation does not take effect until written notice of it is given

to the

financial institution.

4 Paragraph 337A(1)(a)

After "for a", insert "

freezing order,".

5 Paragraph 337A(2)(a)

After "for a", insert "

freezing order or".

6 Section 338

Insert:

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

34 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

freezing order means an order under section 15B, with any

variations under section 15Q.

7 Section 338

Insert:

working day means a day that is not a Saturday, Sunday, public

holiday or bank holiday in the place concerned.

8 Application

Part 2-1A of the Proceeds of Crime Act 2002 applies in relation to an

account if there are reasonable grounds to suspect that the balance of the

account:

(a) is proceeds of an indictable offence, a foreign indictable

offence or an indictable offence of Commonwealth concern;

(b) is wholly or partly an instrument of a serious offence;

whether the conduct constituting the offence occurs before, on or after

the commencement of that Part.

Division 2

Related amendments

Crimes Act 1914

9 Subsection 21E(4) (paragraph (a) of the definition of

confiscation proceedings)

After "for", insert "freezing orders,".

Family Law Act 1975

10 Subsection 4(1) (before paragraph (a) of the definition of

proceeds of crime order)

Insert:

(aa) a freezing order under the Proceeds of Crime Act 2002; or

Other amend ments relating to proceeds of crime Schedule 2

Removal o f 6-year time limit Part 2

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

Part 2

Removal of 6-year time limit

Proceeds of Crime Act 2002

11 Paragraph 18(1)(d)

Repeal the paragraph, substitute:

(d) there are reasonable grounds to suspect that a person has

committed a

serious offence; and

12 Paragraph 18(3)(a)

Repeal the paragraph, substitute:

(a) that the authorised officer suspects that the

suspect

committed the offence; and

13 At the end of subparagraph 19(1)(d)(ii)

Add "and".

14 Paragraph 19(1)(d)

Omit "and, if the offence is not a terrorism offence, that the offence was

committed within the 6 years preceding the application, or since the

application was made; and".

15 Application of amendments of sections 18 and 19

The amendments of sections 18 and 19 of the Proceeds of Crime Act

2002 made by this Part apply in relation to applications made on or after

the commencement of the amendments for a restraining order, whether

the conduct constituting the offence concerned occurred or occurs

before, on or after that commencement.

16 Paragraph 47(1)(c)

Repeal the paragraph, substitute:

suspected conduct formed the basis of the restraining order

engaged in conduct constituting one or more

serious

offences.

17 Paragraph 49(1)(d)

Repeal the paragraph.

Schedule 2 Other amendments relating to proceeds of crime

Part 2 Removal of 6-year time limit

36 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

18 Application of amendments of sections 47 and 49

The amendments of sections 47 and 49 of the Proceeds of Crime Act

2002 made by this Part apply in relation to applications made on or after

the commencement of the amendments for a forfeiture order, whether

the conduct constituting the offence concerned occurred or occurs

before, on or after that commencement.

19 Subsection 84(1)

Omit "(1)".

20 Subsection 84(2)

Repeal the subsection.

21 Subsection 85(1)

Omit "84(1)(a)", substitute "84(a)".

22 Subsection 85(2)

Omit "84(1)(b)", substitute "84(b)".

23 Subsection 110(1)

Omit "(1)".

24 Subsection 110(2)

Repeal the subsection.

25 Subsection 111(1)

Omit "110(1)(a)", substitute "110(a)".

26 Subsection 111(2)

Omit "110(1)(b)", substitute "110(b)".

27 Subparagraph 116(1)(b)(ii)

Omit "subject to subsection (2),".

28 Subsection 116(2)

Repeal the subsection.

29 Application of amendments of section 116

Other amend ments relating to proceeds of crime Schedule 2

Removal o f 6-year time limit Part 2

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

The amendments of section 116 of the Proceeds of Crime Act 2002

made by this Part apply in relation to applications made on or after the

commencement of the amendments for a pecuniary penalty order,

whether the conduct constituting the offence concerned occurred or

occurs before, on or after that commencement.

30 Section 149

Repeal the section, substitute:

149 Court may confirm pecuniary penalty order

The court may confirm the

pecuniary penalty order if the court is

satisfied that, when the

DPP applied for the order, the court could

have made the order without relying on the person's conviction

that was

quashed.

31 Application of new section 149

Section 149 of the Proceeds of Crime Act 2002 as amended by this Part

applies in relation to pecuniary penalty orders applied for after the

commencement of that section, whether the conduct constituting the

offence concerned occurred or occurs before, on or after that

commencement.

32 Subparagraphs 202(5)(a)(ii) and (iii)

Repeal the subparagraphs, substitute:

(ii) whom there are reasonable grounds to suspect of having

engaged in conduct constituting a

serious offence;

33 Subparagraphs 202(5)(c)(ii) and (iii)

Repeal the subparagraphs, substitute:

(ii) proceeds of a serious offence, or an instrument of a

serious offence, that a person is reasonably suspected of

having committed;

34 Subsection 202(6)

Omit "or (iii)".

35 Application of amendments of section 202

Schedule 2 Other amendments relating to proceeds of crime

Part 2 Removal of 6-year time limit

38 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

The amendments of section 202 of the Proceeds of Crime Act 2002

made by this Part apply in relation to production orders applied for on

or after the commencement of the amendments, whether the conduct

constituting the offence concerned occurred or occurs before, on or after

that commencement.

36 Section 338 (paragraph (g) of the definition of serious

offence)

After "Criminal Code", insert "or former section 5, 7, 7A or 86 of the

Crimes Act 1914".

Other amend ments relating to proceeds of crime Schedule 2

Confiscation scheme and instruments of serious offences Part 3

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

Part 3

Confiscation scheme and instruments of

serious offences

Proceeds of Crime Act 2002

37 Subparagraph 18(2)(d)(ii)

Omit "

terrorism", substitute "

serious".

38 Subparagraph 18(3)(b)(iii)

Omit "terrorism", substitute "

serious".

39 Subparagraph 19(1)(d)(ii)

Omit "terrorism", substitute "

serious".

40 Subparagraph 19(1)(e)(ii)

Omit "terrorism", substitute "serious".

41 Paragraph 19(2)(b)

Omit "

terrorism", substitute "

serious".

42 Application of amendments of sections 18 and 19

The amendments of sections 18 and 19 of the Proceeds of Crime Act

2002 made by this Part apply in relation to applications made on or after

the commencement of the amendments for a restraining order, whether

the conduct constituting the offence concerned occurred or occurs

before, on or after that commencement.

43 Subparagraph 29(2)(c)(ii)

Omit "a

terrorism", substitute "a serious".

44 Subparagraph 29(2)(c)(ii)

Omit "any terrorism", substitute "any serious".

45 Subparagraph 29(2)(d)(ii)

Omit "a

terrorism", substitute "a serious".

46 Subparagraph 29(2)(d)(ii)

Omit "any terrorism", substitute "any serious".

Schedule 2 Other amendments relating to proceeds of crime

Part 3 Confiscation scheme and instruments of serious offences

40 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

47 Paragraph 45(6)(ca)

Omit "

terrorism", substitute "

serious".

48 Application of amendments of sections 29 and 45

The amendments of sections 29 and 45 of the Proceeds of Crime Act

2002 made by this Part apply in relation to restraining orders made as a

result of an application made on or after the commencement of the

amendments, whether the conduct constituting the offence concerned

occurred or occurs before, on or after that commencement.

49 At the end of section 47

Add:

Refusal to make a forfeiture order

(4) Despite subsection (1), the court may refuse to make an order

under that subsection relating to property that the court is satisfied:

(a) is an

instrument of a

serious offence other than a

terrorism

offence; and

(b) is not

proceeds of an offence;

if the court is satisfied that it is not in the public interest to make

the order.

50 Application of new subsection 47(4)

Subsection 47(4) of the Proceeds of Crime Act 2002 applies in relation

to the making of an order on or after the commencement of that

subsection, whether the conduct constituting the offence concerned

occurred or occurs before, on or after that commencement.

51 Subparagraph 49(1)(c)(iv)

Omit "

terrorism", substitute "

serious".

52 Application of amendment of subparagraph 49(1)(c)(iv)

The amendment of subparagraph 49(1)(c)(iv) of the Proceeds of Crime

Act 2002 made by this Part applies in relation to applications made on

or after the commencement of the amendment for a forfeiture order,

whether the conduct constituting the offence concerned occurred or

occurs before, on or after that commencement.

53 At the end of section 49

Other amend ments relating to proceeds of crime Schedule 2

Confiscation scheme and instruments of serious offences Part 3

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

Add:

Refusal to make a forfeiture order

(4) Despite subsection (1), the court may refuse to make an order

under that subsection relating to property that the court is satisfied:

(a) is an

instrument of a

serious offence other than a

terrorism

offence; and

(b) is not

proceeds of an offence;

if the court is satisfied that it is not in the public interest to make

the order.

54 Application of new subsection 49(4)

Subsection 49(4) of the Proceeds of Crime Act 2002 applies in relation

to the making of an order on or after the commencement of that

subsection, whether the conduct constituting the offence concerned

occurred or occurs before, on or after that commencement.

55 Subparagraph 73(1)(c)(ii)

Omit "a

terrorism", substitute "a

serious".

56 Subparagraph 73(1)(c)(ii)

Omit "any terrorism", substitute "any serious".

57 Subparagraph 73(1)(d)(iii)

Omit "terrorism" (wherever occurring), substitute "serious".

58 Subparagraph 85(2)(a)(ii)

Omit "

terrorism", substitute "

serious".

59 Subparagraph 85(2)(b)(ii)

Omit "terrorism", substitute "serious".

60 Application of amendments of sections 73 and 85

The amendments of sections 73 and 85 of the Proceeds of Crime Act

2002 made by this Part apply in relation to forfeiture orders applied for

on or after the commencement of the amendments, whether the conduct

constituting the offence concerned occurred or occurs before, on or after

that commencement.

Schedule 2 Other amendments relating to proceeds of crime

Part 3 Confiscation scheme and instruments of serious offences

42 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

61 Subparagraph 111(2)(a)(ii)

Omit "

terrorism", substitute "

serious".

62 Subparagraph 111(2)(b)(ii)

Omit "terrorism", substitute "serious".

63 Application of amendments of section 111

The amendments of section 111 of the Proceeds of Crime Act 2002

made by this Part apply in relation to the quashing, on or after the

commencement of the amendments, of a conviction of an offence,

whether the conviction occurred before, on or after that commencement.

Other amend ments relating to proceeds of crime Schedule 2

Disclosure of information Part 4

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

Part 4

Disclosure of information

Proceeds of Crime Act 2002

64 Section 8

Before "Chapter 3", insert "(1)".

65 At the end of section 8

Add:

(2) Chapter 3 also authorises the disclosure, to certain authorities for

certain purposes, of information obtained under that Chapter or

certain other provisions (see Part 3-6).

66 At the end of subsection 223(4)

Add:

; (e) a person who is or forms part of an authority with one or

more functions under this Act for the purpose of facilitating

the authority's performance of its functions under this Act;

(f) a person who is or forms part of an authority of the

Commonwealth, or of a State, Territory or foreign country,

that has a function of investigating or prosecuting crimes

against a law of the Commonwealth, State, Territory or

country for the purpose of assisting in the prevention,

investigation or prosecution of a crime against that law;

(g) a person in the Australian Taxation Office for the purpose of

protecting public revenue.

67 At the end of Chapter 3

Add:

Part 3-6--Disclosure of information

266A Disclosure

(1) This section applies if a person obtains information:

(a) as a direct result of:

Schedule 2 Other amendments relating to proceeds of crime

Part 4 Disclosure of in formation

44 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

(i) the person being given a sworn statement under an order

made under paragraph 39(1)(d); or

(ii) the exercise of a power (by the person or someone else),

or performance (by the person) of a function, under

Part 3-1, 3-2, 3-3, 3-4 or 3-5 or Division 2 of Part 4-1;

(b) as a result of a disclosure, or a series of disclosures, under

this section.

(2) The person may disclose the information to an authority described

in an item of the following table for a purpose described in that

item if the person believes on reasonable grounds that the

disclosure will serve that purpose:

Recipients and purposes of disclosure

Item

Authority to which disclosure may

be made

Purpose for which disclosure may

be made

Authority with one or more

functions under this Act

Facilitating the authority's

performance of its functions under

this Act

Authority of the Co mmon wealth, or

of a State, Territory or fo reign

country, that has a function of

investigating or prosecuting crimes

against a law of the Co mmonwealth,

State, Territory or country

Assisting in the prevention,

investigation or prosecution of a

crime against that law

Australian Taxation Office

Protecting public revenue

Limits on use of information disclosed

(3) A disclosure under this section of an answer given or document

produced in an

examination, or of information from such an

answer or document, is not admissible in evidence in civil or

criminal proceedings against the person who gave the answer or

produced the document except:

(a) in criminal proceedings for giving false or misleading

information; or

(b) in proceedings on an application under this Act; or

(d) in proceedings for enforcement of a

confiscation order; or

Other amend ments relating to proceeds of crime Schedule 2

Disclosure of information Part 4

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

(e) in the case of a document--in civil proceedings for or in

respect of a right or liability it confers or imposes.

Note:

This reflects section 198.

(4) A disclosure under this section of a document produced or made

available under a

production order by a natural person, or of

information from such a document, is not admissible in evidence in

criminal proceeding against the person, except in proceedings

under, or arising out of, section 137.1 or 137.2 of the Criminal

Code (false or misleading information or documents) in relation to

producing the document or making it available.

Note:

This reflects subsection 206(2).

(5) A disclosure under this section of:

(a) information given by a natural person under Part 4-1; or

(b) the giving of a document by a natural person under Part 4-1;

under Part 4-1;

is not admissible in evidence in

criminal proceedings against the

person, except proceedings under, or arising out of, section 137.1

or 137.2 of the Criminal Code (false or misleading information or

documents) in relation to giving the information or document.

Note:

This reflects subsection 271(2) (except paragraph 271(2)(c)).

Schedule 2 Other amendments relating to proceeds of crime

Part 5 Legal aid costs

46 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

Part 5

Legal aid costs

Proceeds of Crime Act 2002

68 Section 292

Repeal the section.

69 Subsections 293(1), (2) and (3)

Repeal the subsections, substitute:

(1) This section applies if:

(a) a

legal aid commission incurred (before, on or after the

commencement of this subsection) legal costs for:

(i) representing a person whose property was, at the time of

the representation, covered by a

restraining order in

proceedings under this Act; or

(ii) representing a person, who was a

suspect at the time of

the representation and whose property was at that time

covered by a restraining order, in proceedings for

defending any criminal charge against the person; and

(b) the commission has given (before, on or after the

commencement of this subsection) the

Official Trustee a bill

for the costs; and

correct.

(2) The

Official Trustee must pay the legal costs (according to the

bill) to the

legal aid commission out of the

Confiscated Assets

Account, subject to subsection (2A).

(2A) If the

Official Trustee is satisfied that:

(a) the balance of the

Confiscated Assets Account is insufficient

to pay the legal costs; and

(b) property of the person is covered by the

restraining order;

the Official Trustee must pay the legal costs (according to the bill)

to the

legal aid commission out of that property covered by the

order, to the extent possible.

(3) If the

Official Trustee pays an amount to the

legal aid

commission under this section and property of the person is

Other amend ments relating to proceeds of crime Schedule 2

Legal aid costs Part 5

Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. , 2009

covered by a

restraining order, the person must pay the

Commonwealth an amount equal to the lesser of the following (or

either of them if they are the same):

(a) the amount paid to the legal aid commission;

(b) the value of the person's property covered by the restraining

order.

Note:

The heading to section 293 is replaced by the heading "Payments to legal aid

commissions for representing suspects and other persons".

70 Division 1 of Part 4-4

Repeal the Division.

71 Application of amendments of Chapter 4

The amendments of Chapter 4 of the Proceeds of Crime Act 2002 made

by this Part apply in relation to costs that:

(a) were incurred by legal aid commissions before, on or after

the commencement of the amendments; and

(b) if they were incurred before that commencement, had not

been paid to the commissions before that commencement.

Schedule 2 Other amendments relating to proceeds of crime

Part 6 Technical amend ments

48 Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 No. ,

2009

Part 6

Technical amendments

Proceeds of Crime Act 2002

72 Subsection 37(1) (penalty)