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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Proceeds
of Crime Bill 2002
No. ,
2002
(Justice and
Customs)
A Bill for an Act to provide for
confiscation of the proceeds of crime, and for other
purposes
Contents
A Bill for an Act to provide for confiscation of the
proceeds of crime, and for other purposes
The Parliament of Australia enacts:
This
Act may be cited as the Proceeds of Crime Act 2002.
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the time specified in
column 2 of the table.
|
Commencement information |
||
|---|---|---|
|
Column 1 |
Column 2 |
Column 3 |
|
Provision(s) |
Commencement |
Date/Details |
|
1. Sections 1 and 2 and anything in this Act not elsewhere covered by
this table |
The day on which this Act receives the Royal Assent |
|
|
2. Sections 3 to 338 |
A single day to be fixed by Proclamation, subject to
subsection (3) |
|
Note: This table relates only to the provisions of this Act
as originally passed by 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 is for additional information that is not part
of this Act. This information may be included in any published version of this
Act.
(3) If a provision covered by item 2 of the table does not commence
under subsection (1) within the period of 6 months beginning on the day on
which it receives the Royal Assent, it commences on the first day after the end
of that period.
(1) Many of the terms in this Act are defined in the Dictionary in
Chapter 6.
(2) Most of the terms that are defined in the Dictionary in Chapter 6
are identified by an asterisk appearing at the start of the term: as in
“*proceeds”. The footnote with the
asterisk contains a signpost to the Dictionary.
(3) An asterisk usually identifies the first occurrence of a term in a
section (if not divided into subsections), subsection or definition. Later
occurrences of the term in the same provision are not usually
asterisked.
(4) Terms are not asterisked in headings, notes, examples, explanatory
tables, guides, outline provisions or diagrams.
(5) If a term is not identified by an asterisk, disregard that fact in
deciding whether or not to apply to that term a definition or other
interpretation provision.
(6) The following basic terms used throughout the Act are not identified
with an asterisk:
|
Terms that are not identified |
||
|---|---|---|
|
Item |
This term: |
is defined in: |
|
1 |
charged |
section 338 |
|
2 |
convicted |
section 331 |
|
3 |
deal |
section 338 |
|
4 |
derived |
section 336 |
|
5 |
property |
section 338 |
Chapter 2 of the Criminal Code applies to all offences
against this Act.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
The principal objects of this Act are:
(a) to deprive persons of the *proceeds
of offences, the *instruments of offences, and
*benefits derived from offences, against the
laws of the Commonwealth or the *non-governing
Territories; and
(b) to deprive persons of *literary
proceeds derived from the commercial exploitation of their notoriety from having
committed offences; and
(c) to punish and deter persons from breaching laws of the Commonwealth or
the non-governing Territories; and
(d) to prevent the reinvestment of proceeds, instruments, benefits and
literary proceeds in further criminal activities; and
(e) to enable law enforcement authorities effectively to trace proceeds,
instruments, benefits and literary proceeds; and
(f) to give effect to Australia’s obligations under the Council of
Europe Convention on Laundering, Search, Seizure and Confiscation of the
Proceeds from Crime, and other international agreements relating to proceeds of
crime; and
(g) to provide for confiscation orders and restraining orders made in
respect of offences against the laws of the States or the
*self-governing Territories to be enforced in
the other Territories.
This Act establishes a scheme to confiscate the proceeds of crime. It
does this by:
(a) setting out in Chapter 2 processes by which confiscation can
occur; and
(b) setting out in Chapter 3 ways in which Commonwealth law
enforcement agencies can obtain information relevant to these processes;
and
(c) setting out in Chapter 4 related administrative
matters.
It concludes with miscellaneous provisions and with definitions and other
interpretive material.
Chapter 2 sets out 5 processes relating to confiscation:
(a) restraining orders prohibiting disposal of or dealing with property
(see Part 2-1); and
(b) forfeiture orders under which property is forfeited to the
Commonwealth (see Part 2-2); and
(c) forfeiture of property to the Commonwealth on conviction of a serious
offence (see Part 2-3); and
(d) pecuniary penalty orders requiring payment of amounts based on
benefits derived from committing offences (see Part 2-4); and
(e) literary proceeds orders requiring payment of amounts based on
literary proceeds relating to offences (see Part 2-5).
Chapter 3 sets out 5 ways to obtain information:
(a) examining any person about the affairs of people covered by
examination orders (see Part 3-1); and
(b) requiring people, under production orders, to produce
property-tracking documents or make them available for inspection (see
Part 3-2); and
(c) requiring financial institutions to provide information and documents
relating to accounts and transactions (see Part 3-3); and
(d) requiring financial institutions, under monitoring orders, to provide
information about transactions over particular periods (see Part 3-4);
and
(e) searching for and seizing tainted property or evidential material,
either under search warrants or in relation to conveyances (see
Part 3-5).
Chapter 4 sets out the following administrative matters:
(a) the powers and duties of the Official Trustee, which largely relate to
property that is subject to restraining orders (see Part 4-1);
(b) the provision of legal assistance (see Part 4-2);
(c) the Confiscated Assets Account (see Part 4-3);
(d) charges over restrained property for payment of certain amounts (see
Part 4-4);
(e) enforcement of interstate orders in certain Territories (see
Part 4-5).
Chapter 5 deals with miscellaneous matters.
Chapter 6 contains the Dictionary, which sets out a list of all the
terms that are defined in this Act. It also sets out the meanings of some
important concepts.
(1) This Act binds the Crown in right of the Commonwealth, each of the
States and each of the *self-governing
Territories.
(2) This Act does not make the Crown liable to be prosecuted for an
offence.
This Act extends, except so far as the contrary intention
appears:
(a) to acts, matters and things outside
*Australia, whether or not in or over a foreign
country; and
(b) to all persons, irrespective of their nationality or
citizenship.
This Act applies in relation to:
(a) an offence committed at any time (whether or not any person is
convicted of the offence); and
(b) a person’s conviction of an offence at any time;
whether the offence or conviction occurred before or after the commencement
of this Act.
It is the intention of the Parliament that this Act is not to apply to
the exclusion of a law of a State or Territory to the extent that the law is
capable of operating concurrently with this Act.
Restraining orders can be made against property, in relation to certain
offences, on grounds that relate to possible forfeiture or confiscation orders
relating to those offences. (There is not always a requirement that a person has
been convicted of such an offence.)
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:
(c) the *DPP applies for the order;
and
(d) a person has been convicted of, or has been charged with, an
*indictable offence, or it is proposed that he
or she be charged with an indictable offence; and
(e) any affidavit requirements in subsection (3) for the application
have been met; and
(f) (unless there are no such requirements) the court is satisfied that
the *authorised officer who made the affidavit
holds the suspicion or suspicions stated in the affidavit on reasonable
grounds.
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 property of the suspect other than specified property;
(c) 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;
(d) specified property of another person (whether or not that other
person’s identity is known) that is
*proceeds of the offence or an
*instrument of the offence.
Affidavit requirements
(3) The application for the order must be supported by an affidavit of an
*authorised officer stating:
(a) if the *suspect has not been
convicted of an indictable offence—that the authorised officer suspects
that the suspect committed the offence; and
(b) if the application is to restrain property of a person other than the
suspect—that the authorised officer suspects that:
(i) the property is subject to the
*effective control of the suspect; or
(ii) the property is *proceeds of the
offence or an *instrument of the
offence.
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 in relation to an
*indictable offence that is not a
*serious offence 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.
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:
(c) the *DPP applies for the order;
and
(d) there are reasonable grounds to suspect that:
(i) a person has committed a *serious
offence; and
(ii) if the offence is not a *terrorism
offence—the offence was committed within the 6 years preceding the
application, or since the application was made; 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.
Note: A court can refuse to make a restraining order if the
Commonwealth refuses to give an undertaking: see
section 21.
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 property of the suspect other than specified property;
(c) 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;
(d) specified property of another person (whether or not that other
person’s identity is known) that is:
(i) in any case—*proceeds of the
offence; or
(ii) if the offence to which the order relates is a
*terrorism offence—an
*instrument of the offence.
Affidavit requirements
(3) The application for the order must be supported by an affidavit of an
*authorised officer stating:
(a) that:
(i) the authorised officer suspects that the
*suspect committed the offence within the 6
years preceding the application, or since the application was made; or
(ii) the offence is a *terrorism offence;
and
(b) if the application is to restrain property of a person other than the
suspect—that the authorised officer suspects that:
(i) the property is subject to the
*effective control of the suspect; or
(ii) the property is *proceeds of the
offence.
The affidavit must include the grounds on which the
*authorised officer holds those
suspicions.
Restraining order need not be based on commission of a particular
offence
(4) The reasonable grounds referred to in paragraph (1)(d) need not
be based on a finding as to the commission of a particular
*serious offence.
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.
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:
(c) the *DPP applies for the order;
and
(d) there are reasonable grounds to suspect that:
(i) the property is the *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);
and
(ii) if the offence is not a *terrorism
offence—the offence was committed within the 6 years preceding the
application, or since the application was made; and
(e) the application for the order is supported by an affidavit of an
*authorised officer:
(i) stating that the authorised officer suspects that the property is
proceeds of the offence; and
(ii) including the grounds on which the
*authorised officer holds the suspicion;
and
(f) the court is satisfied that the
*authorised officer who made the affidavit
holds the suspicion stated in the affidavit on reasonable grounds.
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:
(a) in any case—*proceeds of the
offence; or
(b) if the offence to which the order relates is a
*terrorism offence—an
*instrument of the offence.
Refusal to make a restraining order
(3) Despite subsection (1), the court may refuse to make a
*restraining order in relation to an
*indictable offence that is not a
*serious offence 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.
Restraining order need not be based on commission of a particular
offence
(4) The reasonable grounds referred to in paragraph (1)(d) need not
be based on a finding as to the commission of a particular
*indictable offence.
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.
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:
(c) the *DPP applies for the order;
and
(d) there are reasonable grounds to suspect:
(i) that a person has committed an
*indictable offence, and that the person has
derived *literary proceeds in relation to the
offence; or
(ii) that a person has committed a
*foreign indictable offence, and that the
person has derived in *Australia literary
proceeds in relation to the offence; and
(e) any affidavit requirements in subsection (3) for the application
have been met; and
(f) (unless there are no such requirements) the court is satisfied that
the *authorised officer who made the affidavit
holds the suspicion or suspicions stated in the affidavit on reasonable
grounds.
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 property of the suspect other than specified property;
(c) 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 an
*authorised officer stating:
(a) if the *suspect has not been
convicted of the offence—that the authorised officer suspects that the
suspect committed the offence; and
(b) if subparagraph (1)(d)(i) applies—that the authorised
officer suspects that the suspect derived
*literary proceeds in relation to the offence;
and
(c) if subparagraph (1)(d)(ii) applies—that the authorised
officer suspects that the suspect derived in
*Australia literary proceeds in relation to the
offence; and
(d) if the application is to restrain property of a person other than the
suspect—that the authorised officer suspects that the property is subject
to the *effective control of the
suspect.
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 in relation to an
*indictable offence that is not a
*serious offence 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.
Restraining order need not be based on commission of a particular
offence
(5) The reasonable grounds referred to in paragraph (1)(d) need not
be based on a finding as to the commission of a particular
*indictable offence or
*foreign indictable offence (as the case
requires).
Risk of property being disposed of etc.
(6) 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
(7) 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.
(1) The court may refuse to make a
*restraining order if the Commonwealth refuses
or fails to give the court an appropriate undertaking with respect to the
payment of damages or costs, or both, for the making and operation of the
order.
(2) The *DPP may give such an undertaking
on behalf of the Commonwealth.
(1) A *restraining order must only relate
to one *suspect.
Note: A restraining order might not relate to any suspect if
the person who is suspected of committing the offence is not known and the
restraining order only restrains proceeds of the offence. The restraining order
may also cover the property of one or more other persons who are not the
suspect.
(2) A *restraining order may relate to
more than one offence in relation to that
*suspect.
A *restraining order may be made subject
to conditions.
(1) The court may allow any one or more of the following to be met out of
property, or a specified part of property, covered by a
*restraining order:
(a) the reasonable living expenses of the person whose property is
restrained;
(b) the reasonable living expenses of any of the
*dependants of that person;
(c) the reasonable business expenses of that person;
(d) a specified debt incurred in good faith by that person.
(2) The court may only make an order under subsection (1)
if:
(a) the person whose property is restrained has applied for the order;
and
(b) the person has notified the *DPP in
writing of the application and the grounds for the application; and
(c) the person has disclosed all of his or her
*interests in property, and his or her
liabilities, in a statement on oath that has been filed in the court;
and
(d) the court is satisfied that the person cannot meet the expense or debt
out of property that is not covered by:
(i) a *restraining order; or
(ii) an *interstate restraining order;
or
(iii) a *foreign restraining order that
is registered under the *Mutual Assistance
Act.
(3) Property that is covered by:
(a) a *restraining order; or
(b) an *interstate restraining order;
or
(c) a *foreign restraining order that is
registered under the *Mutual Assistance
Act;
is taken, for the purposes of paragraph (2)(d), not to be covered by
the order if it would not be not reasonably practicable for the
*Official Trustee to take custody and control
of the property.
The *DPP may apply for a
*restraining order.
(1) Subject to subsection (4), the
*DPP must:
(a) give written notice of an application for a
*restraining order covering property to the
owner of the property (if the owner is known); and
(b) include with the notice a copy of the application and any affidavit
supporting the application.
(2) Subject to subsection (4), the
*DPP must also:
(a) give written notice of an application for a
*restraining order covering property to any
other person the DPP reasonably believes may have an
*interest in the property; and
(b) include with the notice:
(i) a copy of the application; and
(ii) a further notice that the person may request that the DPP give the
person a copy of any affidavit supporting the application.
The DPP must comply with any such request as soon as practicable.
(3) The court must not (unless subsection (4) applies) hear the
application unless it is satisfied that the owner of the property to which the
application relates has received reasonable notice of the application.
(4) The court must consider the application without notice having been
given if the *DPP requests the court to do
so.
(5) The court may, at any time before finally determining the application,
direct the *DPP to give or publish notice of
the application to a specified person or class of persons. The court may also
specify the time and manner in which the notice is to be given or
published.
(6) A person who claims an *interest in
property may appear and adduce evidence at the hearing of the
application.
To avoid doubt, the fact that the *DPP
may apply for a *restraining order under a
section of Division 1 against property in relation to an offence does not
prevent the DPP from applying for a
*restraining order under a different section of
Division 1 against that property in relation to that offence.
A witness who is giving evidence relating to an application for a
*restraining order is not required to answer a
question or produce a document if the court is satisfied that the answer or
document may prejudice the investigation of, or the prosecution of a person for,
an offence.
Note: In addition to this Division, section 44 provides
for property to be excluded from a restraining order on the giving of
satisfactory security.
(1) The court to which an application for a
*restraining order under section 17, 18 or
19 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 the relevant reason under
subsection (2) or (3) for excluding the property from the order
exists.
Note: Section 31A may prevent the court from hearing
the application until the DPP has had a reasonable opportunity to conduct an
examination of the applicant.
(2) The reasons for excluding specified property from a
*restraining order are:
(a) for a restraining order under section 17 if the offence, or any
of the offences, to which the order relates is a
*serious offence—the property is neither
*proceeds nor an
*instrument of
*unlawful activity; or
(b) for a restraining order under section 17 if paragraph (a)
does not apply—the property is neither proceeds nor an instrument of the
offence, or any offence, to which the order relates; or
(c) for a restraining order under section 18—the property is
neither:
(i) in any case—proceeds of unlawful activity; nor
(ii) if an offence to which the order relates is a
*terrorism offence—an
*instrument of any terrorism offence;
or
(d) for a restraining order under section 19—the property is
neither:
(i) in any case—proceeds of an
*indictable offence, a
*foreign indictable offence or an
*indictable offence of Commonwealth concern;
nor
(ii) if an offence to which the order relates is a
*terrorism offence—an
*instrument of any terrorism offence.
Note: One of the circumstances in which property ceases to
be proceeds of an offence or unlawful activity involves acquisition of the
property by an innocent third party for sufficient consideration: see paragraph
330(4)(a).
(3) If the offence, or each offence, to which a
*restraining order relates is a
*serious offence that is an offence against
section 15, 24, 29 or 31 of the Financial Transaction Reports Act
1988, a further reason for excluding property from the order is that each of
the following requirements is met:
(a) there are no reasonable grounds to suspect that the property is
*proceeds of the offence, or any of the
offences;
(b) there is a *suspect in relation to
the order, but he or she has not been convicted of, or charged with, the
offence, or any of the offences;
(c) the conduct in question was not for the purpose of, in preparation
for, or in contemplation of, any other
*indictable offence, any
*State indictable offence or any
*foreign indictable offence;
(d) the property could not have been covered by a restraining order if
none of the offences had been serious offences.
(4) However, the court must not exclude property from a
*restraining order under section 17 or 18
unless it is also satisfied that neither a
*pecuniary penalty order nor a
*literary proceeds order could be made
against:
(a) the person who owns the property; or
(b) if the property is not owned by the
*suspect but is under his or her
*effective control—the suspect.
(1) A person whose property would be covered by a
*restraining order may apply to the court to
exclude specified property from the restraining order within 14 days after being
notified of the application for the order.
(2) The person must give written notice to the
*DPP of both the application and the grounds on
which the exclusion is sought.
(3) The *DPP may appear and adduce
evidence at the hearing of the application.
(4) The *DPP must give the person notice
of any grounds on which it proposes to contest the application.
(1) A person may apply to the court to exclude specified property from the
*restraining order at any time after being
notified of the order.
(2) However, unless the court gives leave, the person cannot apply if he
or she:
(a) was notified of the application for the
*restraining order, but did not appear at the
hearing of that application; or
(b) appeared at the hearing of that application.
(3) The court may give the person leave to apply if the court is satisfied
that:
(a) if paragraph (2)(a) applies—the person had a good reason
for not appearing; or
(b) if paragraph (2)(b) applies—the person now has evidence
relevant to the person’s application that was not available to the person
at the time of the hearing; or
(c) in either case—there are other special grounds for granting the
leave.
(4) The person must give written notice to the
*DPP of both the application and the grounds on
which the exclusion is sought.
(5) The *DPP may appear and adduce
evidence at the hearing of the application.
(6) The *DPP must give the person notice
of any grounds on which it proposes to contest the application.
The court must not hear an application to exclude specified property from
the *restraining order if:
(a) the restraining order is in force; and
(b) the *DPP has not been given a
reasonable opportunity to conduct an
*examination of the applicant.
(1) If a court makes a *restraining order
covering property that a person owns, the *DPP
must give written notice of the order to the person.
Note: A person who was not notified of the application for a
restraining order may apply to revoke the restraining order within 28 days of
being notified of the order: see section 42.
(2) The *DPP must include a copy of the
application and any affidavit supporting the application with the notice (if
those documents have not already been given to the person).
(3) However, the court may order that:
(a) all or part of the application or affidavit is not to be given to the
person; or
(b) the *DPP delay giving the notice (and
the documents included with the notice) for a specified period;
if the DPP requests the court to do so and the court considers that this is
appropriate in order to protect the integrity of any investigation or
prosecution.
(4) If the court orders the *DPP to delay
giving the notice (and the documents included with the notice) for a specified
period, the DPP must give the notice as soon as practicable after the end of
that period.
(1) A *registration authority that keeps
a register of property of a particular kind may record in the register
particulars of a *restraining order covering
property of that kind.
(2) The *registration authority can only
do so on the application of the *DPP.
(3) Each person who subsequently deals with the property:
(a) is taken not to be acting in good faith for the purposes of
section 36; and
(b) is taken to have notice of the
*restraining order for the purposes of
section 37.
(1) If the *DPP has previously applied to
a *registration authority under section 34
for the recording in a register of particulars of a
*restraining order covering particular
property, the DPP must notify the registration authority if:
(a) the property is no longer covered by the order because it is excluded
from the order under section 29 or because the property covered by the
order is varied under section 39; or
(b) a condition to which a restraining order is subject is varied under
section 39.
(2) The notice must be given within a reasonable time after the order
under section 39 is made.
(1) The *DPP may apply to the court to
set aside a disposition or dealing with property that contravenes a
*restraining order if that disposition or
dealing was:
(a) not for *sufficient consideration;
or
(b) not in favour of a person who acted in good faith.
(2) The *DPP must give, to each party to
the disposition or dealing, written notice of both the application and the
grounds on which it seeks the setting aside of the disposition or
dealing.
(3) The court may:
(a) set aside the disposition or dealing from the day it occurred;
or
(b) set aside the disposition or dealing from the day on which the order
is made and declare the rights of any persons who acquired
*interests in the property on or after the day
of the disposition or dealing and before the day on which the order is
made.
(1) A person is guilty of an offence if:
(a) the person disposes of, or otherwise deals with, property;
and
(b) the person knows that, or is reckless as to the fact that, the
property is covered by a *restraining order;
and
(c) the disposition or dealing contravenes the order.
Maximum penalty: Imprisonment for 5 years or 300 penalty units, or
both.
(2) A person is guilty of an offence if:
(a) the person disposes of, or otherwise deals with, property;
and
(b) the property is covered by a
*restraining order; and
(c) the disposition or dealing contravenes the order; and
(d) either:
(i) particulars of the order were recorded in a register under subsection
34(1); or
(ii) the person was given notice of the order under
section 33.
Maximum penalty: Imprisonment for 5 years or 300 penalty units, or
both.
(3) Strict liability applies to paragraphs (2)(b) and (c) and
subparagraph (2)(d)(i).
The court may order the *Official
Trustee to take custody and control of property, or specified property, covered
by a *restraining order if the court is
satisfied that this is required.
Note: Part 4-1 sets out the Official Trustee’s
powers over the property.
(1) The court that made a *restraining
order, or any other court that could have made the restraining order, may make
any ancillary orders that the court considers appropriate and, without limiting
the generality of this, the court may make any one or more of the following
orders:
(a) an order varying the property covered by the
*restraining order;
(b) an order varying a condition to which the restraining order is
subject;
(c) an order relating to an undertaking required under
section 21;
(d) an order directing the owner of the property (including, if the owner
is a body corporate, a specified *director of
the body corporate) to give a sworn statement to a specified person, within a
specified period, setting out particulars of, or dealings with, the
property;
(e) if the *Official Trustee is ordered
under section 38 to take custody and control of property:
(i) an order regulating the manner in which the Official Trustee may
exercise its powers or perform its duties under the restraining order;
or
(ii) an order determining any question relating to the property, including
a question relating to the liabilities of the owner or the exercise of powers or
the performance of duties of the Official Trustee; or
(iii) an order directing any person to do anything necessary or convenient
to enable the Official Trustee to take custody and control of the
property;
(f) an order giving directions about the operation of the restraining
order and any one or more of the following:
(i) a *forfeiture order that covers the
same property as the restraining order;
(ii) a *pecuniary penalty order or a
*literary proceeds order that relates to the
same offence as the restraining order;
(g) an order requiring a person whose property is covered by a restraining
order to do anything necessary or convenient to bring the property within the
jurisdiction.
Note: If there is a pecuniary penalty order that relates to
the same offence as a restraining order, the court may also order the Official
Trustee to pay an amount equal to the relevant pecuniary penalty out of property
covered by the restraining order: see section 282.
(2) The court can only make an ancillary order on the application
of:
(a) the *DPP; or
(b) the owner of the property covered by the order; or
(c) if the *Official Trustee was ordered
to take custody and control of the property—the Official Trustee;
or
(d) any other person who has the leave of the court.
(3) A person who applies for an ancillary order must give written notice
of the application to all other persons entitled to make such an
application.
(4) An ancillary order may be made:
(a) if it is made by the court that made the
*restraining order—when making the
restraining order; or
(b) in any case—at any time after the restraining order is
made.
(5) An order that is ancillary to a
*restraining order does not cease to have
effect merely because the restraining order, or part of it, ceases to be in
force under subsection 45(4) or (5).
Note: A restraining order ceases to be in force under those
subsections if a confiscation order covering the same property or relating to
the same offence is satisfied.
A person is guilty of an offence if:
(a) the court makes an order under paragraph 39(1)(g); and
(b) the person contravenes the order.
Maximum penalty: Imprisonment for 5 years or 300 penalty units, or
both.
Note: An order under paragraph 39(1)(g) requires a person
whose property is covered by a restraining order to do anything necessary or
convenient to bring the property within the jurisdiction.
A *restraining order is in force from
the time at which it is made.
(1) A person who was not notified of the application for a
*restraining order may, within 28 days after
being notified of the order, apply to the court to revoke the order.
(2) The applicant must give written notice to the
*DPP and the
*Official Trustee of both the application and
the grounds on which the revocation is sought.
(3) However, the *restraining order
remains in force until the court revokes the order.
(4) The *DPP may adduce additional
material to the court relating to the application to revoke the
*restraining order.
(5) The court may revoke the *restraining
order if satisfied that there are no grounds on which to make the order at the
time of considering the application to revoke the order.
If a *restraining order is revoked, the
*DPP must give written notice of the revocation
to:
(a) the owner of any property covered by the restraining order (if the
owner is known); and
(b) any other person the DPP reasonably believes may have an
*interest in the property.
However, the DPP need not give notice to the applicant for the
revocation.
(1) A court may:
(a) revoke a *restraining order that
covers a *suspect’s property;
or
(b) exclude specified property from such a restraining order;
if:
(c) the suspect applies to the court to revoke the order or exclude the
property; and
(d) the suspect gives written notice of the application to the
*DPP; and
(e) the suspect gives security that is satisfactory to the court to meet
any liability that may be imposed on the suspect under this Act.
(2) A court may:
(a) revoke a *restraining order that
covers the property of a person who is not a
*suspect; or
(b) exclude specified property from such a restraining order;
if:
(c) the person applies to the court to revoke the order or exclude the
property; and
(d) the person gives written notice of the application to the
*DPP; and
(e) the person gives an undertaking concerning the person’s property
that is satisfactory to the court.
Effect on restraining orders of withdrawal of charges, acquittals
etc.
(1) A *restraining order that relates to
one or more offences ceases to be in force 28 days after one of the following
occurs:
(a) the charge, or all of the charges, that relate to the restraining
order are withdrawn;
(b) the *suspect is acquitted of the
offence, or all of the offences, with which he or she was charged;
(c) the suspect’s conviction for the offence, or all of the
offences, of which he or she was convicted are
*quashed;
unless:
(d) there is a *confiscation order that
relates to the offence; or
(e) there is an application for such a confiscation order before the
court; or
(f) there is an application under:
(i) Division 6 of Part 2-2; or
(ii) Division 4 of Part 2-3; or
(iii) Division 5 of Part 2-4 or 2-5;
for confirmation of a forfeiture, or a confiscation order, that relates
to the offence; or
(g) the suspect is charged with a
*related offence.
Restraining orders if there is no conviction etc.
(2) A *restraining order ceases to be in
force if, within 28 days after the order was made:
(a) the *suspect has not been convicted
of, or charged with, the offence, or at least one offence, to which the
restraining order relates; and
(b) there is no *confiscation order
or application for a confiscation order that relates to the
offence.
Restraining orders and forfeiture orders etc.
(3) A *restraining order ceases to be in
force in respect of property covered by the restraining order if:
(a) either:
(i) the court refuses an application for a
*forfeiture order that would have
covered the property; or
(ii) the court excludes the property from a forfeiture order; or
(iii) a forfeiture order that covers the property is discharged or ceases
to have effect; or
(iv) the court excludes the property under section 94 from forfeiture
under Part 2-3; and
(b) in the case of a refusal of an application for a
*forfeiture order:
(i) the time for an appeal against the refusal has expired without an
appeal being lodged; or
(ii) an appeal against the refusal has lapsed; or
(iii) an appeal against the refusal has been dismissed and finally
disposed of; and
(c) no application for another
*confiscation order relating to:
(i) an offence to which the restraining order relates; or
(ii) a *related offence;
is yet to be determined; and
(d) no other confiscation order relating to such an offence is in
force.
(4) A *restraining order ceases to be in
force to the extent that property that it covers vests absolutely in the
Commonwealth under Division 4 of Part 2-2 or Division 1 of
Part 2-3.
Restraining orders, pecuniary penalty orders and literary proceeds
orders
(5) A *restraining order that relates to
one or more offences ceases to be in force in respect of property covered by the
restraining order if:
(a) a *pecuniary penalty order or a
*literary proceeds order relates to that
offence or those offences; and
(b) one or more of the following occurs:
(i) the pecuniary penalty order or the literary proceeds order is
satisfied;
(ii) the property is sold or disposed of to satisfy the pecuniary penalty
order or literary proceeds order;
(iii) the pecuniary penalty order or the literary proceeds order is
discharged or ceases to have effect.
Restraining orders and instruments owned by third parties
(6) Despite subsection (1), if:
(a) a *restraining order covers property
of a person who is not a *suspect;
and
(b) the property is an *instrument of an
offence to which the order relates; and
(c) the property is not *proceeds of such
an offence; and
(d) the property is not subject to the
*effective control of another person who is a
suspect in relation to the order;
the restraining order ceases to be in force in respect of that property if
the suspect has not been charged with the offence or a
*related offence within 28 days after the
restraining order is made.
Forfeiture orders can be made, forfeiting property to the Commonwealth, if
certain offences have been committed. (It is not always a requirement that a
person has been convicted of such an offence.)
Orders are made on the application of the DPP. Other orders can be made to
reduce the effect of forfeiture orders on grounds such as hardship to the
person’s dependants.
Note: If a person is convicted of a serious offence,
forfeiture can be automatic under Part 2-3. There is no need for a
forfeiture order.
(1) A court with *proceeds jurisdiction
must make an order that property specified in the order is forfeited to the
Commonwealth if:
(a) the *DPP applies for the order;
and
(b) the property to be specified in the order is covered by a
*restraining order under section 18 that
has been in force for at least 6 months; and
(c) there are reasonable grounds to suspect that:
(i) a person engaged in conduct constituting one or more
*serious offences; and
(ii) for each such suspected offence that is not a
*terrorism offence—the offence was
committed within the 6 years preceding the application, or since the application
was made.
Note: The order can be made before the end of the period of
6 months referred to in paragraph (1)(b) if it is made as a consent order:
see section 316.
(2) A finding of the court for the purposes of paragraph (1)(c) need
not be based on a finding as to the commission of a particular offence, and can
be based on a finding that some *serious
offence or other was committed.
(3) The raising of a doubt as to whether a person engaged in conduct
constituting a *serious offence is not of
itself sufficient to avoid a finding by the court under
paragraph (1)(c).
(1) A court with *proceeds jurisdiction
must make an order that property specified in the order is forfeited to the
Commonwealth if:
(a) the *DPP applies for the order;
and
(b) a person has been convicted of one or more
*indictable offences; and
(c) the court is satisfied that the property to be specified in the order
is *proceeds of one or more of the
offences.
(2) A court with *proceeds jurisdiction
may make an order that property specified in the order is forfeited to the
Commonwealth if:
(a) the *DPP applies for the order;
and
(b) a person has been convicted of one or more
*indictable offences; and
(c) subsection (1) does not apply; and
(d) the court is satisfied that the property to be specified in the order
is an *instrument of one or more of the
offences.
(3) In considering whether it is appropriate to make an order under
subsection (2) in respect of particular property, the court may have regard
to:
(a) any hardship that may reasonably be expected to be caused to any
person by the operation of the order; and
(b) the use that is ordinarily made, or was intended to be made, of the
property to be specified in the order; and
(c) the gravity of the offence or offences concerned.
Note: Section 52 limits the court’s power to make
a forfeiture order if one or more of the person’s convictions were due to
the person absconding.
(1) A court with *proceeds jurisdiction
must make an order that property specified in the order is forfeited to the
Commonwealth if:
(a) the *DPP applies for the order;
and
(b) the property to be specified in the order is covered by a
*restraining order that has been in force for
at least 6 months; and
(c) the court is satisfied that the property is
*proceeds of one or more of the following kinds
of offence:
(i) an *indictable offence;
(ii) a *foreign indictable
offence;
(iii) an *indictable offence of
Commonwealth concern; and
(d) the court is satisfied that each such offence that is not a
*terrorism offence was committed within the 6
years preceding the application for the restraining order, or since that
application was made; and
(e) the court is satisfied that the DPP has taken reasonable steps to
identify and notify persons with an *interest
in the property.
(2) A finding of the court for the purposes of
paragraph (1)(c):
(a) need not be based on a finding that a particular person committed any
offence; and
(b) need not be based on a finding as to the commission of a particular
offence, and can be based on a finding that some offence or other of a kind
referred to in paragraph (1)(c) was committed.
(3) Paragraph (1)(c) does not apply if the court is satisfied
that:
(a) no application has been made under Division 3 of Part 2-1
for the property to be excluded from the
*restraining order; or
(b) any such application that has been made has been withdrawn.
The court’s power to make a
*forfeiture order in relation to an offence is
not affected by the existence of another
*confiscation order in relation to that
offence.
Note: There are restrictions on the DPP applying for
forfeiture orders if previous applications for forfeiture etc. have already been
made: see section 60.
The fact that a person has been acquitted of an offence with which the
person has been charged does not affect the court’s power to make a
*forfeiture order under section 47 or 49
in relation to the offence.
If, because of paragraph 331(1)(d), a person is taken to have been
convicted of an *indictable offence, a court
must not make a *forfeiture order relating to
the person’s conviction unless:
(a) the court is satisfied, on the balance of probabilities, that the
person has *absconded; and
(b) either:
(i) the person has been committed for trial for the offence; or
(ii) the court is satisfied, having regard to all the evidence before the
court, that a reasonable jury, properly instructed, could lawfully find the
person guilty of the offence.
(1) A court cannot make a *forfeiture
order in respect of property if the court does not have jurisdiction with
respect to the recovery of property of that kind.
(2) A court may make a *forfeiture order
in respect of property even though, apart from section 314, the court does
not have jurisdiction with respect to property whose value equals the value of
that property.
(3) A reference in subsection (1) to a court having jurisdiction with
respect to the recovery of property includes a reference to the court having
jurisdiction, under a *corresponding law, to
make an *interstate forfeiture order in respect
of property.
If:
(a) the *DPP applies for:
(i) a *forfeiture order under
section 47 or 49 against particular property in relation to a
person’s commission of a *terrorism
offence; or
(ii) a forfeiture order under section 48 against particular property
in relation to a person’s conviction of an
*indictable offence; and
(b) evidence is given, at the hearing of the application, that the
property was in the person’s possession at the time of, or immediately
after, the person committed the offence;
then:
(c) if no evidence is given that tends to show that the property was not
used in, or in connection with, the commission of the offence—the court
must presume that the property was used in, or in connection with, the
commission of the offence; or
(d) in any other case—the court must not make a forfeiture order
against the property unless it is satisfied that the property was used or
intended to be used in, or in connection with, the commission of the
offence.
(1) In specifying an *interest in
property in a *forfeiture order, the court may
also specify other interests in the property (regardless of whose they are)
if:
(a) the amount received from disposing of the combined interests would be
likely to be greater than the amount received from disposing of each of the
interests separately; or
(b) disposing of the interests separately would be impracticable or
significantly more difficult than disposing of the combined interests.
(2) If the court so specifies other
*interests in the
*forfeiture order, the court may make such
ancillary orders as it thinks fit for the protection of a person having one or
more of those other interests. These ancillary orders may include:
(a) an order directing the Commonwealth to pay the person a specified
amount as the value of the person’s interest in the property; or
(b) an order directing that specified other interests in the property be
transferred to the person.
(3) In deciding whether to make an ancillary order, the court must have
regard to:
(a) the nature, extent and value of the person’s
*interest in the property concerned;
and
(b) if the court is aware that any other person claims an interest in the
property—the nature, extent and value of the interest claimed;
and
(c) any other matter that the court considers relevant.
The court must specify, in any
*forfeiture order it makes, the amount it
considers to be the value, at the time the order is made, of the property (other
than money) specified in the order.
A court that makes a *forfeiture order
against property may, if it is satisfied that:
(a) it would not be contrary to the public interest for a person’s
*interest in the property to be transferred to
the person; and
(b) there is no other reason why the person’s interest in the
property should not be transferred to that person;
by order:
(c) declare the nature, extent and value (as at the time when the order is
made) of the interest; and
(d) declare that the interest may be excluded, under section 89, from
the operation of the forfeiture order.
(1) If a court makes a *forfeiture order,
the court has power to give all directions that are necessary or convenient for
giving effect to the order.
(2) This includes, for a *forfeiture
order specifying *registrable property, a
direction to an officer of the court to do anything necessary and reasonable to
obtain possession of any document necessary for the transfer of the
property.
(1) The *DPP may apply for a
*forfeiture order.
(2) If the application relates to a person’s conviction of an
*indictable offence, the application must be
made before the end of the period of 6 months after the
*conviction day.
(1) The *DPP cannot, unless the court
gives leave, apply for a *forfeiture order
under a section of Division 1 in relation to an offence if:
(a) an application has previously been made:
(i) under this Division for an order under the same section of
Division 1; or
(ii) under another law of the Commonwealth (other than Division 1);
or
(iii) under a law of a *non-governing
Territory;
for the forfeiture or condemnation of the property in relation to the
offence; 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 property 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
(c) it is in the interests of justice to grant the leave.
(3) To avoid doubt:
(a) the *DPP may apply for a
*forfeiture order under a section of
Division 1 against property in relation to an offence even though an
application has previously been made under a different section of
Division 1 for forfeiture of that property in relation to that offence;
and
(b) the DPP may apply for a forfeiture order against property in relation
to an offence even though an application has previously been made for a
*pecuniary penalty order or a
*literary proceeds order in relation to that
offence.
(1) The *DPP must give written notice of
an application for a *forfeiture order
to:
(a) if the order is sought relating to a person’s conviction of an
offence—the person; and
(b) any person who claims an *interest in
property covered by the application; and
(c) any person whom the DPP reasonably believes may have an interest in
that property.
(2) The court hearing the application may, at any time before finally
determining the application, direct the *DPP to
give or publish notice of the application to a specified person or class of
persons. The court may also specify the time and manner in which the notice is
to be given or published.
(1) The court hearing an application for a
*forfeiture order may amend the
application:
(a) on application by the *DPP;
or
(b) with the consent of the DPP.
(2) However, the court must not amend the application to include
additional property in the application unless:
(a) the court is satisfied that:
(i) the property was not reasonably capable of identification when the
application was originally made; or
(ii) necessary evidence became available only after the application was
originally made; or
(b) the *forfeiture order applied for is
an order under section 47 or 49 and the court is satisfied that:
(i) including the additional property in the application for the order
might have prejudiced the investigation of, or the prosecution of a person for,
an offence; or
(ii) it is for any other reason appropriate to grant the application to
amend.
(3) On applying for an amendment to include additional property in the
application, the *DPP must give written notice
of the application to amend to any person whom the DPP reasonably believes may
have an *interest in that additional
property.
(4) If the *forfeiture order applied for
is an order under section 48, any person who claims an
*interest in that additional property may
appear and adduce evidence at the hearing of the application to amend.
The court to which an application for a
*forfeiture order is made in relation to an
offence may, on application by the *DPP,
dispense with the requirements to give notice to a person under subsections
61(1) and 62(3) if the court is satisfied that the person has
*absconded in connection with the
offence.
(1) Any person who claims an *interest in
property covered by an application for a
*forfeiture order may appear and adduce
evidence at the hearing of the application.
(2) If the application relates to a person’s conviction of an
*indictable offence, the court may, in
determining the application, have regard to:
(a) the transcript of any proceeding against the person for:
(i) that offence; or
(ii) if the person is taken to be convicted of that offence because of
paragraph 331(1)(c)—the other offence referred to in that paragraph;
and
(b) the evidence given in any such proceeding.
(3) The court may still make a
*forfeiture order if a person entitled to be
given notice of the relevant application fails to appear at the hearing of the
application.
If an application for a *forfeiture
order is made to a court before which a person was convicted of an
*indictable offence:
(a) the application may be dealt with by the court; and
(b) any power in relation to the relevant order may be exercised by the
court;
whether or not the court is constituted in the same way in which it was
constituted when the person was convicted of the indictable
offence.
Property specified in a *forfeiture
order vests absolutely in the Commonwealth at the time the order is
made.
(1) Despite section 66, if property specified in the
*forfeiture order is
*registrable property:
(a) that property vests in equity in the Commonwealth but does not vest in
the Commonwealth at law until the applicable registration requirements have been
complied with; and
(b) the *DPP has power, on behalf of the
Commonwealth, to do anything necessary or convenient to give notice of, or
otherwise protect, the Commonwealth’s equitable interest in that property;
and
(c) the Commonwealth is entitled to be registered as the owner of that
property; and
(d) the *Official Trustee has power, on
behalf of the Commonwealth, to do, or authorise the doing of, anything necessary
or convenient to obtain the registration of the Commonwealth as the
owner.
(2) Any action by the *DPP under
paragraph (1)(b) is not a dealing for the purposes of subsection
69(1).
(3) The *Official Trustee’s powers
under paragraph (1)(d) include executing any instrument required to be
executed by a person transferring an *interest
in property of that kind.
(1) Despite section 66, if a person:
(a) was, immediately before his or her death, the joint owner of property
specified in the *forfeiture order;
but
(b) died before the order was made, but:
(i) after the *DPP applied for the order;
or
(ii) while a *restraining order covering
the property was in force;
that property is taken to have vested in the Commonwealth immediately
before the person’s death.
(2) Any such *restraining order is also
taken to have continued to apply to the property as if the person had not
died.
(1) The Commonwealth, and persons acting on its behalf, can only dispose
of, or otherwise deal with, property specified in a
*forfeiture order after, and only if the order
is still in force at, the later of the following times:
(a) when:
(i) if the period provided for lodging an appeal against the order has
ended without such an appeal having been lodged—that period ends;
or
(ii) if an appeal against the order has been lodged—the appeal
lapses or is finally determined;
(b) if the order was made in relation to a person’s conviction of an
offence—when:
(i) if the period provided for lodging an appeal against the conviction
has ended without such an appeal having been lodged—that period ends;
or
(ii) if an appeal against the conviction has been lodged—the appeal
lapses or is finally determined.
(2) However, such disposals and dealings may occur earlier with the leave
of the court and in accordance with any directions of the court.
(3) For the purposes of paragraph (1)(b):
(a) if the person is to be taken to have been convicted of the offence
because of paragraph 331(1)(b)—an appeal against the finding of the person
guilty of the offence is taken to be an appeal against the conviction;
and
(b) if the person is to be taken to have been convicted of the offence
because of paragraph 331(1)(c)—an appeal against the person’s
conviction of the other offence referred to in that paragraph is taken to be an
appeal against the conviction.
(1) If the *forfeiture order is still in
force at the later time mentioned in subsection 69(1), the
*Official Trustee must, on the
Commonwealth’s behalf and as soon as practicable:
(a) dispose of any property specified in the order that is not money;
and
(b) apply:
(i) any amounts received from that disposal; and
(ii) any property specified in the order that is money;
to payment of its remuneration and other costs, charges and expenses of
the kind referred to in subsection 288(1) payable to or incurred by it in
connection with the disposal and with the
*restraining order that covered the property;
and
(c) credit the remainder of the money and amounts received to the
*Confiscated Assets Account as required by
section 296.
(2) However, if the *Official Trustee is
required to deal with property specified in a
*forfeiture order but has not yet
begun:
(a) the Minister; or
(b) a *senior Departmental officer
authorised by the Minister for the purposes of this subsection;
may direct that the property be alternatively disposed of, or otherwise
dealt with, as specified in the direction.
(3) Such a direction could be that property is to be disposed of in
accordance with the provisions of a specified law.
Note: The quashing of a conviction of an offence relating to
a forfeiture may prevent things being done under this section: see
section 86.
A person is guilty of an offence if:
(a) the person knows that a *forfeiture
order has been made in respect of *registrable
property; and
(b) the person disposes of, or otherwise deals with, the property before
the Commonwealth’s interest has been registered on the appropriate
register; and
(c) the forfeiture order has not been discharged.
Maximum penalty: Imprisonment for 5 years or 300 penalty units, or
both.
(1) The court making a *forfeiture order
specifying a *person’s property must make
another order directing the Commonwealth to pay a specified amount to a
*dependant of the person if:
(a) the forfeiture order is not to be made under section 48;
and
(b) the court is satisfied that:
(i) the forfeiture order would cause hardship to the dependant;
and
(ii) the specified amount would relieve that hardship; and
(iii) if the dependant is aged at least 18 years—the dependant had
no knowledge of the person’s conduct that is the subject of the forfeiture
order.
(2) The specified amount must not exceed the difference between:
(a) what the court considers is likely to be the amount received from
disposing of the *person’s property under
the *forfeiture order; and
(b) what the court considers is likely to be the sum of any payments of
the kind referred to in paragraph 70(1)(b) in connection with the forfeiture
order.
(3) An order under this section may relate to more than one of the
person’s *dependants.
(1) A court that made a *forfeiture
order, or that is hearing, or is to hear, an application (a forfeiture
application) for a forfeiture order, must make an order excluding
property from forfeiture (an exclusion order) if:
(a) a person applies for the exclusion order; and
(b) the forfeiture order, or the forfeiture application, specifies the
applicant’s property; and
(c) if the forfeiture order was (or the forfeiture order applied for would
be) made under section 47 or 49 and the applicant is the person on whose
commission of an offence the order was (or would be) based—the court is
satisfied that the property to be specified in the exclusion order is
neither:
(i) *proceeds of
*unlawful activity; nor
(ii) if an offence to which the order is (or would be) based is a
*terrorism offence—an
*instrument of any terrorism offence;
and
(d) if the forfeiture order was (or the forfeiture order applied for would
be) made under section 47 or 49 and the applicant is not the person on
whose commission of an offence the order was (or would be) based—the court
is satisfied that:
(i) the applicant was not, in any way, involved in the commission of any
of the offences to which the forfeiture order or forfeiture application relates;
and
(ii) the property to be specified in the exclusion order is not proceeds
of unlawful activity; and
(iii) if an offence to which the order is (or would be) based is a
terrorism offence—an instrument of any terrorism offence; and
(e) if the forfeiture order was (or the forfeiture order applied for would
be) made under section 48—the court is satisfied that:
(i) the applicant was not, in any way, involved in the commission of any
of the offences to which the forfeiture order or forfeiture application relates;
and
(ii) the property to be specified in the exclusion order is neither
proceeds nor an *instrument of any of those
offences.
(2) An *exclusion order must:
(a) specify the nature, extent and value (at the time of making the order)
of the property concerned; and
(b) direct that the property be excluded from the operation of the
relevant *forfeiture order; and
(c) if the property has vested (in law or equity) in the Commonwealth
under this Part and is yet to be disposed of—direct the Commonwealth to
transfer the property to the applicant; and
(d) if the property has vested (in law or equity) in the Commonwealth
under this Part and has been disposed of—direct the Commonwealth to pay
the applicant an amount equal to the value specified under
paragraph (a).
Before a forfeiture order has been made
(1) A person may apply for an *exclusion
order if a *forfeiture order that could specify
the *person’s property has been applied
for, but is yet to be made.
After a forfeiture order has been made
(2) A person cannot, unless the court gives leave, apply for an
*exclusion order after a
*forfeiture order specifying the
*person’s property has been made
if:
(a) he or she was given notice of the application for the forfeiture
order, but did not appear at the hearing of that application; or
(b) he or she appeared at the hearing of that application; or
(c) 6 months have elapsed since the forfeiture order was made.
(3) The court may give the person leave to apply if the court is satisfied
that:
(a) if paragraph (2)(a) applies—the person had a good reason
for not appearing; or
(b) if paragraph (2)(b) applies—the person now has evidence
relevant to the person’s application that was not available to the person
at the time of the hearing; or
(c) if paragraph (2)(c) applies—the person’s failure to
apply was not due to any neglect by the person; or
(d) there are other special grounds for giving the leave.
(1) An applicant for an *exclusion order
must give written notice to the *DPP of both
the application and the grounds on which the order is sought.
(2) The *DPP may appear and adduce
evidence at the hearing of the application.
(3) The *DPP must give the applicant
notice of any grounds on which it proposes to contest the application. However,
the DPP need not do so until it has had a reasonable opportunity to examine the
applicant under Part 3-1.
An application for an *exclusion order
must not be heard until the *DPP has had a
reasonable opportunity to examine the applicant under Part 3-1.
(1) A court that made a *forfeiture order
must make an order (a compensation order)
if:
(a) a person has applied for the compensation order; and
(b) the forfeiture order specifies the applicant’s property as
*proceeds of an offence to which the forfeiture
order relates; and
(c) the court is satisfied that, when the property first became proceeds
of that offence, a proportion of the value of the property was not acquired
using the proceeds of any offence.
(2) A *compensation order must:
(a) specify the proportion found by the court under paragraph (1)(c);
and
(b) direct the Commonwealth to:
(i) if the property has not been disposed of—dispose of the
property; and
(ii) pay the applicant an amount equal to that proportion of the
difference between the amount received from disposing of the property and the
sum of any payments of the kind referred to in paragraph 70(1)(b) in connection
with the *forfeiture order.
(1) A person whose property is specified in a
*forfeiture order may apply for a
*compensation order.
(2) However, if a person was given notice of an application for a
*forfeiture order, the person cannot apply for
a *compensation order relating to that
forfeiture order unless:
(a) the person applies for the compensation order within 6 months after
the forfeiture order was made; and
(b) the court gives leave.
(3) If a person was not given such notice, the person cannot apply for a
*compensation order relating to a
*forfeiture order unless:
(a) the person applies for the compensation order within 6 months after
the forfeiture order was made; or
(b) the court gives leave.
(1) An applicant for a *compensation
order must give written notice to the *DPP of
both the application and the grounds on which the order is sought.
(2) The *DPP may appear and adduce
evidence at the hearing of the application.
(3) The *DPP must give the applicant
notice of any grounds on which it proposes to contest the
application.
A *forfeiture order made under
section 47 or 49 against a person in relation to an offence is not affected
if:
(a) having been charged with the offence, the person is acquitted;
or
(b) the person is convicted of the offence and the conviction is
subsequently *quashed.
(1) A *forfeiture order made under
section 48 in relation to a person’s conviction of an offence is
discharged if:
(a) the person’s conviction of the offence is subsequently
*quashed (whether or not the order relates to
the person’s conviction of other offences that have not been quashed);
and
(b) the *DPP does not, within 14 days
after the conviction is quashed, apply to the court that made the order for the
order to be confirmed.
(2) However, unless and until a court decides otherwise on such an
application, the *quashing of the conviction
does not affect the *forfeiture
order:
(a) for 14 days after the conviction is quashed; and
(b) if the *DPP makes such an
application.
(1) The *DPP must give written notice of
an application for confirmation of the
*forfeiture order to:
(a) the person whose conviction was
*quashed; and
(b) any person who claims, or prior to the forfeiture claimed, an
*interest in property covered by the order;
and
(c) any person whom the DPP reasonably believes may have had an interest
in that property before the forfeiture.
Note: If the DPP applies for confirmation of a forfeiture
order, it can also apply for an examination order under
Part 3-1.
(2) The court hearing the application may, at any time before finally
determining the application, direct the *DPP to
give or publish notice of the application to a specified person or class of
persons. The court may also specify the time and manner in which the notice is
to be given or published.
(1) Any person who claims an *interest in
property covered by the *forfeiture order may
appear and adduce evidence at the hearing of the application for confirmation of
the order.
(2) The court may, in determining the application, have regard
to:
(a) the transcript of any proceeding against the person for:
(i) the offence of which the person was convicted; or
(ii) if the person was taken to be convicted of that offence because of
paragraph 331(1)(c)—the other offence referred to in that
paragraph;
including any appeals relating to the conviction; and
(b) the evidence given in any such proceeding.
(1) The court may confirm the *forfeiture
order if the court is satisfied that:
(a) it could have made a forfeiture order under section 47 in
relation to the offence in relation to which the person’s conviction was
*quashed if, when the
*DPP applied for an order under
section 48, it had instead applied for an order under section 47;
or
(b) it could have made a forfeiture order under section 49 in
relation to the offence in relation to which the person’s conviction was
quashed if, when the DPP applied for an order under section 48, it had
instead applied for an order under section 49.
(2) For the purposes of paragraph (1)(a), the court is to treat any
relevant conduct of the person (other than conduct that constitutes a
*terrorism offence) as having been made within
the period of 6 years referred to in paragraph 47(1)(c).
(1) If the court confirms the *forfeiture
order under paragraph 84(1)(a), the order is taken not to be affected by the
*quashing of the person’s conviction of
the offence.
(2) If the court confirms the *forfeiture
order under paragraph 84(1)(b):
(a) to the extent that the order covers property that is
*proceeds of the offence, the order is taken
not to be affected by the *quashing of the
person’s conviction of the offence; but
(b) to the extent that the order covers property that is not proceeds of
the offence, the order is discharged.
(3) If the court decides not to confirm the
*forfeiture order, the order is
discharged.
During the period:
(a) starting on the day after the person’s conviction of the offence
was *quashed; and
(b) ending when the court decides whether to confirm the
*forfeiture order;
the *Official Trustee must not do any of
the things required under section 70 in relation to property covered by the
order or amounts received from disposing of such property.
(1) This section applies in relation to particular property if:
(a) a *forfeiture order that covered that
property is discharged by a court hearing an appeal against the making of the
order; or
(b) a forfeiture order that covered that property is discharged under
section 81 or subsection 85(3); or
(c) a forfeiture order that covered the property is discharged under
subsection 85(2) in relation to that property.
(2) The *DPP must, as soon as
practicable, give written notice of the discharge to any person the DPP
reasonably believes may have had an *interest
in that property immediately before the order was made.
(3) The *DPP must, if required by a
court, give or publish notice of the discharge to a specified person or class of
persons. The court may also specify the time and manner in which the notice is
to be given or published.
(4) A notice given under this section must include a statement to the
effect that a person claiming to have had an
*interest in that property may apply under
section 88 for the transfer of the interest, or its value, to the
person.
(1) The Minister must arrange for:
(a) if property specified in a
*forfeiture order is vested in the
Commonwealth—an *interest in the property
to be transferred to a person claiming to have had the interest in the property
immediately before the order was made; or
(b) if property specified in a forfeiture order is no longer vested in the
Commonwealth—an amount equal to the value of the interest in the property
to be paid to the person;
if:
(c) the forfeiture order has been discharged in relation to the
property:
(i) by a court hearing an appeal against the making of the order;
or
(ii) under section 81 or 85; and
(d) the person applies to the Minister, in writing, for the transfer of
the interest to the person; and
(e) the person had that interest in the property immediately before the
order was made.
(2) If the Minister must arrange for the property to be transferred, the
Minister may also, on behalf of the Commonwealth, do or authorise the doing of
anything necessary or convenient to give effect to the transfer.
(3) Without limiting subsection (2), things that may be done or
authorised under that subsection include:
(a) executing any instrument; and
(b) applying for registration of an
*interest in the property on any appropriate
register.
(1) If a court:
(a) makes a *forfeiture order against
property; and
(b) makes an order under section 57 in respect of an
*interest in the property;
then:
(c) the payment to the Commonwealth, while the interest is still vested in
the Commonwealth, of the amount specified in the order under section 57 as
the value of the interest discharges the forfeiture order to the extent to which
it relates to the interest; and
(d) the Minister:
(i) must arrange for the interest to be transferred to the person in whom
it was vested immediately before the property was forfeited to the Commonwealth;
and
(ii) may, on behalf of the Commonwealth, do or authorise the doing of
anything necessary or convenient to effect the transfer.
(2) Without limiting subparagraph (1)(d)(ii), things that may be done
or authorised under that subparagraph include:
(a) executing any instrument; and
(b) making an application for registration of an
*interest in the property on any appropriate
register.
The Minister must arrange for an
*interest in property to be transferred to a
person (the purchaser) if:
(a) the property is forfeited to the Commonwealth under this Part;
and
(b) the interest is required to be transferred to the purchaser under
subsection 88(1) or 89(1), or under a direction under paragraph 73(2)(c);
and
(c) the purchaser’s interest in the property, immediately before the
forfeiture took place, was not the only interest in the property; and
(d) the purchaser gives written notice to each other person who had an
interest in the property immediately before the forfeiture took place
that:
(i) the purchaser intends to purchase that other interest from the
Commonwealth; and
(ii) the person served with the notice may, within 21 days after receiving
the notice, lodge a written objection to the purchase of that interest with the
Minister; and
(e) no person served with notice under paragraph (d) in relation to
that interest lodges a written objection to the purchase of that interest with
the Minister within the period referred to in that paragraph; and
(f) the purchaser pays to the Commonwealth, while that interest is still
vested in the Commonwealth, an amount equal to the value of that
interest.
If a person is convicted of a serious offence, property that is subject to
a restraining order relating to the offence is forfeited to the Commonwealth
unless the property is excluded from forfeiture.
There are cases in which forfeited property can be recovered from the
Commonwealth.
Note: Property can be forfeited in relation to a serious
offence, without a conviction, under a forfeiture order under
Part 2-2.
(1) Property is forfeited to the Commonwealth at the end of the period
applying under subsection (3) if:
(a) the person is convicted of a *serious
offence; and
(b) either:
(i) at the end of that period, the property is covered by a
*restraining order against the person that
relates to the offence; or
(ii) the property was covered by such a restraining order against the
person, but the order was revoked under section 44 or the property was
excluded from the order under that section; and
(c) the property is not subject to an order under section 94
excluding the property from forfeiture under this Part.
(2) It does not matter whether:
(a) the *restraining order was made
before or after the person’s conviction of the
*serious offence; or
(b) immediately before forfeiture, the property is the
*person’s property or another
person’s property.
(3) The period at the end of which the property is forfeited is:
(a) the 6 month period starting on the day of the conviction; or
(b) if an *extension order is in force at
the end of that period—the extended period relating to that extension
order.
(4) This section does not apply if the person is taken to have been
convicted of the offence because the person
*absconded in connection with the
offence.
(5) A *restraining order in relation to a
*related offence with which the person has been
charged, or is proposed to be charged, is taken, for the purposes of this
section, to be a restraining order in relation to the offence of which the
person was convicted.
(6) If:
(a) under section 42, a *restraining
order that covered particular property is revoked, or particular property is
excluded from a restraining order; and
(b) the security referred to in paragraph 42(1)(e), or the undertaking
referred to in paragraph 42(2)(e), in connection with the revocation or
exclusion is still in force;
the property is taken, for the purposes of this section, to be covered by
the restraining order.
(1) The court that made the *restraining
order referred to in paragraph 92(1)(b) may make an order (an extension
order) specifying an extended period for the purposes of subsection
92(3) if:
(a) an application for the order is made within 6 months after the start
of the day of the relevant conviction; and
(b) the applicant has also applied to the court under section 31 to
exclude property from the restraining order; and
(c) the court is satisfied that the applicant made the application under
section 31 without undue delay, and has since diligently followed up that
application.
The extended period specified must end no later than 15 months from the
start of the day of the relevant conviction.
(2) The *extension order stops being in
force if the application under section 31 is finally determined before the
end of the 6 month period starting on the day of the relevant
conviction.
(3) The extended period ends if the application under section 31 is
finally determined before the end of that period.
(1) The court that made the *restraining
order referred to in paragraph 92(1)(b) may make an order excluding particular
property from forfeiture under this Part if:
(a) the person referred to in paragraph 92(1)(a) applies for an order
under this section; and
(b) the property is covered by the restraining order; and
(c) the person owns the property; and
(d) the person has been convicted of a
*serious offence to which the restraining order
relates; and
(e) the court is satisfied that the property is neither
*proceeds of
*unlawful activity nor an
*instrument of unlawful activity; and
(f) the court is satisfied that the defendant’s interest in the
property was lawfully acquired.
(2) To avoid doubt, an order under this section cannot be made in relation
to property if the property has already been forfeited under this
Part.
(3) The person must give written notice to the
*DPP of both the application and the grounds on
which the order is sought.
(4) The *DPP may appear and adduce
evidence at the hearing of the application.
(5) The *DPP must give the applicant
notice of any grounds on which it proposes to contest the application.
The court that made the *restraining
order referred to in paragraph 92(1)(b) may declare that particular property has
been forfeited under this Part if:
(a) the *DPP applies to the court for the
declaration; and
(b) the court is satisfied that that property is forfeited under this
Part.
Property forfeited under section 92 vests absolutely in the
Commonwealth at the time of the forfeiture.
(1) Despite section 96, if property forfeited under section 92
is *registrable property:
(a) that property vests in equity in the Commonwealth but does not vest in
the Commonwealth at law until the applicable registration requirements have been
complied with; and
(b) the *DPP has power, on behalf of the
Commonwealth, to do anything necessary or convenient to give notice of, or
otherwise protect, the Commonwealth’s equitable interest in that property;
and
(c) the Commonwealth is entitled to be registered as the owner of that
property; and
(d) the *Official Trustee has power, on
behalf of the Commonwealth, to do, or authorise the doing of, anything necessary
or convenient to obtain the registration of the Commonwealth as the
owner.
(2) Any action by the *DPP under
paragraph (1)(b) is not a dealing for the purposes of subsection
99(1).
(3) The *Official Trustee’s powers
under paragraph (1)(d) include executing any instrument required to be
executed by a person transferring an *interest
in property of that kind.
Despite section 96, if:
(a) a person who is convicted of a
*serious offence was, immediately before his or
her death, the joint owner of property; and
(b) the period that would apply under subsection 92(3) if the property
were subject to forfeiture under section 92 in relation to the conviction
had not ended before his or her death; and
(c) if that period had ended immediately before his or her death—the
property would have been forfeited under section 92;
the property is taken to have vested in the Commonwealth immediately before
his or her death.
(1) The Commonwealth, and persons acting on its behalf, can dispose of, or
otherwise deal with, property forfeited under section 92 in relation to a
person’s conviction of a *serious offence
if and only if:
(a) the period applying under subsection (3) has come to an end;
and
(b) the conviction has not been *quashed
by that time.
(2) However, such disposals and dealings may occur earlier with the leave
of the court and in accordance with any directions of the court.
(3) The period at the end of which the Commonwealth, and persons acting on
its behalf, can dispose of or otherwise deal with the property is:
(a) if the conviction is one in relation to which neither paragraph
331(1)(b) nor (c) applies, the period ending:
(i) if the period provided for lodging an appeal against the conviction
has ended without such an appeal having been lodged—at the end of that
period; or
(ii) if an appeal against the conviction has been lodged—when the
appeal lapses or is finally determined; or
(b) if the person is taken to have been convicted because of paragraph
331(1)(b), the period ending:
(i) if the period provided for lodging an appeal against the finding of
the person guilty of the offence has ended without such an appeal having been
lodged—at the end of that period; or
(ii) if an appeal against the finding of the person guilty of the offence
has been lodged—when the appeal lapses or is finally determined;
or
(c) if the person is taken to have been convicted because of paragraph
331(1)(c), the period ending:
(i) if the period provided for lodging an appeal against the
person’s conviction of the other offence referred to in that paragraph has
ended without such an appeal having been lodged—at the end of that period;
or
(ii) if an appeal against the person’s conviction of the other
offence referred to in that paragraph has been lodged—when the appeal
lapses or is finally determined.
(1) If subsection 99(1) no longer prevents disposal of or dealing with
particular property forfeited under section 92, the
*Official Trustee must, on the
Commonwealth’s behalf and as soon as practicable:
(a) dispose of any of the forfeited property that is not money;
and
(b) apply:
(i) any amounts received from that disposal; and
(ii) any of the forfeited property that is money;
to payment of its remuneration and other costs, charges and expenses of
the kind referred to in subsection 288(1) payable to or incurred by it in
connection with the disposal and with the
*restraining order that covered the property;
and
(c) credit the remainder of the money and amounts received to the
*Confiscated Assets Account as required by
section 296.
(2) However, if the *Official Trustee has
not yet begun to deal with property forfeited under section 92, as required
by this section:
(a) the Minister; or
(b) a *senior Departmental officer
authorised by the Minister for the purposes of this subsection;
may direct that the property be disposed of, or otherwise dealt with, as
specified in the direction.
(3) Such a direction could be that property is to be disposed of in
accordance with the provisions of a specified law.
Note: The quashing of a conviction of an offence relating to
the forfeiture will prevent things being done under this section: see
section 112.
(1) The Minister may give all directions that are necessary or convenient
to realise the Commonwealth’s *interest
in property forfeited under section 92.
(2) This includes, for *registrable
property forfeited under section 92, directing an officer of the Department
or a *police officer to do anything necessary
and reasonable to obtain possession of any document necessary for the transfer
of the property.
(1) If property is forfeited to the Commonwealth under section 92,
the court that made the *restraining order
referred to in paragraph 92(1)(b) may, if:
(a) a person who claims an *interest in
the property applies under section 104 for an order under this section;
and
(b) the court is satisfied that the grounds set out in subsection (2)
or (3) exist;
make an order:
(c) declaring the nature, extent and value of the applicant’s
interest in the property; and
(d) either:
(i) if the interest is still vested in the Commonwealth—directing
the Commonwealth to transfer the interest to the applicant; or
(ii) declaring that there is payable by the Commonwealth to the applicant
an amount equal to the value declared under paragraph (c).
(2) An order under this section may be made if:
(a) the applicant was not, in any way, involved in the commission of the
offence to which the forfeiture relates; and
(b) the applicant’s *interest in
the property is not subject to the *effective
control of the person whose conviction caused the forfeiture; and
(c) the applicant’s interest in the property is not
*proceeds of the offence or an
*instrument of the offence.
(3) An order under this section may also be made if:
(a) the property was not used in, or in connection with, any
*unlawful activity and was not derived or
realised, directly or indirectly, by any person from any unlawful activity;
and
(b) the applicant acquired the property lawfully; and
(c) the applicant is not the person convicted of the offence to which the
forfeiture relates.
If property is forfeited to the Commonwealth under section 92, the
court that made the *restraining order referred
to in paragraph 92(1)(b) may, if:
(a) a person who claims an *interest in
the property applies under section 104 for an order under this section;
and
(b) the court is satisfied that:
(i) it would not be contrary to the public interest for the interest to be
transferred to the person; and
(ii) there is no other reason why the interest should not be transferred
to the person;
make an order:
(c) declaring the nature, extent and value (as at the time when the order
is made) of the interest; and
(d) declaring that the forfeiture ceases to operate in relation to the
interest if payment is made under section 105.
(1) An application for an order under section 102 or 103 must, unless
the court gives leave under subsection (2), be made before the end of the
period of 6 months commencing on the day on which the property to which the
application relates is forfeited to the Commonwealth.
(2) The court may give a person leave to apply after the end of that
period if the court is satisfied that the delay in making the application is not
due to neglect on the part of the applicant.
(3) A person who was given notice of:
(a) proceedings for the application for the
*restraining order by virtue of which the
property is forfeited; or
(b) the making of the restraining order;
must not apply for an order under section 102 or 103 relating to the
property unless the court gives leave under subsection (4).
(4) The court may give a person leave to apply if the court is satisfied
that the person’s failure to seek to have the property excluded from the
forfeiture by an order under section 94 was not due to any neglect on the
part of the applicant.
(1) If:
(a) property is forfeited to the Commonwealth under section 92;
and
(b) a court makes an order under section 103 in respect of an
*interest in the property; and
(c) the amount specified in the order as the value of the interest is paid
to the Commonwealth, while the interest is still vested in the
Commonwealth;
section 92 ceases to apply in relation to the interest, and the
Minister:
(d) must arrange for the interest to be transferred to the person in whom
it was vested immediately before the property was forfeited to the Commonwealth;
and
(e) may, on behalf of the Commonwealth, do or authorise the doing of
anything necessary or convenient to effect the transfer.
(2) Without limiting paragraph (1)(e), things that may be done or
authorised under that paragraph include:
(a) executing any instrument; and
(b) applying for registration of an
*interest in the property on any appropriate
register.
The Minister must arrange for an
*interest in property to be transferred to a
person (the purchaser) if:
(a) the property is forfeited to the Commonwealth under section 92;
and
(b) the interest is required to be transferred to the purchaser under
section 105, or under a direction under subparagraph 102(1)(d)(i);
and
(c) the purchaser’s interest in the property, immediately before the
forfeiture took place, was not the only interest in the property; and
(d) the purchaser gives written notice to each other person who had an
interest in the property immediately before the forfeiture took place
that:
(i) the purchaser intends to purchase that other interest from the
Commonwealth; and
(ii) the person served with the notice may, within 21 days after receiving
the notice, lodge a written objection to the purchase of that interest with the
Minister; and
(e) no person served with the notice under paragraph (d) in relation
to that interest lodges a written objection to the purchase of that interest
with the Minister within the period referred to in that paragraph; and
(f) the purchaser pays to the Commonwealth, while that interest is still
vested in the Commonwealth, an amount equal to the value of that
interest.
(1) A forfeiture of property to the Commonwealth under section 92 in
relation to a person’s conviction of an offence ceases to have effect
if:
(a) the person’s conviction of the offence is subsequently
*quashed; and
(b) the forfeiture does not also relate to the person’s conviction
of other offences that have not been quashed; and
(c) the *DPP does not, within 14 days
after the conviction is quashed, apply to the court that made the
*restraining order referred to in paragraph
92(1)(b) for the forfeiture to be confirmed.
(2) However, unless and until a court decides otherwise on such an
application, the *quashing of the conviction
does not affect the forfeiture:
(a) for 14 days after the conviction is quashed; and
(b) if the *DPP makes such an
application.
(1) The *DPP must give written notice of
an application for confirmation of the forfeiture to:
(a) the person whose conviction was
*quashed; and
(b) any person who claims, or prior to the forfeiture claimed, an
*interest in property covered by the
forfeiture; and
(c) any person whom the DPP reasonably believes may have had an interest
in that property before the forfeiture.
Note: If the DPP applies for confirmation of a forfeiture,
it can also apply for an examination order under Part 3-1.
(2) The court hearing the application may, at any time before finally
determining the application, direct the *DPP to
give or publish notice of the application to a specified person or class of
persons. The court may also specify the time and manner in which the notice is
to be given or published.
(1) Any person who claims an *interest in
property covered by the forfeiture may appear and adduce evidence at the hearing
of the application for confirmation of the forfeiture.
(2) The court may, in determining the application, have regard
to:
(a) the transcript of any proceeding against the person for:
(i) the offence of which the person was convicted; or
(ii) if the person was taken to be convicted of that offence because of
paragraph 331(1)(c)—the other offence referred to in that
paragraph;
including any appeals relating to the conviction; and
(b) the evidence given in any such proceeding.
(1) The court may confirm the forfeiture if the court is satisfied
that:
(a) it could make a *forfeiture order
under section 47 in relation to the offence in relation to which the
person’s conviction was *quashed if the
*DPP were to apply for an order under that
section; or
(b) it could make a forfeiture order under section 49 in relation to
the offence in relation to which the person’s conviction was quashed if
the DPP were to apply for an order under that section.
(2) For the purposes of paragraph (1)(a), the court is to treat any
relevant conduct of the person (other than conduct that constitutes a
*terrorism offence) as having been made within
the period of 6 years referred to in paragraph 47(1)(c).
(1) If the court confirms the forfeiture under paragraph 110(1)(a), the
forfeiture is taken not to be affected by the
*quashing of the person’s conviction of
the offence.
(2) If the court confirms the forfeiture under paragraph
110(1)(b):
(a) to the extent that the property covered by the forfeiture is
*proceeds of the offence, the forfeiture is
taken not to be affected by the *quashing of
the person’s conviction of the offence; but
(b) to the extent that the property covered by the forfeiture is not
proceeds of the offence, the forfeiture ceases to have effect.
(3) If the court decides not to confirm the forfeiture, the forfeiture
ceases to have effect.
During the period:
(a) starting on the day after the person’s conviction of the offence
was *quashed; and
(b) ending when the court decides whether to confirm the
forfeiture;
the *Official Trustee must not do any of
the things required under section 100 in relation to property covered by
the forfeiture or amounts received from disposing of such property.
(1) This section applies in relation to particular property if:
(a) the property was forfeited to the Commonwealth under section 92
but the forfeiture ceases to have effect under section 107 or subsection
111(3); or
(b) the property was forfeited to the Commonwealth under section 92
but the forfeiture ceases to have effect in relation to that property under
subsection 111(2).
(2) The *DPP must, as soon as practicable
after the forfeiture ceases to have effect, give written notice of the cessation
to any person the DPP reasonably believes may have had an
*interest in that property immediately before
the forfeiture.
(3) The *DPP must, if required by a
court, give or publish notice of the cessation to a specified person or class of
persons. The court may also specify the time and manner in which the notice is
to be given or published.
(4) A notice given under this section must include a statement to the
effect that a person claiming to have had an
*interest in that property may apply under
section 114 for the transfer of the interest, or its value, to the
person.
(1) The Minister must arrange for:
(a) if property forfeited to the Commonwealth under section 92 is
vested in the Commonwealth—an *interest
in the property to be transferred to a person claiming to have had the interest
in the property immediately before the forfeiture; or
(b) if property forfeited to the Commonwealth under section 92 is no
longer vested in the Commonwealth—an amount equal to the value of the
interest in the property to be paid to the person;
if:
(c) the forfeiture has ceased to have effect under section 107 or
111; and
(d) the person applies to the Minister, in writing, for the transfer of
the interest to the person; and
(e) the person had that interest in the property at that time.
(2) If the Minister must arrange for the property to be transferred, the
Minister may also, on behalf of the Commonwealth, do or authorise the doing of
anything necessary or convenient to give effect to the transfer.
(3) Without limiting subsection (2), things that may be done or
authorised under that subsection include:
(a) executing any instrument; and
(b) applying for registration of an
*interest in the property on any appropriate
register.
If certain offences have been committed, pecuniary penalty orders can be
made, ordering payments to the Commonwealth of amounts based on:
(a) the benefits that a person has derived from such an offence;
and
(b) (in some cases) the benefits that the person has derived from other
unlawful activity.
(It is not always a requirement that a person has been convicted of the
offence.)
(1) A court with *proceeds jurisdiction
must make an order requiring a person to pay an amount to the Commonwealth
if:
(a) the *DPP applies for the order;
and
(b) the court is satisfied of either or both of the following:
(i) the person has been convicted of an
*indictable offence, and has derived
*benefits from the commission of the
offence;
(ii) subject to subsection (2), the person has committed a
*serious offence.
Note: The conviction for, or reasonable grounds for
suspecting commission of, an indictable offence could be used as grounds for a
restraining order under Part 2-1 covering all or some of the person’s
property.
(2) Subparagraph (1)(b)(ii) does not apply in relation to a
*serious offence that is not a
*terrorism offence unless the court is
satisfied that the offence was committed:
(a) within the 6 years preceding the application (or, if some or all of
the *person’s property is already covered
by a *restraining order, preceding the
application for the restraining order); or
(b) since the application was made.
The period of 6 years may be a period that began before the commencement of
this Act.
(3) In determining whether a person has derived a
*benefit, the court may treat as property of
the person any property that, in the court’s opinion, is subject to the
person’s *effective control.
(4) The court’s power to make a
*pecuniary penalty order in relation to an
offence is not affected by the existence of another
*confiscation order in relation to that
offence.
Note: There are restrictions on the DPP applying for
pecuniary penalty orders if previous applications for pecuniary penalty orders
have already been made: see section 135.
(1) A court must not make a *pecuniary
penalty order in relation to a person’s conviction of a
*serious offence until after the end of the
period of 6 months commencing on the
*conviction day.
(2) However, if the court before which the person was convicted has
*proceeds jurisdiction, the court may make a
*pecuniary penalty order in relation to the
person’s conviction when it passes sentence on the person.
Note: Pecuniary penalty orders made under this subsection
cannot be enforced within 6 months: see subsection 134(3).
(3) Subsection (1) does not apply if the person is taken to have been
convicted of the *serious offence because of
paragraph 331(1)(d).
If, because of paragraph 331(1)(d), a person is taken to have been
convicted of an *indictable offence, a court
must not make a *pecuniary penalty order in
relation to the person’s conviction unless:
(a) the court is satisfied, on the balance of probabilities, that the
person has *absconded; and
(b) either:
(i) the person has been committed for trial for the offence; or
(ii) the court is satisfied, having regard to all the evidence before the
court, that a reasonable jury, properly instructed, could lawfully find the
person guilty of the offence.
The court that made a *pecuniary penalty
order, or any other court that could have made the pecuniary penalty order, may
make orders ancillary to the pecuniary penalty order, either when it makes the
pecuniary penalty order or at a later time.
The fact that a person has been acquitted of an offence with which the
person has been charged does not affect the court’s power to make a
*pecuniary penalty order in relation to the
offence.
(1) The amount that a person is ordered to pay to the Commonwealth under a
*pecuniary penalty order (the penalty
amount) is the amount the court determines under this
Division.
(2) If the offence to which the order relates is not a
*serious offence, the
*penalty amount is determined by:
(a) assessing under Subdivision B the value of the
*benefits the person derived from the
commission of the offence; and
(b) subtracting from that value the sum of all the reductions (if any) in
the penalty amount under Subdivision C.
(3) If the offence to which the order relates is a
*serious offence, the
*penalty amount is determined by:
(a) assessing under Subdivision B the value of the
*benefits the person derived from:
(i) the commission of that offence; and
(ii) subject to subsection (4), the commission of any other offence
that constitutes *unlawful activity;
and
(b) subtracting from that value the sum of all the reductions (if any) in
the penalty amount under Subdivision C.
Note: Pecuniary penalty orders can be varied under
Subdivision D to increase penalty amounts in some cases.
(4) Subparagraph (3)(a)(ii) does not apply in relation to an offence
that is not a *terrorism offence unless the
offence was committed:
(a) within:
(i) if some or all of the person’s property is covered by a
*restraining order—the period of 6 years
preceding the application for the restraining order; or
(ii) otherwise—the period of 6 years preceding the application for
the *pecuniary penalty order; or
(b) during the period since that application for the restraining order or
the pecuniary penalty order was made
(1) In assessing the value of *benefits
that a person has derived from the commission of an offence or offences (the
illegal activity), the court is to have regard to the evidence
before it concerning all or any of the following:
(a) the money, or the value of the property other than money, that,
because of the illegal activity, came into the possession or under the control
of:
(i) the person; or
(ii) another person at the person’s request or direction;
(b) the value of any other benefit that, because of the illegal activity,
was provided to:
(i) the person; or
(ii) another person at the person’s request or direction;
(c) if any of the illegal activity consisted of doing an act or thing in
relation to a *narcotic substance:
(i) the market value, at the time of the offence, of similar or
substantially similar narcotic substances; and
(ii) the amount that was, or the range of amounts that were, ordinarily
paid for the doing of a similar or substantially similar act or thing;
(d) the value of the *person’s
property before, during and after the illegal activity;
(e) the person’s income and expenditure before, during and after the
illegal activity.
(2) At the hearing of an application for a
*pecuniary penalty order, a
*police officer, or a
*Customs officer, who is experienced in the
investigation of narcotics offences may testify, to the best of the
officer’s information, knowledge and belief:
(a) with respect to the amount that was the market value of a
*narcotic substance at a particular time or
during a particular period; or
(b) with respect to the amount, or the range of amounts, ordinarily paid
at a particular time, or during a particular period, for the doing of an act or
thing in relation to a narcotic substance.
(3) The officer’s testimony under subsection (2):
(a) is admissible at the hearing despite any rule of law or practice
relating to hearsay evidence; and
(b) is prima facie evidence of the matters testified.
(1) If:
(a) an application is made for a
*pecuniary penalty order against a person in
relation to an offence or offences (the illegal activity);
and
(b) the offence is not a *serious
offence, or none of the offences are serious offences; and
(c) at the hearing of the application, evidence is given that the value of
the *person’s property during or after
the illegal activity exceeded the value of the person’s property before
the illegal activity;
the court is to treat the value of the
*benefits derived by the person from the
commission of the illegal activity as being not less than the amount of the
greatest excess.
(2) The amount treated as the value of the
*benefits under this section is reduced to the
extent (if any) that the court is satisfied that the excess was due to causes
unrelated to the illegal activity.
(1) If:
(a) an application is made for a
*pecuniary penalty order against a person in
relation to an offence or offences (the illegal activity);
and
(b) the offence is a *serious offence, or
one or more of the offences are serious offences; and
(c) at the hearing of the application, evidence is given that the value of
the *person’s property during or
after:
(i) the illegal activity; or
(ii) any other *unlawful activity that
the person has engaged in that constitutes a
*terrorism offence; or
(iii) any other unlawful activity that the person has engaged in, within
the period referred to in subsection (5), that does not constitute a
terrorism offence;
exceeded the value of the person’s property before the illegal
activity;
the court is to treat the value of the
*benefits derived by the person from the
commission of the illegal activity as being not less than the amount of the
greatest excess.
(2) The amount treated as the value of the
*benefits under subsection (1) is reduced
to the extent (if any) that the court is satisfied that the excess was due to
causes unrelated to:
(a) the illegal activity; or
(b) any other *unlawful activity that the
person has engaged in that constitutes a
*terrorism offence; or
(c) any other unlawful activity that the person has engaged in, within the
period referred to in subsection (5), that does not constitute a terrorism
offence;
(3) If evidence is given, at the hearing of the application, of the
person’s expenditure during the period referred to in subsection (5),
the amount of the expenditure is presumed, unless the contrary is proved, to be
the value of a *benefit that, because of the
illegal activity, was provided to the person.
(4) Subsection (3) does not apply to expenditure to the extent that
it resulted in acquisition of property that is taken into account under
subsection (1).
(5) The period for the purposes of subparagraph (1)(c)(iii),
paragraph (2)(c) and subsection (3) is:
(a) if some or all of the person’s property is covered by a
*restraining order—the period of 6 years
preceding the application for the restraining order;
(b) otherwise—the period of 6 years preceding the application for
the *pecuniary penalty order;
and includes the period since that application for the restraining order or
the pecuniary penalty order was made.
(1) In quantifying the value of a
*benefit for the purposes of this Subdivision,
the court may treat as the value of the benefit the value that the benefit would
have had if derived at the time the court makes its assessment of the value of
benefits.
(2) Without limiting subsection (1), the court may have regard to any
decline in the purchasing power of money between the time when the
*benefit was derived and the time the court
makes its assessment.
In assessing the value of *benefits that
a person has derived from the commission of an offence or offences (the
illegal activity), none of the following are to be
subtracted:
(a) expenses or outgoings the person incurred in relation to the illegal
activity;
(b) the value of any benefits that the person derives as
*agent for, or otherwise on behalf of, another
person (whether or not the other person receives any of the benefits).
(1) A *benefit is not to be taken into
account for the purposes of this Subdivision if a pecuniary penalty has been
imposed in respect of the benefit under:
(a) this Act; or
(b) Division 3 of Part XIII of the Customs Act 1901;
or
(c) a law of a Territory; or
(d) a law of a State.
(2) To avoid doubt, an amount payable under a
*literary proceeds order is a pecuniary penalty
for the purposes of this section.
In assessing the value of *benefits that
a person has derived, the court may treat as property of the person any property
that, in the court’s opinion, is subject to the person’s
*effective control.
In assessing the value of *benefits that
a person has derived, the *person’s
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; or
(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; or
(c) in relation to a deed of assignment, a deed of arrangement or a
composition under Part X of the Bankruptcy Act 1966—the
trustee of the deed or the composition; or
(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.
The *penalty amount under a
*pecuniary penalty order against a person is
reduced by an amount equal to the value, as at the time of the making of the
order, of any property that is *proceeds of the
offence to which the order relates if:
(a) the property has been forfeited, under this Act or another law of the
Commonwealth or under a law of a *non-governing
Territory, in relation to the offence to which the order relates; or
(b) an application has been made for a
*forfeiture order that would cover the
property.
(1) The court must reduce the *penalty
amount under a *pecuniary penalty order against
a person by an amount that, in the court’s opinion, represents the extent
to which tax that the person has paid is attributable to the
*benefits to which the order relates.
(2) The tax may be tax payable under a law of the Commonwealth, a State, a
Territory or a foreign country.
The court may, if it considers it appropriate to do so, reduce the
*penalty amount under a
*pecuniary penalty order against a person by an
amount equal to the amount payable by the person by way of fine, restitution,
compensation or damages in relation to an offence to which the order
relates.
(1) The court may, on the application of the
*DPP, vary a
*pecuniary penalty order against a person by
increasing the *penalty amount if one or both
of subsections (2) and (3) apply. The amount of each increase is as
specified in the relevant subsection.
(2) The *penalty amount may be increased
if:
(a) the penalty amount was reduced under section 130 to take account
of a forfeiture of property or a proposed
*forfeiture order against property;
and
(b) an appeal against the forfeiture or forfeiture order is allowed, or
the proceedings for the proposed forfeiture order terminate without the proposed
forfeiture order being made.
The amount of the increase is equal to the value of the property.
(3) The *penalty amount may be increased
if:
(a) the penalty amount was reduced under section 131 to take account
of an amount of tax the person paid; and
(b) an amount is repaid or refunded to the person in respect of that
tax.
The amount of the increase is equal to the amount repaid or
refunded.
(4) The *DPP’s application may deal
with more than one increase to the same
*penalty amount.
(1) The *DPP may apply for a
*pecuniary penalty order.
(2) If the application relates to a person’s conviction of a
*serious offence, the application must be made
before:
(a) the end of the period of 9 months after the
*conviction day; or
(b) if an *extension order is in force at
the end of that period—the end of the period of 3 months after the end of
the extended period relating to that extension order.
(3) If the application relates to a person’s conviction of an
*indictable offence that is not a
*serious offence, the application must be made
before the end of the period of 6 months after the
*conviction day.
(4) An application may be made in relation to one or more
offences.
(5) An application may be made for a
*pecuniary penalty order in relation to an
offence even if:
(a) a *forfeiture order in relation to
the offence, or an application for such a forfeiture order, has been made;
or
(b) Part 2-3 (forfeiture on conviction of a serious offence) applies
to the offence.
(1) The *DPP cannot, unless the court
gives leave, apply for a *pecuniary penalty
order against a person in respect of *benefits
the person derived from the commission of an offence if:
(a) an application has previously been made:
(i) under this Division; or
(ii) under another law of the Commonwealth; or
(iii) under a law of a *non-governing
Territory;
for a pecuniary penalty in respect of those benefits the person derived
from the commission of the offence; 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 *benefit 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
(c) it is in the interests of justice to give the leave.
(3) An application for a *literary
proceeds order is not, for the purposes of this section, an application for a
pecuniary penalty.
(1) The *DPP must give written notice of
the application to a person who would be subject to the
*pecuniary penalty order if it were
made.
(2) The *DPP must include a copy of the
application, and any affidavit supporting the application, with the
notice.
(3) 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.
(4) The court must not make such an order unless it is satisfied
that:
(a) including a copy of the affidavit with the notice would prejudice the
investigation of, or the prosecution of a person for, an offence; or
(b) it is for any other reason appropriate to make the order.
(1) The court hearing the application may amend the application:
(a) on application by the *DPP;
or
(b) with the consent of the DPP.
(2) However, the court must not amend the application so as to include an
additional *benefit in the application unless
the court is satisfied that:
(a) the benefit was not reasonably capable of identification when the
application was originally made; or
(b) necessary evidence became available only after the application was
originally made.
(3) On applying for an amendment to include an additional
*benefit in the application, the
*DPP must give to the person against whom the
*pecuniary penalty order would be made a
written notice of the application to amend.
(1) The person who would be subject to the
*pecuniary penalty order if it were made may
appear and adduce evidence at the hearing of the application.
(2) If the application relates to a person’s conviction of an
*indictable offence, the court may, in
determining the application, have regard to:
(a) the transcript of any proceeding against the person for:
(i) that offence; or
(ii) if the person is taken to be convicted of that offence because of
paragraph 331(1)(c)—the other offence referred to in that paragraph;
and
(b) the evidence given in any such proceeding.
If an application for a *pecuniary
penalty order is made to a court before which a person was convicted of an
*indictable offence:
(a) the application may be dealt with by the court; and
(b) any power in relation to the relevant order may be exercised by the
court;
whether or not the court is constituted in the same way in which it was
constituted when the person was convicted of the indictable
offence.
(1) An amount payable by a person to the Commonwealth under a
*pecuniary penalty order is a civil debt due by
the person to the Commonwealth.
(2) A *pecuniary penalty 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) However, if the order was made under subsection 117(2) when sentence
was being passed on the person for the offence to which the order relates, the
order cannot be enforced against the person within the period of 6 months after
the order was made.
(4) The debt arising from the order is taken to be a judgment
debt.
(5) If a *pecuniary penalty 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.
(1) If:
(a) a person is subject to a *pecuniary
penalty order; and
(b) the *DPP applies to the court for an
order under this section; and
(c) the court is satisfied that particular property is subject to the
*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 pecuniary penalty 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) the person had committed a *serious
offence.
(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
*pecuniary penalty 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
*pecuniary penalty order, and any person who
claims an *interest in the property, may appear
and adduce evidence at the hearing of the application.
(1) If:
(a) a *pecuniary penalty order is made
against a person in relation to an *indictable
offence; and
(b) a *restraining order is, or has been,
made against:
(i) the *person’s property;
or
(ii) another person’s property in relation to which an order under
subsection 141(1) is, or has been, made; and
(c) the restraining order relates to that offence or a
*related offence;
then, upon the making of the later of the orders, there is created, by
force of this section, a charge on the property to secure the payment to the
Commonwealth of the *penalty amount.
(2) The charge ceases to have effect in respect of the property:
(a) if the *pecuniary penalty order was
made in relation to the person’s conviction of the
*indictable offence and that conviction is
*quashed—upon the order being discharged
under Division 5; or
(b) upon the discharge of the pecuniary penalty order or the
*restraining order by a court hearing an appeal
against the making of the order; or
(c) upon payment to the Commonwealth of the
*penalty amount in satisfaction of the
pecuniary penalty order; or
(d) upon the sale or other disposition of the property:
(i) under an order under Division 4 of Part 4-1; or
(ii) by the owner of the property with the consent of the court that made
the pecuniary penalty order; or
(iii) if the restraining order directed the
*Official Trustee to take custody and control
of the property—by the owner of the property with the consent of the
Official Trustee; or
(e) upon the sale of the property to a purchaser in good faith for value
who, at the time of purchase, has no notice of the charge;
whichever first occurs.
(3) The charge:
(a) is subject to every *encumbrance on
the property that came into existence before the charge and that would, apart
from this subsection, have priority over the charge; and
(b) has priority over all other encumbrances; and
(c) subject to subsection (2), is not affected by any change of
ownership of the property.
(1) If:
(a) a charge is created by section 142 on property of a particular
kind; and
(b) the provisions of any law of the Commonwealth or of a State or
Territory provide for the registration of title to, or charges over, property of
that kind;
the *Official Trustee or the
*DPP may cause the charge so created to be
registered under the provisions of that law.
(2) A person who purchases or otherwise acquires an
*interest in the property after the
registration of the charge is, for the purposes of paragraph 142(2)(e), taken to
have notice of the charge at the time of the purchase or acquisition.
(1) If:
(a) a court makes a *pecuniary penalty
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.
A *pecuniary penalty order made in
relation to an offence but not made in relation to a person’s conviction
of the offence is not affected if the person is convicted of the offence and the
conviction is subsequently *quashed.
(1) A *pecuniary penalty order made in
relation to a person’s conviction of a
*serious offence is discharged if:
(a) the person’s conviction of the offence is subsequently
*quashed (whether or not the order relates to
the person’s conviction of other offences that have not been quashed);
and
(b) the *DPP does not, within 14 days
after the conviction is quashed, apply to the court that made the order for the
order to be confirmed.
(2) However, unless and until a court decides otherwise on such an
application, the *quashing of the conviction
does not affect the *pecuniary penalty
order:
(a) for 14 days after the conviction is quashed; and
(b) if the *DPP makes such an
application.
(3) A *pecuniary penalty order made in
relation to a person’s conviction of an offence that is not a
*serious offence is discharged if the
person’s conviction of the offence is subsequently
*quashed.
The *DPP must give to the person written
notice of an application for confirmation of the
*pecuniary penalty order.
Note: If the DPP applies for confirmation of a pecuniary
penalty order, it can also apply for an examination order under
Part 3-1.
(1) The person may appear and adduce evidence at the hearing of the
application for confirmation of the order.
(2) The court may, in determining the application, have regard
to:
(a) the transcript of any proceeding against the person for:
(i) the offence of which the person was convicted; or
(ii) if the person was taken to be convicted of that offence because of
paragraph 331(1)(c)—the other offence referred to in that
paragraph;
including any appeals relating to the conviction; and
(b) the evidence given in any such proceeding.
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:
(a) on the ground that:
(i) if the offence in relation to which the person’s conviction was
*quashed is a
*terrorism offence—the person had
committed the offence; or
(ii) if the offence in relation to which the person’s conviction was
*quashed is not a
*terrorism offence—the person had
committed the offence within the period of 6 years referred to in subsection
116(2) in relation to that order, or since the end of that period; and
(b) without relying on the person’s conviction of the
offence.
(1) If the court confirms the *pecuniary
penalty order under section 149, the order is taken not to be affected by
the *quashing of the person’s conviction
of the offence.
(2) If the court decides not to confirm the
*pecuniary penalty order, the order is
discharged.
If certain offences have been committed, literary proceeds orders can be
made, ordering payments to the Commonwealth of amounts based on the literary
proceeds that a person has derived in relation to such an offence. (There is no
requirement that a person has been convicted of the offence.)
(1) A court with *proceeds jurisdiction
may make an order requiring a person to pay an amount to the Commonwealth
if:
(a) the *DPP applies for the order;
and
(b) the court is satisfied that the person has committed an
*indictable offence (whether or not the person
has been convicted of the offence); and
(c) the court is satisfied that the person has derived
*literary proceeds in relation to the
offence.
(2) A court with *proceeds jurisdiction
may make an order requiring a person to pay an amount to the Commonwealth
if:
(a) the *DPP applies for the order;
and
(b) the court is satisfied that the person has committed a
*foreign indictable offence (whether or not the
person has been convicted of the offence); and
(c) the court is satisfied that the person has derived in
*Australia
*literary proceeds in relation to the
offence.
(3) However, the *literary proceeds must
have been derived after the commencement of this Act.
Note: Because of section 14, it does not matter whether
the offence to which the order relates was committed before or after the
commencement of this Act.
(4) The court’s power to make a
*literary proceeds order in relation to an
offence is not affected by the existence of another
*confiscation order in relation to that
offence.
(1) Literary proceeds are any
*benefit that a person derives from the
commercial exploitation of:
(a) the person’s notoriety resulting from the person committing an
*indictable offence or a
*foreign indictable offence; or
(b) the notoriety of another person, involved in the commission of that
offence, resulting from the first-mentioned person committing that
offence.
(2) The commercial exploitation may be by any means, including:
(a) publishing any material in written or electronic form; or
(b) any use of media from which visual images, words or sounds can be
produced; or
(c) any live entertainment, representation or interview.
(3) If the offence is an *indictable
offence, it does not matter whether the
*benefits are derived within or outside
*Australia.
(4) In determining:
(a) whether a person has derived
*literary proceeds; or
(b) the value of literary proceeds that a person has derived;
the court may treat as property of the person any property that, in the
court’s opinion:
(c) is subject to the person’s
*effective control; or
(d) was not received by the person, but was transferred to, or (in the
case of money) paid to, another person at the person’s
direction.
In deciding whether to make a *literary
proceeds order, the court may take into account such matters as it thinks fit,
including any of the following:
(a) the nature and purpose of the product or activity from which the
*literary proceeds were derived;
(b) whether supplying the product or carrying out the activity was in the
public interest;
(c) the social, cultural or educational value of the product or
activity;
(d) the seriousness of the offence to which the product or activity
relates;
(e) how long ago the offence was committed.
More than one *literary proceeds order
may be made against a person in relation to the same offence.
The court that made a *literary proceeds
order, or any other court that could have made the literary proceeds order, may
make orders ancillary to the literary proceeds order, either when it makes the
literary proceeds order or at a later time.
The fact that a person has been acquitted of an offence with which the
person has been charged does not affect the court’s power to make a
*literary proceeds order in relation to the
offence.
(1) The amount that a person is ordered to pay to the Commonwealth under a
*literary proceeds order (the literary
proceeds amount) is the amount that the court thinks
appropriate.
(2) However, the amount:
(a) must not exceed the amount of the
*literary proceeds relating to the offence to
which the order relates, less any deductions arising under section 159;
and
(b) may be further reduced under section 160.
(3) In determining the *literary proceeds
amount, the court is to have regard to such matters as it thinks fit, including
any of the following:
(a) the amount of the *literary proceeds
relating to the offence;
(b) if the person stood trial for the offence—the evidence adduced
in the proceedings for the offence;
(c) if the person was convicted of the offence—the transcript of the
sentencing proceedings.
In determining the *literary proceeds
amount under a *literary proceeds order against
a person, the court must deduct the following:
(a) any expenses and outgoings that the person incurred in deriving the
*literary proceeds;
(b) the value of any property of the person forfeited under:
(i) a *forfeiture order; or
(ii) an *interstate forfeiture order;
or
(iii) a *foreign forfeiture
order;
relating to the offence to which the literary proceeds order relates, to
the extent that the property is literary proceeds;
(c) any amount payable by the person under:
(i) a *pecuniary penalty order;
or
(ii) an order under section 243B of the Customs Act 1901;
or
(iii) an *interstate pecuniary penalty
order; or
(iv) a *foreign pecuniary penalty
order;
relating to the offence to which the literary proceeds order relates, to
the extent that the amount is literary proceeds;
(d) the amount of any previous literary proceeds order made against the
person in relation to the same exploitation of the person’s notoriety
resulting from the person committing the offence in question.
(1) The court may reduce the *literary
proceeds amount under a *literary proceeds
order against a person by an amount that, in the court’s opinion,
represents the extent to which tax that the person has paid is attributable to
the *literary proceeds to which the order
relates.
(2) The tax may be tax payable under a law of the Commonwealth, a State, a
Territory or a foreign country.
(1) The court may, on the application of the
*DPP, vary a
*literary proceeds order against a person by
increasing the *literary proceeds amount if one
or more of subsections (2), (3) and (4) apply. The amount of each increase
is as specified in the relevant subsection.
(2) The *literary proceeds 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
literary proceeds amount under paragraph 159(b); 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 *literary proceeds amount may be
increased if:
(a) an amount payable under a *pecuniary
penalty 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 *literary proceeds amount under
paragraph 159(c); 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 *literary proceeds amount may be
increased if:
(a) in determining a *literary proceeds
amount, the court took into account, under section 160, an amount of tax
paid by the person who is the subject of the order; and
(b) an amount is repaid or refunded to the person in respect of that
tax.
The amount of the increase is equal to the amount repaid or
refunded.
(5) The *DPP’s application may deal
with more than one increase to the same
*literary proceeds amount.
(1) The *DPP may apply for a
*literary proceeds order.
(2) An application may be made in relation to one or more
offences.
(1) The *DPP must give written notice of
the application to the person who would be subject to the
*literary proceeds order if it were
made.
(2) The *DPP must include a copy of the
application, and any affidavit supporting the application, with the
notice.
(1) The court hearing the application may amend the application:
(a) on application by the *DPP;
or
(b) with the consent of the DPP.
(2) However, the court must not amend the application so as to include
additional *literary proceeds in the
application unless the court is satisfied that:
(a) the literary proceeds were not reasonably capable of identification
when the application was originally made; or
(b) necessary evidence became available only after the application was
originally made.
(3) If:
(a) the *DPP applies to amend the
application for a *literary proceeds order
against a person; and
(b) the effect of the amendment would be to include additional
*literary proceeds in the
application;
the DPP must give the person written notice of the application to
amend.
The person who would be subject to the
*literary proceeds order if it were made may
appear and adduce evidence at the hearing of the application.
If an application for a *literary
proceeds order is made to a court before which a person was convicted of an
*indictable offence:
(a) the application may be dealt with by the court; and
(b) any power in relation to the relevant order may be exercised by the
court;
whether or not the court is constituted in the same way in which it was
constituted when the person was convicted of the indictable
offence.
(1) An amount payable by a person to the Commonwealth under a
*literary proceeds order is a civil debt due by
the person to the Commonwealth.
(2) A *literary proceeds 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.
(1) If:
(a) a person is subject to a *literary
proceeds order; and
(b) the *DPP applies to the court for an
order under this section; and
(c) the court is satisfied that particular property is subject to the
*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 literary proceeds 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) the person had committed a *serious
offence.
(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
*literary proceeds order; and
(b) any person whom the DPP reasonably believes may have an
*interest in the property.
(5) The person who is subject to the
*literary proceeds order, and any person who
claims an *interest in the property, may appear
and adduce evidence at the hearing of the application.
(1) If:
(a) a *literary proceeds order is made
against a person in relation to an *indictable
offence; and
(b) a *restraining order is, or has been,
made against:
(i) the *person’s property;
or
(ii) another person’s property in relation to which an order under
subsection 168(1) is, or has been, made; and
(c) the restraining order relates to that offence or a
*related offence;
then, upon the making of the later of the orders, there is created, by
force of this section, a charge on the property to secure the payment to the
Commonwealth of the *literary proceeds
amount.
(2) The charge ceases to have effect in respect of the property:
(a) if the *literary proceeds order was
made in relation to the person’s conviction of the
*indictable offence and that conviction is
*quashed—upon the order being discharged
under Division 5; or
(b) upon the discharge of the literary proceeds order or the
*restraining order by a court hearing an appeal
against the making of the order; or
(c) upon payment to the Commonwealth of the
*literary proceeds amount in satisfaction of
the literary proceeds order; or
(d) upon the sale or other disposition of the property:
(i) under an order under Division 4 of Part 4-1; or
(ii) by the owner of the property with the consent of the court that made
the literary proceeds order; or
(iii) where the restraining order directed the
*Official Trustee to take custody and control
of the property—by the owner of the property with the consent of the
Official Trustee; or
(e) upon the sale of the property to a purchaser in good faith for value
who, at the time of purchase, has no notice of the charge;
whichever first occurs.
(3) The charge:
(a) is subject to every *encumbrance on
the property that came into existence before the charge and that would, apart
from this subsection, have priority over the charge; and
(b) has priority over all other encumbrances; and
(c) subject to subsection (2), is not affected by any change of
ownership of the property.
(1) If:
(a) a charge is created by section 169 on property of a particular
kind; and
(b) the provisions of any law of the Commonwealth or of a State or
Territory provide for the registration of title to, or charges over, property of
that kind;
the *Official Trustee or the
*DPP may cause the charge so created to be
registered under the provisions of that law.
(2) A person who purchases or otherwise acquires an
*interest in the property after the
registration of the charge is, for the purposes of paragraph 169(2)(e), taken to
have notice of the charge at the time of the purchase or acquisition.
(1) If:
(a) a court makes a *literary proceeds
order; and
(b) the court does not have jurisdiction with respect to the recovery of
debts of an amount equal to the *literary
proceeds amount under the order;
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 *literary proceeds
amount.
(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.
A *literary proceeds order made in
relation to an offence but not made in relation to a person’s conviction
of the offence is not affected if the person is convicted of the offence and the
conviction is subsequently *quashed.
(1) A *literary proceeds order made in
relation to a person’s conviction of an offence is discharged
if:
(a) the person’s conviction of the offence is subsequently
*quashed (whether or not the order relates to
the person’s conviction of other offences that have not been quashed);
and
(b) the *DPP does not, within 14 days
after the conviction is quashed, apply to the court that made the order for the
order to be confirmed.
(2) However, unless and until a court decides otherwise on such an
application, the *quashing of the conviction
does not affect the *literary proceeds
order:
(a) for 14 days after the conviction is quashed; and
(b) if the *DPP makes such an
application.
The *DPP must give to the person written
notice of an application for confirmation of the
*literary proceeds order.
Note: If the DPP applies for confirmation of a forfeiture
order, it can also apply for an examination order under
Part 3-1.
(1) The person may appear and adduce evidence at the hearing of the
application for confirmation of the order.
(2) The court may, in determining the application, have regard
to:
(a) the transcript of any proceeding against the person for:
(i) the offence of which the person was convicted; or
(ii) if the person was taken to be convicted of that offence because of
paragraph 331(1)(c)—the other offence referred to in that
paragraph;
including any appeals relating to the conviction; and
(b) the evidence given in any such proceeding.
The court may confirm the *literary
proceeds order if the court is satisfied that, when the
*DPP applied for the order, the court could
have made the order:
(a) on the ground that the person had committed the offence in relation to
which the person’s conviction was
*quashed; and
(b) without relying on the person’s conviction of the
offence.
(1) If the court confirms the *literary
proceeds order under section 176, the order is taken not to be affected by
the *quashing of the person’s conviction
of the offence.
(2) If the court decides not to confirm the
*literary proceeds order, the order is
discharged.
(1) The court may include in a *literary
proceeds order one or more amounts in relation to
*benefits that the person who is the subject of
the order may derive in the future if the court is satisfied that:
(a) the person will derive the benefits; and
(b) if the person derives the benefits, they will be
*literary proceeds in relation to the offence
to which the order relates.
(2) However, the court must not include an amount in the order unless the
*DPP, in its application for the order,
requested the inclusion in the order of one or more amounts in relation to
*benefits that the person who would be the
subject of the order may derive in the future.
(3) Each amount included in the order is to be an amount that the court
considers would be a *literary proceeds amount
in relation to a *benefit that the person may
derive in the future, if the court were to make a
*literary proceeds order after the person
derived the benefit.
Note: Division 2 describes how literary proceeds
amounts are determined.
If:
(a) an amount is included in a *literary
proceeds order in relation to *benefits that
the person who is the subject of the order may derive in the future;
and
(b) the person subsequently derives those benefits;
immediately the benefits are derived, Division 4 applies to the amount
as if it were a *literary proceeds amount under
a literary proceeds order.
(1) If a *restraining order is in force,
the court that made the restraining order, or any other court that could have
made the restraining order, may make an order (an examination
order) for the *examination of any
person, including:
(a) a person whose property is, or a person who has or claims an
*interest in property that is, the subject of
the restraining order; or
(b) a person whom the restraining order states to be a
*suspect for the offence to which the
restraining order relates; or
(c) the spouse (including de facto spouse) of a person referred to in
paragraph (a) or (b);
about the affairs (including the nature and location of any property) of a
person referred to in paragraph (a), (b) or (c).
(2) The *examination order ceases to have
effect if the *restraining order to which it
relates ceases to have effect.
(1) If an application relating to the
*quashing of a person’s conviction of an
offence is made, as mentioned in section 81, 107, 146 or 173, the court to
which the application is made may make an order (an examination
order) for the *examination of any
person, including:
(a) the person whose conviction is quashed; or
(b) a person whose property is, or a person who has an
*interest in property that is, the subject of
the forfeiture, *pecuniary penalty order or
*literary proceeds order to which the
application relates; or
(c) the spouse (including de facto spouse) of a person referred to in
paragraph (a) or (b);
about the affairs (including the nature and location of any property) of a
person referred to in paragraph (a), (b) or (c).
(2) The *examination order ceases to have
effect:
(a) if the application is withdrawn; or
(b) when the court makes a decision on the application.
An *examination order can only be made
on application by the *DPP.
(1) An *approved examiner may, on
application by the *DPP, give to a person who
is the subject of an *examination order a
written notice (an examination notice) for the
*examination of the person.
(2) However, the *approved examiner must
not give the *examination notice if:
(a) an application has been made under section 42 for the
*restraining order to which the notice relates
to be revoked; and
(b) the court to which the application is made orders that
*examinations are not to proceed.
(3) The fact that criminal proceedings have been instituted or have
commenced (whether or not under this Act) does not prevent the
*approved examiner giving the
*examination notice.
(4) An approved examiner is a person who:
(a) holds an office, or is included in a class of people, specified in the
regulations; or
(b) is appointed by the Minister under this section.
A person who is the subject of an
*examination order may be given more than one
*examination notice.
(1) The *examination notice:
(a) must be in the prescribed form; and
(b) must require the person to attend the
*examination; and
(c) must specify the time and place of the examination; and
(d) must specify such further information as the regulations
require.
(2) The *examination notice may require
the person to produce at the *examination the
documents specified in the notice.
(1) The *examination of a person must be
conducted:
(a) at the time and place specified in the
*examination notice; or
(b) at such other time and place as the
*approved examiner decides on the request of a
person referred to in paragraph 188(3)(b), (c) or (d).
(2) However, the *approved examiner
must:
(a) give the person a written notice withdrawing the
*examination notice; and
(b) if the *examination of the person has
started (but not finished)—stop the examination;
if, after the examination notice is given:
(c) an application has been made under section 42 for the
*restraining order to which the notice relates
to be revoked; and
(d) the court to which the application is made orders that examinations
are not to proceed.
(3) This section does not prevent the
*approved examiner giving the person a further
*examination notice if the application for
revocation of the *restraining order is
unsuccessful.
(4) The fact that criminal proceedings have been instituted or have
commenced (whether or not under this Act) does not prevent the
*examination of a person.
(1) The person may be examined on oath or affirmation by:
(a) the *approved examiner; and
(b) the *DPP.
(2) The *approved examiner may, for that
purpose:
(a) require the person either to take an oath or to make an affirmation;
and
(b) administer an oath or affirmation to the person.
(3) The oath or affirmation to be taken or made by the person for the
purposes of the *examination is an oath or
affirmation that the statements that the person will make will be
true.
(4) The *examination must not relate to a
person’s affairs:
(a) if the *examination relates to a
*restraining order and the person is no longer
a person whose affairs can, under section 180, be subject to the
examination; or
(b) if the examination relates to the
*quashing of a conviction for an offence and
the person is no longer a person whose affairs can, under section 181, be
subject to the examination.
(5) The *approved examiner may require
the person to answer a question that:
(a) is put to the person at the
*examination; and
(b) is relevant to the affairs (including the nature and location of any
property) of a person referred to in paragraph 180(1)(a), (b) or (c) or
181(1)(a), (b) or (c).
(1) The *examination is to take place in
private.
(2) The *approved examiner may give
directions about who may be present during the
*examination, or during a part of it.
(3) These people are entitled to be present at the
*examination:
(a) the *approved examiner;
(b) the person being examined, and the person’s
*lawyer;
(c) the *DPP;
(d) any person who is entitled to be present because of a direction under
subsection (2).
(1) The *lawyer of the person being
examined may, at such times during the
*examination as the
*approved examiner determines:
(a) address the approved examiner; and
(b) examine the person;
about matters about which the approved examiner, or the
*DPP, has examined the person.
(2) The *approved examiner may require a
*lawyer who, in the approved examiner’s
opinion, is trying to obstruct the *examination
by exercising rights under subsection (1), to stop addressing the approved
examiner, or stop his or her examination, as the case requires.
(1) The *approved examiner may, on the
request of a person referred to in paragraph 188(3)(b), (c) or (d), direct that
a person be examined by video link if:
(a) the facilities required by subsection (2) are available or can
reasonably be made available; and
(b) the approved examiner is satisfied that attendance of the person at
the place of the *examination would cause
unreasonable expense or inconvenience; and
(c) the approved examiner is satisfied that it is consistent with the
interests of justice that the person be examined by video link.
(2) The person can be examined under the direction only if the place where
the person is to attend for the purposes of the
*examination is equipped with video facilities
that enable the people referred to in subsection 188(3) to see and hear the
person be examined.
(3) An oath or affirmation to be sworn or made by a person who is to be
examined under such a direction may be administered either:
(a) by means of video link, in as nearly as practicable the same way as if
the person were to be examined at the place of the
*examination; or
(b) on behalf of the *approved examiner,
by a person authorised by the approved examiner, at the place where the person
to be examined attends for the purposes of the examination.
(4) The *approved examiner may, on the
request of a person referred to in paragraph 188(3)(b), (c) or (d), direct that
a person be examined by telephone if:
(a) the approved examiner is satisfied that attendance of the person at
the place of the *examination would cause
unreasonable expense or inconvenience; and
(b) the approved examiner is satisfied that it is consistent with the
interests of justice that the person be examined by telephone.
(1) The *approved examiner:
(a) may cause a record to be made of statements made at the
*examination; and
(b) must make such a record if the person being examined, or the
*DPP, so requests; and
(c) if the record is not a written record—must cause the record to
be reduced to writing if the person being examined, or the DPP, so
requests.
(2) If a record made under subsection (1) is in writing or is reduced
to writing:
(a) the *approved examiner may require
the person being examined to read it, or to have it read to him or her, and may
require him or her to sign it; and
(b) if the person being examined requests in writing that the approved
examiner give to the person a copy of the written record—the approved
examiner must comply with the request without charge.
(3) The *approved examiner may, in
complying with the request under paragraph (2)(b), impose on the person
being examined such conditions (if any) as the approved examiner reasonably
considers to be necessary to prevent improper disclosure of the
record.
(4) The fact that a person being
*examined signs a record as required under
paragraph (2)(a) does not of itself constitute an acknowledgment that the
record is accurate.
The *approved examiner may:
(a) on his or her own initiative; or
(b) at the request of the person being examined, or the
*DPP;
refer a question of law arising at the
*examination to the court that made the
*examination order.
(1) The *approved examiner may:
(a) on his or her own initiative; or
(b) at the request of the person being examined, or the
*DPP;
give directions preventing or restricting disclosure to the public of
matters contained in answers given or documents produced in the course of the
*examination.
(2) In deciding whether or not to give a direction, the
*approved examiner is to have regard
to:
(a) whether:
(i) an answer that has been or may be given; or
(ii) a document that has been or may be produced; or
(iii) a matter that has arisen or may arise;
during the *examination is of a
confidential nature or relates to the commission, or to the alleged or suspected
commission, of an offence against a law of the Commonwealth or a State or
Territory; and
(b) any unfair prejudice to a person’s reputation that would be
likely to be caused unless the approved examiner gives the direction;
and
(c) whether giving the direction is in the public interest; and
(d) any other relevant matter.
(1) The *approved examiner has, in the
performance of his or her duties as an approved examiner, the same protection
and immunity as a Justice of the High Court.
(2) A *lawyer appearing at the
*examination:
(a) on behalf of the person being examined; or
(b) as or on behalf of the
*DPP;
has the same protection and immunity as a barrister has in appearing for a
party in proceedings in the High Court.
(3) Subject to this Act, the person being
*examined:
(a) has the same protection; and
(b) in addition to the penalties provided by this Act, is subject to the
same liabilities;
as a witness in proceedings in the High Court.
Note: In addition to the offences in this Division, there
are other offences that may be relevant to examinations, such as
sections 137.1 (false or misleading information) and 137.2 (false or
misleading documents) of the Criminal Code.
A person is guilty of an offence if the person:
(a) is required by an *examination notice
to attend an *examination; and
(b) refuses or fails to attend the examination at the time and place
specified in the notice.
Maximum penalty: Imprisonment for 6 months or 30 penalty units, or
both.
(1) A person attending an *examination to
answer questions or produce documents must not:
(a) refuse or fail to be sworn or to make an affirmation; or
(b) refuse or fail to answer a question that the
*approved examiner requires the person to
answer; or
(c) refuse or fail to produce at the examination a document specified in
the *examination notice that required the
person’s attendance; or
(d) leave the examination before being excused by the approved
examiner.
Maximum penalty: Imprisonment for 6 months or 30 penalty units, or
both.
(2) Paragraph (1)(c) does not apply if the person complied with the
notice in relation to production of the document to the extent that it was
practicable to do so.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (2): see subsection 13.3(3) of the Criminal
Code.
(1) Paragraph 196(1)(b) or (c) does not apply if, under:
(a) a law of the Commonwealth; or
(b) a law of the State or Territory in which the
*examination takes place;
the person could not, in proceedings before a court, be compelled to answer
the question or produce the document.
Note: A defendant bears an evidential burden in relation to
the matter in subsection (1): see subsection 13.3(3) of the Criminal
Code.
(2) However, paragraph 196(1)(b) or (c) applies if the only reason or
reasons why the person could not be so compelled are one or more of the
following:
(a) answering the question or producing the document would tend to
incriminate the person or to expose the person to a penalty;
(b) the answer would be privileged from being disclosed, or the document
would be privileged from being produced, in legal proceedings on the ground of
*legal professional privilege;
(c) the answer or document would, under a law of the Commonwealth, a State
or a Territory relating to the law of evidence, be inadmissible in legal
proceedings for a reason other than because:
(i) the answer would be privileged from being disclosed; or
(ii) the document would be privileged from being produced.
(3) To avoid doubt, the following are not reasons why a person cannot, in
proceedings before a court, be compelled to answer a question or produce a
document:
(a) the person is contractually obliged not to disclose information, and
answering the question or producing the document would disclose that
information;
(b) the person is obliged under a law of a foreign country not to disclose
information, and answering the question or producing the document would disclose
that information.
An answer given or document produced in an
*examination 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
(c) in proceedings ancillary to an application under this Act;
or
(d) in proceedings for enforcement of a
*confiscation order; or
(e) in the case of a document—in civil proceedings for or in respect
of a right or liability it confers or imposes.
A person is guilty of an offence if the person:
(a) is present at an *examination;
and
(b) is not entitled under subsection 188(3) to be present.
Maximum penalty: 30 penalty units.
A person is guilty of an offence if the person breaches a condition
imposed under subsection 191(3) relating to a record given to the person under
that subsection.
Maximum penalty: 30 penalty units.
(1) A person is guilty of an offence if:
(a) the person publishes a matter contained in answers given or documents
produced in the course of an *examination;
and
(b) the publication is in contravention of a direction given under
section 193 by the *approved examiner who
conducted the examination.
Maximum penalty: 30 penalty units.
(2) This section does not apply to disclosure of a matter:
(a) to obtain legal advice or legal representation in relation to the
order; or
(b) for the purposes of, or in the course of, legal proceedings.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2): see subsection 13.3(3) of the Criminal
Code.
(1) A magistrate may make an order (a production
order) requiring a person to:
(a) produce one or more
*property-tracking documents to an
*authorised officer; or
(b) make one or more property-tracking documents available to an
authorised officer for inspection.
(2) However:
(a) the magistrate must not make a
*production order unless the magistrate is
satisfied by information on oath that the person is reasonably suspected of
having possession or control of such documents; and
(b) a production order cannot require documents that are not:
(i) in the possession or under the control of a body corporate;
or
(ii) used or intended to be used in the carrying on of a
business;
to be produced or made available to an
*authorised officer; and
(c) a production order cannot require any accounting records used in the
ordinary business of a *financial institution
(including ledgers, day-books, cash-books and account books) to be produced to
an *authorised officer.
(3) The *production order can only be
made on application by an *authorised officer
of an *enforcement agency.
(4) The *authorised officer need not give
notice of the application to any person.
(5) Each of the following is a property-tracking
document:
(a) a document relevant to identifying, locating or quantifying property
of any person:
(i) who has been convicted of, charged with, or whom it is proposed to
charge with, an *indictable offence;
or
(ii) whom there are reasonable grounds to suspect of having engaged in
conduct constituting a *terrorism offence;
or
(iii) whom there are reasonable grounds to suspect of having, within the
last 6 years, engaged in conduct constituting any other
*serious offence;
(b) a document relevant to identifying or locating any document necessary
for the transfer of property of such a person;
(c) a document relevant to identifying, locating or quantifying:
(i) *proceeds of an indictable offence,
or an *instrument of an indictable offence, of
which a person has been convicted or with which a person has been charged or is
proposed to be charged; or
(ii) proceeds of a terrorism offence, or an instrument of a terrorism
offence, that a person is reasonably suspected of having committed; or
(iii) proceeds of any other serious offence, or an instrument of any other
serious offence, that a person is reasonably suspected of having committed
within the last 6 years;
(d) a document relevant to identifying or locating any document necessary
for the transfer of such property;
(e) a document relevant to identifying, locating or quantifying
*literary proceeds in relation to an indictable
offence or a *foreign indictable offence of
which a person has been convicted or which a person is reasonably suspected of
having committed;
(f) a document that would assist in the reading or interpretation of a
document referred to in paragraph (a), (b), (c), (d) or (e).
(6) It is sufficient for the purposes of subparagraph (5)(c)(ii) or
(iii) that the document is relevant to identifying, locating or quantifying
*proceeds of some offence or other of a kind
referred to in that subparagraph. It does not need to be relevant to
identifying, locating or quantifying proceeds of a particular offence.
(1) A *production order must:
(a) specify the nature of the documents required; and
(b) specify the place at which the person must produce the documents or
make the documents available; and
(c) specify the time at which, or the times between which, this must be
done; and
(d) specify the name of the *authorised
officer who, unless he or she inserts the name of another authorised officer in
the order, is to be responsible for giving the order to the person;
and
(e) if the order specifies that information about the order must not be
disclosed—set out the effect of section 210 (disclosing existence or
nature of production orders); and
(f) set out the effect of section 211 (failing to comply with an
order).
(2) The time or times specified under paragraph (1)(c) must be at
least 14 days from the day on which the order is given. However, the magistrate
making the order may specify an earlier time or times if satisfied that it will
not cause hardship to the person required to produce documents or make documents
available.
The *authorised officer may inspect,
take extracts from, or make copies of, a document produced or made available
under a *production order.
(1) The *authorised officer may also
retain a document produced under a *production
order for as long as is necessary for the purposes of this Act.
(2) The person to whom a *production
order is given may require the *authorised
officer to:
(a) certify in writing a copy of the document retained to be a true copy
and give the person the copy; or
(b) allow the person to do one or more of the following:
(i) inspect the document;
(ii) take extracts from the document;
(iii) make copies of the document.
(1) A person is not excused from producing a document or making a document
available under a *production order on the
ground that:
(a) to do so would tend to incriminate the person or expose the person to
a penalty; or
(b) producing the document or making it available would breach an
obligation (whether imposed by an enactment or otherwise) of the person not to
disclose the existence or contents of the document; or
(c) producing the document or making it available would disclose
information that is the subject of *legal
professional privilege.
(2) However, in the case of a natural person, the document is not
admissible in evidence in a *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.
(1) A person who is required to produce a document to an
*authorised officer under a
*production order may apply to:
(a) the magistrate who made the order; or
(b) if that magistrate is unavailable—any other
magistrate;
to vary the order so that it instead requires the person to make the
document available for inspection.
(2) The magistrate may vary the
*production order if satisfied that the
document is essential to the person’s business activities.
A magistrate in a State or a
*self-governing Territory may issue a
*production order relating to one or more
documents that are located in:
(a) that State or Territory; or
(b) another State or self-governing Territory if he or she is satisfied
that there are special circumstances that make the issue of the order
appropriate; or
(c) a *non-governing Territory.
A person is guilty of 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
(c) the statement is made in, or in connection with, an application for a
*production order.
Maximum penalty: Imprisonment for 12 months or 60 penalty units, or
both.
(1) A person is guilty of an offence if:
(a) the person is given a *production
order; and
(b) the order specifies that information about the order must not be
disclosed; and
(c) the person discloses the existence or nature of the order to another
person.
Maximum penalty: Imprisonment for 2 years or 120 penalty units, or
both.
(2) A person is guilty of an offence if:
(a) the person is given a *production
order; and
(b) the order specifies that information about the order must not be
disclosed; and
(c) the person discloses information to another person; and
(d) that other person could infer the existence or nature of the order
from that information.
Maximum penalty: Imprisonment for 2 years or 120 penalty units, or
both.
(3) Subsections (1) and (2) do not apply if:
(a) the person discloses the information to an employee,
*agent or other person in order to obtain a
document that is required by the order in order to comply with it, and that
other person is directed not to inform the person to whom the document relates
about the matter; or
(b) the disclosure is made to obtain legal advice or legal representation
in relation to the order; or
(c) the disclosure is made for the purposes of, or in the course of, legal
proceedings.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (3): see subsection 13.3(3) of the Criminal
Code.
(1) A person is guilty of an offence if:
(a) the person is given a *production
order in relation to a *property-tracking
document; and
(b) the person fails to comply with the order; and
(c) the person has not been notified of sufficient compliance under
subsection (2).
Maximum penalty: Imprisonment for 6 months or 30 penalty units, or
both.
Note: Sections 137.1 and 137.2 of the Criminal Code
also create offences for providing false or misleading information or
documents.
(2) A person is notified of sufficient compliance under this subsection
if:
(a) the person gives an *authorised
officer a statutory declaration stating that the person does not have possession
or control of the document; and
(b) the officer notifies the person in writing that the statutory
declaration is sufficient compliance with the
*production order.
A person is guilty of an offence if:
(a) the person destroys, defaces or otherwise interferes with a
*property-tracking document; and
(b) a *production order is in force
requiring the document to be produced or made available.
Maximum penalty: Imprisonment for 6 months or 30 penalty units, or
both.
(1) An officer specified in subsection (3) may give a written notice
to a *financial institution requiring the
institution to provide to an *authorised
officer any information or documents relevant to any one or more of the
following:
(a) determining whether an *account is
held by a specified person with the financial institution;
(b) determining whether a particular person is a signatory to an
account;
(c) if a person holds an account with the institution, the current balance
of the account;
(d) details of transactions on such an account over a specified period of
up to 6 months;
(e) details of any related accounts (including names of those who hold
those accounts);
(f) a transaction conducted by the financial institution on behalf of a
specified person.
(2) The officer must not issue the notice unless the officer reasonably
believes that giving the notice is required:
(a) to determine whether to take any action under this Act; or
(b) in relation to proceedings under this Act.
(3) The officers who may give a notice to a
*financial institution are:
(a) the Commissioner of the Australian Federal Police; or
(b) a Deputy Commissioner of the Australian Federal Police; or
(c) a senior executive AFP employee (within the meaning of the
Australian Federal Police Act 1979) who is a member of the Australian
Federal Police and who is authorised in writing by the Commissioner for the
purposes of this section; or
(d) a member of the National Crime Authority.
The notice must:
(a) state that the officer giving the notice believes that the notice is
required:
(i) to determine whether to take any action under this Act; or
(ii) in relation to proceedings under this Act;
(as the case requires); and
(b) specify the name of the *financial
institution; and
(c) specify the kind of information or documents required to be provided;
and
(d) specify the form and manner in which that information or those
documents are to be provided; and
(e) state that the information or documents must be provided within 14
days of the notice; and
(f) if the notice specifies that information about the notice must not be
disclosed—set out the effect of section 217 (disclosing existence or
nature of a notice); and
(g) set out the effect of section 218 (failing to comply with a
notice).
(1) No action, suit or proceeding lies against:
(a) a *financial institution;
or
(b) an *officer, employee 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 under a notice
under section 213 or in the mistaken belief that action was required under
the notice.
(2) A *financial institution, or person
who is an *officer, employee or
*agent of a financial institution, who provides
information under a notice under section 213 is taken, for the purposes of
Part 10.2 of the Criminal Code (offences relating to
money-laundering), not to have been in possession of that information at any
time.
A person is guilty of 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
(c) the statement is made in, or in connection with, a notice under
section 213.
Maximum penalty: Imprisonment for 12 months or 60 penalty units, or
both.
A person is guilty of an offence if:
(a) the person is given a notice under section 213; and
(b) the notice specifies that information about the notice must not be
disclosed; and
(c) the person discloses the existence or nature of the notice.
Maximum penalty: Imprisonment for 2 years or 120 penalty units, or
both.
A person is guilty of an offence if:
(a) the person is given a notice under section 213; and
(b) the person fails to comply with the notice:
Maximum penalty: Imprisonment for 6 months or 30 penalty units, or
both.
Note: Sections 137.1 and 137.2 of the Criminal Code
also create offences for providing false or misleading information or
documents.
(1) A judge of a court of a State or Territory that has jurisdiction to
deal with criminal matters on indictment may make an order (a
monitoring order) that a
*financial institution provide information
about transactions conducted during a particular period through an
*account held by a particular person with the
institution.
(2) The judge must not make a *monitoring
order unless the judge is satisfied that there are reasonable grounds for
suspecting that:
(a) the person in respect of whose
*account the information is sought:
(i) has committed, or is about to commit, a
*serious offence; or
(ii) was involved in the commission, or is about to be involved in the
commission, of a serious offence; or
(iii) has *benefited directly or
indirectly, or is about to benefit directly or indirectly, from the commission
of a serious offence; or
(b) the account is being used to commit an offence against Part 10.2
of the Criminal Code (money laundering).
(3) It does not matter, for the purposes of paragraph (2)(b), whether
the person holding the account in question commits or is involved in the offence
against Part 10.2 of the Criminal Code.
(4) The *monitoring order can only be
made on application by an *authorised officer
of an *enforcement agency.
(1) A *monitoring order must:
(a) specify the name or names in which the
*account is believed to be held; and
(b) specify the kind of information that the
*financial institution is required to provide;
and
(c) specify the period during which the transactions must have occurred;
and
(d) specify to which *enforcement agency
the information is to be provided; and
(e) specify the form and manner in which the information is to be
given; and
(f) if the order specifies that information about the order must not be
disclosed—set out the effect of section 223 (disclosing existence or
operation of an order); and
(g) set out the effect of section 224 (failing to comply with an
order).
(2) The period mentioned in paragraph (1)(c) must:
(a) begin no earlier than the day on which notice of the
*monitoring order is given to the
*financial institution; and
(b) end no later than 3 months after the date of the order.
(1) No action, suit or proceeding lies against:
(a) a *financial institution;
or
(b) an *officer, employee 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 *monitoring order or in the mistaken
belief that action was required under the order.
(2) A *financial institution, or person
who is an *officer, employee or
*agent of a financial institution, who provides
information under a *monitoring order is taken,
for the purposes of Part 10.2 of the Criminal Code (offences
relating to money-laundering), not to have been in possession of that
information at any time.
A person is guilty of 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
(c) the statement is made in, or in connection with, an application for a
*monitoring order.
Maximum penalty: Imprisonment for 2 years or 120 penalty units, or
both.
(1) A person is guilty of an offence if:
(a) the person discloses the existence or the operation of a
*monitoring order to another person;
and
(b) the disclosure is not to a person specified in subsection (4);
and
(c) the disclosure is not for a purpose specified in
subsection (4).
Maximum penalty: Imprisonment for 5 years or 300 penalty units, or
both.
(2) A person is guilty of an offence if:
(a) the person discloses information to another person; and
(b) the other person could infer the existence or operation of a
*monitoring order from that information;
and
(c) the disclosure is not to a person specified in subsection (4);
and
(d) the disclosure is not for a purpose specified in
subsection (4).
Maximum penalty: Imprisonment for 5 years or 300 penalty units, or
both.
(3) A person is guilty of an offence if:
(a) the person receives information relating to a
*monitoring order in accordance with
subsection (4); and
(b) the person ceases to be a person to whom information could be
disclosed in accordance with subsection (4); and
(c) the person makes a record of, or discloses, the existence or the
operation of the order.
Maximum penalty: Imprisonment for 5 years or 300 penalty units, or
both.
(4) A person may disclose the existence or the operation of a
*monitoring order to the following persons for
the following purposes:
(a) the head of the *enforcement agency
specified under paragraph 220(1)(d) or an
*authorised officer of that agency:
(i) for the purpose of performing that person’s duties; or
(ii) for the purpose of, or for purposes connected with, legal
proceedings; or
(iii) for purposes arising in the course of proceedings before a
court;
(b) the Director of *AUSTRAC, or a member
of the staff of AUSTRAC who is authorised by the Director of AUSTRAC as a person
who may be advised of the existence of a monitoring order:
(i) for the purpose of performing that person’s duties; or
(ii) for the purpose of, or for purposes connected with, legal
proceedings; or
(iii) for purposes arising in the course of proceedings before a
court;
(c) an *officer or
*agent of the
*financial institution for the purpose of
ensuring that the order is complied with;
(d) a barrister or solicitor for the purpose of obtaining legal advice or
representation in relation to the order.
A person is guilty of an offence if:
(a) the person is given a *monitoring
order; and
(b) the person fails to comply with the order.
Maximum penalty: Imprisonment for 6 months or 30 penalty units, or
both.
Note: Sections 137.1 and 137.2 of the Criminal Code
also create offences for providing false or misleading information or
documents.
(1) A magistrate may issue a warrant to search
*premises if the magistrate is satisfied by
information on oath that there are reasonable grounds for suspecting that there
is at the premises, or will be within the next 72 hours,
*tainted property or
*evidential material.
(2) If an application for a *search
warrant is made under section 229 (applying for warrants by telephone or
other electronic means), this section applies as if subsection (1) referred
to 48 hours rather than 72 hours.
(3) The *search warrant can only be
issued on application by an *authorised officer
of an *enforcement agency.
(1) If the person applying for a warrant to search
*premises suspects that it will be necessary to
use firearms in executing the warrant, the person must state that suspicion, and
the grounds for that suspicion, in the information.
(2) A person applying for a warrant to search
*premises who has previously applied for a
warrant relating to the same premises, must include particulars of the
application and its outcome in the information.
(1) A *search warrant must
state:
(a) the nature of the property in respect of which action has been or
could be taken under this Act; and
(b) the nature of that action; and
(c) a description of the *premises to
which the warrant relates; and
(d) the kinds of *tainted property or
*evidential material that is to be searched for
under the warrant; and
(e) the name of the *authorised officer
who is responsible for executing the warrant, unless he or she inserts the name
of another authorised officer in the warrant; and
(f) the time at which the warrant expires (see subsection (2));
and
(g) whether the warrant may be executed at any time or only during
particular hours; and
(h) that the warrant authorises the seizure of other things found at the
premises in the course of the search that the
*executing officer or a
*person assisting believes on reasonable
grounds to be:
(i) tainted property to which the warrant relates; or
(ii) evidential material in relation to property to which the warrant
relates; or
(iii) evidential material (within the meaning of the Crimes Act
1914) relating to an *indictable
offence;
if he or she believes on reasonable grounds that seizure of the things is
necessary to prevent their concealment, loss or destruction or their use in
committing an offence; and
(i) whether the warrant authorises an
*ordinary search or a
*frisk search of a person who is at or near the
premises when the warrant is executed if the executing officer or a person
assisting reasonably suspects that the person has any tainted property or
evidential material in his or her possession.
(2) The time stated in the *search
warrant under paragraph (1)(f) as the time at which the warrant expires
must be a time that is not later than:
(a) if the application for the warrant is made under section 229
(telephone warrants)—48 hours after the warrant is issued; or
(b) otherwise, a time that is not later than the end of the seventh day
after the day on which the warrant is issued.
Example: If a warrant is issued at 3 pm on a Monday, the
expiry time specified must not be later than midnight on Monday in the following
week.
(3) Paragraph (1)(f) does not prevent the issue of successive
*search warrants in relation to the same
*premises.
(1) A *search warrant authorises the
*executing officer or a
*person assisting:
(a) to enter the *premises and, if the
premises are a *conveyance, to enter the
conveyance, wherever it is; and
(b) to search for and record fingerprints found at the premises and to
take samples of things found at the premises for forensic purposes;
and
(c) to search the premises for the kinds of
*tainted property or
*evidential material specified in the warrant,
and to seize things of that kind found at the premises; and
(d) to seize other things found at the premises in the course of the
search that the executing officer or a person assisting believes on reasonable
grounds to be:
(i) tainted property to which the warrant relates; or
(ii) evidential material in relation to property to which the warrant
relates; or
(iii) evidential material (within the meaning of the Crimes Act
1914) relating to an *indictable
offence;
if he or she believes on reasonable grounds that seizure of the things is
necessary to prevent their concealment, loss or destruction or their use in
committing an offence; and
(e) if the warrant so allows—to conduct an
*ordinary search or a
*frisk search of a person at or near the
premises if the executing officer or a person assisting suspects on reasonable
grounds that the person has any tainted property or evidential material in his
or her possession.
(2) A *search warrant authorises the
*executing officer to make things seized under
the warrant available to officers of other
*enforcement agencies if it is necessary to do
so for the purpose of:
(a) investigating or prosecuting an offence to which the things relate;
or
(b) recovering *proceeds of an offence or
an *instrument of an offence.
(1) An *authorised officer may apply to a
magistrate for a *search warrant 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 effective execution of the warrant.
(2) An application under subsection (1):
(a) must include all information that would be required in an ordinary
application for a *search warrant;
and
(b) if necessary, may be made before the information 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.
(1) The magistrate may complete and sign the same form of
*search warrant that would be issued under
section 225 if satisfied that:
(a) a search warrant in the terms of the application should be issued
urgently; or
(b) the delay that would occur if an application were made in person would
frustrate the effective execution of the warrant.
(2) If the magistrate issues the *search
warrant, he or she must inform the applicant, by telephone, fax or other
electronic means, of the terms of the warrant and the day on which and the time
at which it was signed.
(3) The applicant must then:
(a) complete a form of *search warrant 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 warrant was signed; and
(iii) the time at which the warrant was signed.
(4) The applicant must give the magistrate:
(a) the form of *search warrant completed
by the applicant; and
(b) if the information was unsworn under paragraph 229(2)(b)—the
sworn information;
by the end of the day after whichever first occurs:
(c) the warrant expires; or
(d) the warrant is executed.
(5) The magistrate must attach the form of
*search warrant completed by the magistrate to
the documents provided under subsection (4).
If:
(a) it is material, in any proceedings, for a court to be satisfied that
the exercise of a power under a *search warrant
issued under this Subdivision was duly authorised; and
(b) the form of search warrant signed by the magistrate is not produced in
evidence;
the court must assume that the exercise of the power was not duly
authorised unless the contrary is proved.
A person is guilty of 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
*search warrant under section 230;
and
(c) the name is not the name of the magistrate that issued the
warrant.
Maximum penalty: Imprisonment for 2 years or 120 penalty units, or
both.
A person is guilty of an offence if:
(a) the person states a matter in a form of
*search warrant under section 230;
and
(b) the matter departs in a material particular from the form authorised
by the magistrate.
Maximum penalty: Imprisonment for 2 years or 120 penalty units, or
both.
A person is guilty of an offence if:
(a) the person executes a document or presents a document to a person;
and
(b) the document purports to be a form of
*search warrant under section 230;
and
(c) the document:
(i) has not been approved by a magistrate under that section; or
(ii) departs in a material particular from the terms authorised by the
magistrate under that section.
Maximum penalty: Imprisonment for 2 years or 120 penalty units, or
both.
A person is guilty of an offence if:
(a) the person gives a magistrate a form of
*search warrant under section 230;
and
(b) the document is not the form of
*search warrant that the person
executed.
Maximum penalty: Imprisonment for 2 years or 120 penalty units, or
both.
A *search warrant that states that it
may be executed only during particular hours must not be executed outside those
hours.
(1) A *search warrant cannot authorise a
*strip search or a search of a person’s
body cavities.
(2) If a *search warrant authorises an
*ordinary search or a
*frisk search of a person:
(a) a different search from the one authorised must not be done under the
warrant; and
(b) the search must, if practicable, be conducted by a person of the same
sex as the person being searched.
(3) A person who is not an *authorised
officer but who has been authorised by the relevant
*executing officer to assist in executing a
*search warrant must not take part in searching
a person.
Executing officers
(1) In executing a *search warrant, an
*executing officer may obtain such assistance
and use such force against persons and things as is necessary and reasonable in
the circumstances.
Authorised officers
(2) In executing a *search warrant, an
*authorised officer who is assisting in
executing the warrant may use such force against persons and things as is
necessary and reasonable in the circumstances.
Persons who are not authorised officers
(3) In executing a *search warrant, a
person who is not an *authorised officer but
who has been authorised to assist in executing the warrant may use such force
against things as is necessary and reasonable in the circumstances.
(1) An *executing officer must,
before any person enters *premises under a
*search warrant:
(a) announce that he or she is authorised to enter the premises;
and
(b) give any person at the premises an opportunity to allow entry to the
premises; and
(c) if the occupier of the premises, or another person who apparently
represents the occupier, is present at the premises—identify himself or
herself to that person.
(2) The *executing officer is not
required to comply with subsection (1) if he or she believes on reasonable
grounds that immediate entry to the *premises
is required to ensure:
(a) the safety of a person (including an
*authorised officer); or
(b) that the effective execution of the warrant is not
frustrated.
(1) If the occupier of the *premises, or
another person who apparently represents the occupier, is present at premises
when a *search warrant is being executed, the
*executing officer or a
*person assisting must make available to the
person:
(a) a copy of the warrant; and
(b) a document setting out the rights and obligations of the
person.
(2) If a person is searched under a
*search warrant, the
*executing officer or a
*person assisting must show the person a copy
of the warrant.
(3) The copy of the warrant need not include the signature of the
magistrate or the seal of the relevant court.
(1) If an occupier of *premises, or
another person who apparently represents the occupier, is present at the
premises while a *search warrant is being
executed, the occupier or person has the right to observe the search being
conducted.
(2) However, the right ceases if:
(a) the person impedes the search; or
(b) the person is under arrest, and allowing the person to observe the
search being conducted would interfere with the objectives of the
search.
(3) This section does not prevent 2 or more areas of the
*premises being searched at the same
time.
(1) In executing a *search warrant, the
*executing officer or a
*person assisting may take photographs
(including video recordings) of the *premises
or of things at the premises:
(a) for a purpose incidental to the execution of the warrant; or
(b) if the occupier of the premises consents in writing.
(2) The *executing officer and a
*person assisting may complete the execution of
a *search warrant, provided that the warrant is
still in force, after all of them temporarily leave the
*premises:
(a) for not more than one hour; or
(b) for a longer period if the occupier of the premises consents in
writing.
(3) The execution of a *search warrant
may be completed if:
(a) the execution is stopped by an order of a court; and
(b) the order is later revoked or reversed on appeal; and
(c) the warrant is still in force.
(1) The *executing officer or
*person assisting may bring to the
*premises any equipment reasonably necessary to
examine or process a thing found at the premises in order to determine whether
it may be seized under the *search warrant in
question.
(2) The *executing officer or a
*person assisting may operate equipment already
at the *premises to carry out such an
examination or processing if he or she believes on reasonable grounds
that:
(a) the equipment is suitable for this purpose; and
(b) the examination or processing can be carried out without damaging the
equipment or thing.
(1) A thing found at the *premises may be
moved to another place for examination or processing in order to determine
whether it may be seized under a *search
warrant if:
(a) both of the following apply:
(i) there are reasonable grounds to believe that the thing contains or
constitutes *tainted property or
*evidential material;
(ii) it is significantly more practicable to do so having regard to the
timeliness and cost of examining or processing the thing at another place and
the availability of expert assistance; or
(b) the occupier of the premises consents in writing.
(2) The thing may be moved to another place for examination or processing
for no longer than 72 hours.
(3) An *executing officer may apply to a
magistrate for an extension of that time if the officer believes on reasonable
grounds that the thing cannot be examined or processed within 72
hours.
(4) The *executing officer must give
notice of the application to the occupier of
*premises, and the occupier is entitled to be
heard in relation to the application.
(5) If a thing is moved to another place under subsection (1), the
*executing officer must, if it is practicable
to do so:
(a) inform the occupier of the address of the place and the time at which
the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during
the examination or processing.
(1) The *executing officer or a
*person assisting may operate electronic
equipment at the *premises to access
*data (including data not held at the premises)
if he or she believes on reasonable grounds that:
(a) the data might constitute *evidential
material; and
(b) the equipment can be operated without damaging it.
Note: An executing officer can obtain an order requiring a
person with knowledge of a computer or computer system to provide assistance:
see section 246.
(2) If the *executing officer or
*person assisting believes that any
*data accessed by operating the electronic
equipment might constitute *evidential
material, he or she may:
(a) copy the data to a disk, tape or other similar device brought to the
*premises; or
(b) if the occupier of the premises agrees in writing—copy the data
to a disk, tape or other similar device at the premises;
and take the device from the premises.
(3) The *executing officer or a
*person assisting may do the following things
if he or she finds that any *evidential
material is accessible using the equipment:
(a) seize the equipment and any disk, tape or other similar
device;
(b) if the material can, by using facilities at the
*premises, be put in documentary
form—operate the facilities to put the material in that form and seize the
documents so produced.
(4) An *authorised officer may seize
equipment under paragraph (3)(a) only if:
(a) it is not practicable to copy the
*data as mentioned in subsection (2) or to
put the material in documentary form as mentioned in paragraph (3)(b);
or
(b) possession of the equipment by the occupier could constitute an
offence.
(1) An *executing officer may apply to a
magistrate for an order requiring a specified person to provide any information
or assistance that is reasonable or necessary to allow the officer to do one or
more of the following:
(a) access *data held in or accessible
from a computer that is on the
*premises;
(b) copy the data to a *data storage
device;
(c) convert the data into documentary form.
(2) The magistrate may make an order if satisfied that:
(a) there are reasonable grounds for suspecting that
*evidential material is accessible from the
computer; and
(b) the specified person is:
(i) reasonably suspected of possessing, or having under his or her
control, *tainted property or evidential
material; or
(ii) the owner or lessee of the computer; or
(iii) an employee of the owner or lessee of the computer; and
(c) the specified person has knowledge of:
(i) the computer or a computer network of which the computer forms a part;
or
(ii) measures applied to protect *data
held in or accessible from the computer.
(3) A person is guilty of an offence if the person fails to comply with
the order.
Maximum penalty: Imprisonment for 6 months or 30 penalty units, or
both.
(1) If the *executing officer or a
*person assisting believes on reasonable
grounds that:
(a) *evidential material may be
accessible by operating electronic equipment at the
*premises; and
(b) expert assistance is required to operate the equipment; and
(c) if he or she does not take action, the material may be destroyed,
altered or otherwise interfered with;
he or she may do whatever is necessary to secure the equipment, whether by
locking it up, placing a guard or otherwise.
(2) The *executing officer or a
*person assisting must give notice to the
occupier of the *premises of:
(a) his or her intention to secure equipment; and
(b) the fact that the equipment may be secured for up to 24
hours.
(3) The equipment may be secured:
(a) for a period not exceeding 24 hours; or
(b) until the equipment has been operated by the expert;
whichever happens first.
(4) If the *executing officer or a
*person assisting believes on reasonable
grounds that the expert assistance will not be available within 24 hours, he or
she may apply to the magistrate to extend the period.
(5) The *executing officer or a
*person assisting must notify the occupier of
the *premises of his or her intention to apply
for an extension, and the occupier is entitled to be heard in relation to the
application.
(6) The provisions of this Division relating to the issue of
*search warrants apply, with such modifications
as are necessary, to the issuing of an extension.
(1) This section applies if:
(a) damage is caused to equipment as a result of it being operated as
mentioned in section 243 or 245; or
(b) the *data recorded on the equipment
is damaged or programs associated with its use are damaged or
corrupted;
because:
(c) insufficient care was exercised in selecting the person who was to
operate the equipment; or
(d) insufficient care was exercised by the person operating the
equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of
the *data or programs, such reasonable
compensation for the damage or corruption as they agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the
owner or user may institute proceedings in the Federal Court of Australia for
such reasonable amount of compensation as the Court determines.
(4) In determining the amount of compensation payable, regard is to be had
to whether the occupier of the *premises and
his or her employees and *agents, if they were
available at the time, provided any appropriate warning or guidance on the
operation of the equipment.
(5) Compensation is payable out of money appropriated by the
Parliament.
(6) For the purposes of subsection (1), damage to
*data includes damage by erasure of data or
addition of other data.
(1) The occupier of the *premises, or
another person who apparently represents the occupier and who is present when a
*search warrant is executed, may request an
*authorised officer who seizes:
(a) a document, film, computer file or other thing that can be readily
copied; or
(b) a storage device the information in which can be readily
copied;
to give the occupier or other person a copy of the thing or the
information.
(2) The officer must do so as soon as practicable after the
seizure.
(3) However, the officer is not required to do so if:
(a) the thing was seized under subsection 245(2) or paragraph 245(3)(b)
(use of electronic equipment at premises); or
(b) possession by the occupier of the document, film, computer file, thing
or information could constitute an offence.
If:
(a) documents were on, or accessible from, the
*premises of a
*financial institution at the time when a
*search warrant relating to those premises was
executed; and
(b) those documents were not able to be located at that time;
and
(c) the financial institution provides them to the
*executing officer as soon as practicable after
the execution of the warrant;
then the documents are taken to have been seized under the
warrant.
(1) This section applies if an
*authorised officer suspects, on reasonable
grounds, that:
(a) a thing constituting *tainted
property or *evidential material is in or on a
*conveyance; and
(b) it is necessary to exercise a power under subsection (2) in order
to prevent the thing from being concealed, lost or destroyed; and
(c) it is necessary to exercise the power without the authority of a
*search warrant because the circumstances are
serious and urgent.
(2) The officer may:
(a) stop and detain the *conveyance;
and
(b) search the conveyance and any container in or on the conveyance, for
the thing; and
(c) seize the thing if he or she finds it there.
(3) If, in the course of searching for the thing, the officer finds
another thing constituting *tainted property or
*evidential material, the officer may seize
that thing if he or she suspects, on reasonable grounds, that:
(a) it is necessary to seize it in order to prevent its concealment, loss
or destruction; and
(b) it is necessary to seize it without the authority of a
*search warrant because the circumstances are
serious and urgent.
(4) The officer must exercise his or her powers subject to
section 252.
When an *authorised officer exercises a
power under section 251 in relation to a
*conveyance, he or she:
(a) may use such assistance as is necessary; and
(b) must search the conveyance in a public place or in some other place to
which members of the public have ready access; and
(c) must not detain the conveyance for longer than is necessary and
reasonable to search it and any container found in or on the conveyance;
and
(d) may use such force as is necessary and reasonable in the
circumstances, but must not damage the conveyance or any container found in or
on the conveyance by forcing open a part of the conveyance or container
unless:
(i) the person (if any) apparently in charge of the conveyance has been
given a reasonable opportunity to open that part or container; or
(ii) it is not possible to give that person such an
opportunity.
(1) The *executing officer or a
*person assisting must provide a receipt
for:
(a) a thing seized under a warrant; or
(b) a thing moved under subsection 244(1) (moving things to another place
for examination or processing); or
(c) a thing seized under section 251 (searches without warrant in
emergency situations).
(2) One receipt may cover 2 or more things.
(1) If a thing is seized under a *search
warrant or under section 251, the
*responsible custodian of the thing
must:
(a) arrange for the thing to be kept until it is dealt with in accordance
with another provision of this Act; and
(b) ensure that all reasonable steps are taken to preserve the thing while
it is so kept.
(2) The responsible custodian of a thing that is seized
under a *search warrant or under
section 251 is the head of the
*enforcement agency of the
*authorised officer who is responsible for
executing the warrant, or who seized the thing under section 251.
If:
(a) a thing is seized under a *search
warrant or under section 251; and
(b) while the thing is in the possession of the responsible custodian, a
*forfeiture order is made covering the
thing;
the *responsible custodian must deal with
the thing as required by the order.
(1) If:
(a) a thing is seized under a *search
warrant or under section 251; and
(b) it is seized on the ground that a person believes on reasonable
grounds that it is:
(i) *evidential material; or
(ii) evidential material (within the meaning of the Crimes Act
1914) relating to an *indictable offence;
and
(c) either:
(i) the reason for the thing’s seizure no longer exists or it is
decided that the thing is not to be used in evidence; or
(ii) if the thing was seized under section 251—the period of 60
days after the thing’s seizure ends;
the *authorised officer responsible for
executing the warrant, or who seized the thing under section 251, must take
reasonable steps to return the thing to the person from whom it was seized or to
the owner if that person is not entitled to possess it.
(2) However, the *authorised officer does
not have to take those steps if:
(a) in a subparagraph (1)(c)(ii) case:
(i) proceedings in respect of which the thing might afford evidence have
been instituted before the end of the 60 days and have not been completed
(including an appeal to a court in relation to those proceedings); or
(ii) there is an order in force under section 258 (retaining things
for a further period); or
(b) in any case—the authorised officer is otherwise authorised (by a
law, or an order of a court, of the Commonwealth, a State, the Australian
Capital Territory or the Northern Territory) to retain, destroy or dispose of
the thing; or
(c) in any case—the thing is forfeited or forfeitable to the
Commonwealth or is the subject of a dispute as to ownership.
(1) This section applies if an
*authorised officer has seized a thing under
this Part and proceedings in respect of which the thing might afford evidence
have not commenced before the end of:
(a) 60 days after the seizure; or
(b) a period previously specified in an order of a magistrate under this
section.
(2) The *authorised officer may apply to
a magistrate for an order that the officer may retain the thing for a further
period.
(3) Before making the application, the
*authorised officer must:
(a) take reasonable steps to discover whose interests would be affected by
the retention of the thing; and
(b) if it is practicable to do so, notify each person whom the officer
believes to be such a person of the proposed application.
(1) The magistrate may order that the
*authorised officer who made an application
under section 257 may retain the thing if the magistrate is satisfied
that it is necessary for the officer to do so for the purpose of initiating or
conducting proceedings under this Act.
(2) The order must specify the period for which the officer may retain the
thing.
(1) A person who claims an *interest in a
thing that has been seized under a *search
warrant, or under section 251, on the ground that a person believes on
reasonable grounds that it is *tainted property
may apply to a court for an order that the thing be returned to the
person.
(2) The court must be a court of the State or Territory in which the
warrant was issued that has *proceeds
jurisdiction.
(3) The court must order the *responsible
custodian of the thing to return the thing to the applicant if the court is
satisfied that:
(a) the applicant is entitled to possession of the thing; and
(b) the thing is not *tainted property in
relation to the relevant offence; and
(c) the person in respect of whose suspected commission of, or conviction
for, an offence the thing was seized has no
*interest in the thing.
(4) If the court makes such an order, the
*responsible custodian of the thing must
arrange for the thing to be returned to the applicant.
(1) If:
(a) a thing has been seized under a
*search warrant, or under section 251, on
the ground that a person believes on reasonable grounds that it is
*tainted property; and
(b) at the time when the thing was seized, an application had not been
made for a *restraining order or a
*forfeiture order that would cover the thing;
and
(c) such an application is not made during the period of 14 days after the
day on which the thing was seized;
the *responsible custodian of the thing
must arrange for the thing to be returned to the person from whose possession it
was seized as soon as practicable after the end of that period.
(2) However, this section does not apply to a thing to which
section 261 applies.
(1) If:
(a) a thing has been seized under a
*search warrant, or under section 251, on
the ground that a person believes on reasonable grounds that it is
*tainted property; and
(b) but for this subsection, the
*responsible custodian of the thing would be
required to arrange for the thing to be returned to a person as soon as
practicable after the end of a particular period; and
(c) before the end of that period, a
*restraining order is made covering the
thing;
then:
(d) if the restraining order directs the
*Official Trustee to take custody and control
of the thing—the responsible custodian must arrange for the thing to be
given to the Official Trustee in accordance with the restraining order;
or
(e) if the court that made the restraining order has made an order under
subsection (3) in relation to the thing—the responsible custodian
must arrange for the thing to be kept until it is dealt with in accordance with
another provision of this Act.
(2) If:
(a) a thing has been seized under a
*search warrant, or under section 251, on
the ground that a person believes on reasonable grounds that it is
*tainted property; and
(b) a *restraining order is made in
relation to the thing; and
(c) at the time when the restraining order is made, the thing is in the
possession of the responsible custodian;
the *responsible custodian of the thing
may apply to the court that made the restraining order for an order that the
responsible custodian retain possession of the property.
(3) The court may, if satisfied that there are reasonable grounds for
believing that the property may afford evidence as to the commission of an
offence, make an order that the responsible custodian may retain the property
for so long as the property is required as evidence as to the commission of that
offence.
(4) A witness who is giving evidence relating to an application for an
order under subsection (2) is not required to answer a question or produce
a document if the court is satisfied that the answer or document may prejudice
the investigation of, or the prosecution of a person for, an offence.
If:
(a) a thing has been seized under a
*search warrant, or under section 251, on
the ground that a person believes on reasonable grounds that it is
*tainted property; and
(b) an application is made for a
*restraining order or a
*forfeiture order that would cover the thing;
and
(c) the application is refused; and
(d) at the time when the application is refused, the thing is in the
possession of the *responsible
custodian;
the *responsible custodian must arrange
for the thing to be returned to the person from whose possession it was seized
as soon as practicable after the refusal.
This Part is not intended to limit or exclude the operation of another
law of the Commonwealth, a State or a Territory relating to:
(a) the search of persons or *premises;
or
(b) the stopping, detaining or searching of
*conveyances; or
(c) the seizure of things.
This Part does not affect the law relating to
*legal professional privilege.
A magistrate in a State or a
*self-governing Territory may issue a
*search warrant in:
(a) that State or Territory; or
(b) another State or self-governing Territory if he or she is satisfied
that there are special circumstances that make the issue of the warrant
appropriate; or
(c) a *non-governing Territory.
A person is guilty of 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
(c) the statement is made in, or in connection with, an application for a
*search warrant.
Maximum penalty: Imprisonment for 2 years or 120 penalty units, or
both.
(1) The powers conferred on the *Official
Trustee under this Part may be exercised, and the duties imposed on the Official
Trustee under this Part are to be performed, in relation to property if a court
orders the Official Trustee to take custody and control of the property under
section 38.
(2) This property is controlled property.
(3) However, powers conferred on the
*Official Trustee under
Division 4 may be exercised, and the duties imposed on the Official
Trustee under Division 4 are to be performed, in relation to any property
that is the subject of a *restraining order,
whether or not the property is *controlled
property.
(1) The *Official Trustee, or another
person authorised in writing by the Official Trustee to exercise powers under
this section, may, for the purpose of:
(a) ensuring that all the *controlled
property is under the Official Trustee’s custody and control; or
(b) ensuring the effective exercise of the Official Trustee’s powers
or the performance of the Official Trustee’s duties, under this Part in
relation to the controlled property;
require:
(c) the *suspect in relation to the
*restraining order covering the controlled
property; or
(d) any other person entitled to, or claiming an
*interest in, the controlled
property;
to produce specified *books in accordance
with this section.
(2) The requirement must be by written notice.
(3) The requirement must be to produce the
*books:
(a) to a specified person; and
(b) at a specified place, and within a specified period or at a specified
time on a specified day, being a place, and a period or a time and day, that are
reasonable in the circumstances.
(4) The *books must be:
(a) in the possession of the person of whom the requirement is made;
and
(b) in the opinion of the *Official
Trustee or other person making the requirement, relevant for the purpose for
which they are required.
(5) If the *books are so produced, the
*Official Trustee or other person making the
requirement, or the specified person:
(a) may make copies of, or take extracts from, the books; and
(b) may require:
(i) the person required under this section to produce the books;
or
(ii) any other person who was a party to the compilation of the
books;
to explain to the best of his or her knowledge and belief any matter
about the compilation of the books or to which the books relate.
(6) If the *books are not so produced,
the *Official Trustee or other person making
the requirement, or the specified person, may require the person required under
this section to produce the books to state, to the best of his or her knowledge
or belief:
(a) where the books may be found; and
(b) who last had possession, custody or control of the books and where
that person may be found.
(7) The production of *books under this
section does not prejudice a lien that a person has on the books.
The *suspect in relation to the
*restraining order covering the
*controlled property must, unless excused by
the *Official Trustee or prevented by illness
or other sufficient cause:
(a) give to the Official Trustee such
*books (including books of an associated entity
(within the meaning of the Bankruptcy Act 1966) of the person)
that:
(i) are in the person’s possession; and
(ii) relate to any of the person’s affairs;
as the Official Trustee requires; and
(b) attend the Official Trustee whenever the Official Trustee reasonably
requires; and
(c) give to the Official Trustee such information about any of the
person’s conduct and examinable affairs as the Official Trustee requires;
and
(d) give to the Official Trustee such assistance as the Official Trustee
reasonably requires, in connection with the exercise of the Official
Trustee’s powers or the performance of the Official Trustee’s duties
under this Part in relation to the controlled property.
(1) The *Official Trustee, by written
notice given to any person, may require the person:
(a) to give to the Official Trustee such information as the Official
Trustee requires for the purposes of the exercise of the Official
Trustee’s powers or the performance of the Official Trustee’s duties
under this Part; and
(b) to attend before the Official Trustee, or person authorised in writing
by the Official Trustee to exercise powers under this paragraph, and:
(i) give evidence; and
(ii) produce all *books in the possession
of the person notified;
relating to any matters connected with the exercise of the Official
Trustee’s powers or the performance of the Official Trustee’s duties
under this Part.
(2) The *Official Trustee or person
authorised under paragraph (1)(b):
(a) may require the information or evidence to be given on oath, and
either orally or in writing; and
(b) for that purpose may administer an oath.
(1) A person is not excused from giving information or producing a
document under this Part on the ground that to do so would tend to incriminate
the person or expose the person to a penalty.
(2) However, in the case of a natural person:
(a) the information given; or
(b) the giving of the document; or
(c) any information, document or thing obtained as a direct or indirect
consequence of giving the information or document;
is not admissible in evidence in *criminal
proceedings against the natural person, except proceedings under, or arising out
of, section 137.1 or 137.2 of the Criminal Code 1995 (false and
misleading information and documents) in relation to giving the information or
document.
(1) A person is guilty of an offence if the person refuses or fails to
comply with a requirement under section 268 or 269.
Maximum penalty: Imprisonment for 6 months or 30 penalty units, or
both.
(2) A person is guilty of an offence if the person obstructs or hinders a
person in the exercise of a power under section 268 or 269.
Maximum penalty: Imprisonment for 6 months or 30 penalty units, or
both.
A person is guilty of an offence if the person refuses or fails to comply
with a notice given to the person under paragraph 270(1)(a).
Maximum penalty: Imprisonment for 6 months or 30 penalty units, or
both.
(1) A person is guilty of an offence if:
(a) the person is required by a notice under paragraph 270(1)(b) to attend
before the *Official Trustee or a person
authorised under that paragraph; and
(b) the person:
(i) fails to attend as required by the notice; or
(ii) fails to appear and report from day to day, without being excused or
released from further attendance by the Official Trustee or person authorised
under that paragraph, as the case may be.
Maximum penalty: Imprisonment for 6 months or 30 penalty units, or
both.
A person is guilty of an offence if:
(a) the person attends before the
*Official Trustee, or a person authorised under
paragraph 270(1)(b), as required by a notice under that paragraph; and
(b) the person refuses or fails:
(i) to be sworn or to make an affirmation; or
(ii) to answer a question that the person is required to answer by the
Official Trustee or a person authorised under that paragraph, as the case may
be; or
(iii) to produce any books that the person is required by the notice to
produce.
Maximum penalty: Imprisonment for 6 months or 30 penalty units, or
both.
The *Official Trustee may do anything
that is reasonably necessary for the purpose of preserving the
*controlled property, including the
following:
(a) becoming a party to any civil proceedings affecting the
property;
(b) ensuring that the property is insured;
(c) realising or otherwise dealing with any of the property that is
securities or investments;
(d) if any of the property is a business:
(i) employing, or terminating the employment of, persons in the business;
or
(ii) doing anything necessary or convenient to carry on the business on a
sound commercial basis.
The *Official Trustee may exercise the
rights attaching to any of the *controlled
property that is shares as if the Official Trustee were the registered holder of
the shares, to the exclusion of the registered holder.
(1) The *Official Trustee may destroy the
*controlled property if:
(a) it is in the public interest to do so; or
(b) it is required for the health or safety of the public.
(2) The *Official Trustee may dispose of
the *controlled property, by sale or other
means:
(a) with the agreement of all parties with an
*interest in the property; or
(b) if the property is likely to lose value in the opinion of the Official
Trustee; or
(c) if, in the Official Trustee’s opinion, the cost of controlling
the property until the Official Trustee finally deals with it is likely to
exceed, or represent a significant proportion of, the value of the property when
it is finally dealt with.
(1) The *Official Trustee must give
written notice of the proposed destruction or disposal to:
(a) the owner of the *controlled
property; and
(b) any other person whom the Official Trustee has reason to believe may
have an *interest in the property.
(2) A person who has been so notified may object in writing to the
*Official Trustee within 14 days of receiving
the notice.
(1) If the *Official Trustee wishes to
continue with a proposed destruction or disposal that has been objected to, the
Official Trustee must apply to the court that made the
*restraining order covering the
*controlled property for an order that the
Official Trustee may destroy or dispose of the property.
(2) The court must make an order to destroy the
*controlled property if:
(a) it is in the public interest to do so; or
(b) it is required for the health or safety of the public.
(3) The court may take into account any matters it sees fit in determining
whether it is in the public interest to destroy the
*controlled property, including:
(a) the use to which the property would be put if it were sold;
and
(b) whether the cost of restoring the property to a saleable condition
would exceed its realisable value; and
(c) whether the cost of sale would exceed its realisable value;
and
(d) whether the sale of the property would otherwise be legal.
(4) The court may make an order to dispose of the
*controlled property if, in the court’s
opinion:
(a) the property is likely to lose value; or
(b) the cost of controlling the property until it is finally dealt with by
the *Official Trustee is likely to exceed, or
represent a significant proportion of, the value of the property when it is
finally dealt with.
(5) The court may also:
(a) order that a specified person bear the costs of controlling the
*controlled property until it is finally dealt
with by the *Official Trustee; or
(b) order that a specified person bear the costs of an objection to a
proposed destruction or disposal of the property.
Amounts realised from any sale of the
*controlled property under
section 278:
(a) are taken to be covered by the
*restraining order that covered the property;
and
(b) if the restraining order covered the property on the basis that the
property was *proceeds of an offence or an
*instrument of an offence to which the order
relates—continue to be proceeds of that offence or an instrument of that
offence.
(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, an amount equal to:
(a) the *penalty amount under a
*pecuniary penalty order; or
(b) the *literary proceeds amount under a
*literary proceeds order.
(2) The court that makes the *pecuniary
penalty order or *literary proceeds order may
include such a direction in the order if:
(a) the order is made against a person in relation to one or more
offences; and
(b) the *restraining order has already
been made against that person in relation to that offence or one or more of
those offences, or in relation to one or more
*related offences.
(3) The court that makes the *restraining
order may include such a direction in the order if:
(a) the *pecuniary penalty order or
*literary proceeds order has been made against
a person in relation to one or more offences; and
(b) the restraining order is subsequently made:
(i) against that person in relation to that offence or one or more of
those offences; or
(ii) against property of another person in relation to which an order is
in force under subsection 141(1) in relation to the pecuniary penalty order, or
under subsection 168(1) in relation to the literary proceeds order.
(4) The court that made the *pecuniary
penalty order, the *literary proceeds order or
the *restraining order may, on application by
the *DPP, make the direction if:
(a) the pecuniary penalty order or literary proceeds order has been made
against a person in relation to one or more offences; and
(b) the restraining order has been made:
(i) against that person in relation to that offence or one or more of
those offences; or
(ii) against property of another person in relation to which an order is
in force under subsection 141(1) in relation to the pecuniary penalty order, or
under subsection 168(1) in relation to the literary proceeds order.
(1) For the purposes of enabling the
*Official Trustee to comply with a direction
given by a court under section 282, the court may, in the order in which
the direction is given or by a subsequent order:
(a) direct the Official Trustee to sell or otherwise dispose of such of
the property that is subject to the
*restraining order as the court specifies;
and
(b) appoint an officer of the court or any other person:
(i) to execute any deed or instrument in the name of a person who owns or
has an *interest in the property; and
(ii) to do any act or thing necessary to give validity and operation to
the deed or instrument.
(2) The execution of the deed or instrument by the person appointed by an
order under this section has the same force and validity as if the deed or
instrument had been executed by the person who owned or had the
*interest in the property.
(1) If the *Official Trustee is given a
direction under section 282 in relation to property, the Official Trustee
must, as soon as practicable after the end of the appeal period under
section 285:
(a) to the extent that the property is not money—sell or otherwise
dispose of the property; and
(b) apply:
(i) to the extent that the property is money—that money;
and
(ii) the amounts received from the sale or disposition of the other
property;
in payment of the costs, charges, expenses and remuneration, of the kind
referred to in subsection 288(1), incurred or payable in connection with the
*restraining order and payable to the Official
Trustee under the regulations; and
(c) credit the remainder of the money and amounts received to the
*Confiscated Assets Account as required by
section 296.
(2) However, if the remainder referred to in paragraph (1)(c) exceeds
the *penalty amount or
*literary proceeds amount (as the case
requires), the *Official Trustee
must:
(a) credit to the *Confiscated Assets
Account as required by section 296 an amount equal to the penalty amount or
literary proceeds amount; and
(b) pay the balance to the person whose property was subject to the
*restraining order.
(1) If the *Official Trustee is given a
direction under section 282 in relation to property, the Official Trustee
must not:
(a) if the property is money—apply the money under section 284
until the end of the appeal period under this section; and
(b) if the property is not money—sell or otherwise dispose of the
property until the end of that period.
(2) The appeal period under this section is the period ending:
(a) if the period provided for lodging an appeal against the
*pecuniary penalty order or
*literary proceeds order to which the direction
relates has ended without such an appeal having been lodged—at the end of
that period; or
(b) if an appeal against the pecuniary penalty order or literary proceeds
order has been lodged—when the appeal lapses or is finally
determined.
(3) However, if the person is convicted of the offence, or any of the
offences, to which the *pecuniary penalty order
or *literary proceeds order relates, the appeal
period is:
(a) the period ending:
(i) if the period provided for lodging an appeal against the conviction or
convictions to which the direction relates has ended without such an appeal
having been lodged—at the end of that period; or
(ii) if an appeal against the conviction or convictions has been
lodged—when the appeal lapses or is finally determined; or
(b) the appeal period under subsection (2);
whichever ends last.
(4) For the purposes of subsection (3):
(a) if the person is to be taken to have been convicted of an offence
because of paragraph 331(1)(b)—references in that subsection to lodging of
an appeal against the conviction are references to lodging of an appeal against
the finding that the person is guilty of the offence; and
(b) if the person is to be taken to have been convicted of an offence
because of paragraph 331(1)(c)—references in that subsection to lodging of
an appeal against the conviction are references to lodging of an appeal against
the person’s conviction of the other offence referred to in that
paragraph.
(1) 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 a *pecuniary
penalty order, the person’s liability under the pecuniary penalty order
is, to the extent of the credit, discharged.
(2) 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 a *literary
proceeds order, the person’s liability under the literary proceeds order
is, to the extent of the credit, discharged.
Money that is in the custody or control of the
*Official Trustee because of a
*restraining order must not be paid into the
Common Investment Fund under section 20B of the Bankruptcy Act 1966
(despite anything in that Act).
(1) The regulations may make provision relating to:
(a) the costs, charges and expenses incurred in connection with the
*Official Trustee’s exercise of powers
and performance of functions or duties under this Act or under Part VI of
the *Mutual Assistance Act; and
(b) the Official Trustee’s remuneration in respect of those
activities.
(2) An amount equal to each amount of remuneration that the
*Official Trustee receives under the
regulations is to be paid into the Consolidated Revenue Fund.
(1) The *Official Trustee may apply any
income generated from *controlled property to
the payment of amounts payable to the Official Trustee, in relation to the
property, under regulations made for the purposes of section 288.
(2) However, if the *restraining order
relating to the *controlled property ceases to
be in force and the property is returned to its owner, the
*Official Trustee must arrange for an amount to
be paid to the owner that is equal to the difference between:
(a) the sum of all the amounts applied under this section in relation to
the property; and
(b) the sum of all the amounts of expenditure by the
*Official Trustee that were necessary for
maintaining the property or generating the income from property.
(3) This section does not affect other ways in which the
*Official Trustee may recover amounts payable
to the Official Trustee under regulations made for the purposes of
section 288.
(1) The *Official Trustee is not
personally liable for:
(a) any loss or damage, sustained by a person claiming an
*interest in all or part of the
*controlled property, arising from the Official
Trustee taking custody and control of the property; or
(b) the cost of proceedings taken to establish an interest in the
property;
unless the court is satisfied that the Official Trustee is guilty of
negligence in respect of taking custody and control of the property.
(2) The *Official Trustee is not
personally liable for:
(a) any rates, land tax or municipal or statutory charges imposed under a
law of the Commonwealth, a State or a Territory in respect of the
*controlled property, except out of any rents
or profits that the Official Trustee receives from the property; and
(b) if, in taking custody and control of the property, the Official
Trustee carries on a business—any payment in respect of long service leave
or extended leave:
(i) for which the person who carried on the business before the Official
Trustee was liable; or
(ii) to which an employee of the Official Trustee in its capacity as
custodian and controller of the business, or a legal representative of such an
employee, becomes entitled after the
*restraining order covering the property was
made; and
(c) any other expenses in respect of the property.
(1) The Commonwealth must indemnify the
*Official Trustee against any personal
liability (including any personal liability as to costs) incurred by it for any
act done, or omitted to be done, by it in the exercise, or purported exercise,
of its powers and duties under this Act.
(2) The Commonwealth has the same right of reimbursement in respect of a
payment made under this indemnity as the
*Official Trustee would have if the Official
Trustee had made the payment.
(3) This same right of reimbursement includes reimbursement under another
indemnity given to the *Official
Trustee.
(4) Nothing in subsection (1) affects:
(a) any other right the *Official Trustee
has to be indemnified in respect of any personal liability referred to in that
subsection; or
(b) any other indemnity given to the Official Trustee in respect of any
such personal liability.
(1) The *Official Trustee must pay to a
*legal aid commission, out of property of a
*suspect that is covered by a
*restraining order:
(a) the commission’s legal costs for representing the suspect in
proceedings for defending any criminal charge against the suspect; and
(b) the commission’s legal costs for representing the suspect in
proceedings under this Act.
(2) The *Official Trustee must pay to a
*legal aid commission, out of the property of a
person (who is not the *suspect) that is
covered by a *restraining order, the
commission’s legal costs for representing the person in proceedings under
this Act.
(3) However, this section only applies to the extent that the
commission’s representation of the suspect or other person is in
accordance with guidelines included in an applicable agreement entered into with
the Commonwealth relating to provision of legal assistance in Commonwealth
matters.
(1) The *Official Trustee must pay to a
*legal aid commission, out of the
*Confiscated Assets Account, legal costs
mentioned in section 292 if:
(a) the Official Trustee certifies that the costs exceed the value of the
property of the person that is covered by the
*restraining order; and
(b) the costs have been certified by:
(i) the Attorney-General; or
(ii) a *senior Departmental officer
authorised by the Attorney-General for the purposes of this section;
and
(c) the Minister consents to the payment.
The amount that the Official Trustee must pay is the amount of the
excess.
(2) The *Official Trustee must pay to a
*legal aid commission, out of the
*Confiscated Assets Account, legal costs
mentioned in section 292 if:
(a) the Official Trustee is satisfied that it will take considerable time
to dispose of the property of the person that is covered by the
*restraining order in order to pay the costs;
and
(b) the value of the property has been assessed; and
(c) the costs have been certified by:
(i) the Attorney-General; or
(ii) a *senior Departmental officer
authorised by the Attorney-General for the purposes of this section;
and
(d) the Minister consents to the payment.
However, the Official Trustee must not pay the legal aid commission more
than the assessed value of the property.
The *DPP or the
*Official Trustee may, for the purpose of a
*legal aid commission determining whether a
person should receive legal assistance under this Part, disclose to the
commission information obtained under this Act that is relevant to making that
determination.
(1) There is hereby established the Confiscated Assets Account.
(2) The Account is a Special Account for the purposes of the Financial
Management and Accountability Act 1997.
(1) There must be credited to the
*Confiscated Assets Account amounts equal
to:
(a) *proceeds of confiscated assets;
and
(b) money paid to the Commonwealth by a foreign country, within the
meaning of the *Mutual Assistance Act, under a
treaty or arrangement providing for mutual assistance in criminal matters;
and
(c) money paid to the Commonwealth under a
*foreign pecuniary penalty order registered
under section 34 of the Mutual Assistance Act; and
(d) money deriving from the enforcement of an
*interstate forfeiture order registered in a
*non-governing Territory, other than money
covered by a direction under subsection 70(2) or 100(2); and
(e) the Commonwealth’s share, under the
*equitable sharing program, of proceeds
resulting from a breach of the criminal law of a State or a
*self-governing Territory; and
(f) money, other than money referred to in paragraph (b), paid to the
Commonwealth by a foreign country in connection with assistance provided by the
Commonwealth in relation to the recovery by that country of the proceeds of
*unlawful activity or the investigation or
prosecution of unlawful activity.
(2) Subject to section 299, all amounts credited to the
*Confiscated Assets Account are to be
identified in accordance with the regulations as
*distributable funds or
*suspended funds and are to retain that
identity while they remain within the Account.
(3) The following are proceeds of confiscated
assets:
(a) the remainder of the money and amounts referred to in paragraph
70(1)(c);
(b) the amount referred to in paragraph 89(1)(c) or 90(f);
(c) the remainder of the money and amounts referred to in paragraph
100(1)(c);
(d) the amount referred to in paragraph 105(1)(c) or 106(f);
(e) the amount referred to in subsection 140(1);
(f) the amount referred to in subsection 167(1);
(g) the remainder of the money and amounts referred to in paragraph
284(1)(c);
(h) the amount referred to in paragraph 284(2)(a);
(i) the remainder of the money referred to in paragraph 35G(1)(b) of the
*Mutual Assistance Act;
(j) the remainder of the proceeds referred to in paragraph 35G(2)(c) of
the *Mutual Assistance Act;
(k) the remainder of the proceeds referred to in paragraph 9A(c) of the
Crimes Act 1914;
(l) the money referred to in paragraph 208DA(3)(a) of the Customs Act
1901;
(m) the remainder of the proceeds referred to in paragraph 208DA(3)(b) of
the Customs Act 1901;
(n) the amount referred to in subsection 243B(4) of the Customs Act
1901;
(o) the remainder of the money referred to in paragraph 243G(6)(a) of the
Customs Act 1901;
(p) the remainder of the proceeds referred to in paragraph 243G(6)(b) of
the Customs Act 1901.
(4) The equitable sharing program is an arrangement under
which any or all of the following happen:
(a) the Commonwealth shares with a participating State or
*self-governing Territory a proportion of any
*proceeds of any
*unlawful activity recovered under a
Commonwealth law, if, in the Minister’s opinion, that State or Territory
has made a significant contribution to the recovery of those proceeds or to the
investigation or prosecution of the relevant unlawful activity;
(b) each participating State or Territory shares with the Commonwealth any
proceeds resulting from a breach of the criminal law of that State or Territory
if, in the opinion of the appropriate Minister of that State or Territory,
officers of an *enforcement agency have made a
significant contribution to the recovery of those proceeds;
(c) the Commonwealth shares with a foreign country a proportion of any
proceeds of any unlawful activity recovered under a Commonwealth law if, in the
Minister’s opinion, the foreign country has made a significant
contribution to the recovery of those proceeds or to the investigation or
prosecution of the unlawful activity.
(1) The following are purposes of the
*Confiscated Assets Account in respect of
*suspended funds:
(a) making any payments to the States, to
*self-governing Territories or to foreign
countries that the Minister considers are appropriate under the
*equitable sharing program;
(b) making any payments under a program approved by the Minister under
section 298;
(c) making any payments that the Minister considers necessary to satisfy
the Commonwealth’s obligations in respect of:
(i) a registered *foreign
forfeiture order; or
(ii) an order registered under section 45 of the International War
Crimes Tribunals Act 1995; or
(iii) a registered *foreign pecuniary
penalty order;
(d) making any payments to a State or to a self-governing Territory that
the Attorney-General considers necessary following a crediting to the Account
under paragraph 296(1)(b) of money received from a foreign country;
(e) paying the *Official Trustee amounts
that were payable to the Official Trustee under regulations made for the
purposes of paragraph 288(1)(a) but that the Official Trustee has been unable to
recover;
(f) paying the annual management fee for the Official Trustee as
specified in the regulations;
(g) making any payments by way of restitution that are required under
paragraph 73(2)(d) or 88(1)(b), subparagraph 102(1)(d)(ii) or subsection
289(2);
(h) making any payments to a *legal aid
commission under Part 4-2.
(2) Suspended funds are funds in the
*Confiscated Assets Account that are:
(a) identified as suspended funds in accordance with the regulations
(other than money that is identified by the
*Official Trustee under subsection 299(4) as
*distributable funds); or
(b) identified by the Official Trustee under subsection 299(2) as
suspended funds.
(1) The Minister may, in writing, approve a program for the expenditure in
a particular financial year of money standing to the credit of the
*Confiscated Assets Account.
(2) The expenditure is to be approved for one or more of the following
purposes:
(a) crime prevention measures;
(b) law enforcement measures;
(c) measures relating to treatment of drug addiction;
(d) diversionary measures relating to illegal use of drugs.
(1) The *Official Trustee may determine
whether the amount of *suspended funds in the
*Confiscated Assets Account:
(a) is likely to be insufficient to meet the payments to be made out of
those funds for the purposes of subsection 297(1); or
(b) is likely to exceed the amount required to meet those
payments.
(2) If the *Official Trustee determines
that the amount of *suspended funds is likely
to be insufficient to meet the payments to be made out of the suspended funds,
the Official Trustee must specify an amount of the
*distributable funds that is to be identified
as suspended funds.
(3) The amount specified under subsection (2) must not be more than
the amount required to meet those payments.
(4) However, if the *Official Trustee
determines that the amount of *suspended funds
is likely to exceed the amount required to meet those payments, the Official
Trustee must specify an amount of the suspended funds that is to be identified
as *distributable funds.
(5) The amount specified under subsection (4) must not be more than
the amount of the likely excess.
(6) The *Official Trustee may make a
determination under subsection (1) at such times as it considers
appropriate, but must make at least one determination in every 6
months.
(7) Distributable funds are funds in the
*Confiscated Assets Account that are:
(a) identified as distributable funds in accordance with the regulations
(other than money that is identified by the
*Official Trustee under subsection (2) as
*suspended funds); or
(b) identified by the Official Trustee under subsection (4) as
distributable funds.
If:
(a) a *legal aid commission is to be paid
an amount out of property that is covered by a
*restraining order; and
(b) either:
(i) the court revokes the restraining order; or
(ii) the order ceases to be in force under section 45;
there is created by force of this section a charge on the property to
secure the payment of the amount to the legal aid commission.
A charge created under section 300 ceases to have effect on a
*person’s property on the earliest of the
following events:
(a) the amount owing is paid to the
*legal aid;
(b) the person sells or disposes of the property with the consent of the
Official Trustee.
If a charge is created under section 300 in favour of a
*legal aid commission, the commission’s
charge:
(a) is subject to every *encumbrance on
the property that came into existence before it and that would otherwise have
priority; and
(b) has priority over all other encumbrances; and
(c) subject to section 301, is not affected by any change of
ownership of the property.
(1) If an *interstate restraining order
expressly applies to:
(a) specified property in a
*non-governing Territory; or
(b) all property in such a Territory of a specified person; or
(c) all property (other than specified property) in such a Territory of a
specified person;
a copy of the order, sealed by the court making the order, may be
registered in the Supreme Court of the Territory by:
(d) the person on whose application the order was made; or
(e) an *appropriate officer.
(2) A copy of any amendments made to an
*interstate restraining order (before or after
registration), sealed by the court making the amendments, may be registered in
the same way. The amendments do not, for the purposes of this Act, have effect
until they are registered.
(3) Registration of an *interstate
restraining order may be refused to the extent that the order would not, on
registration, be capable of enforcement in the Territory.
(4) Registration is to be effected in accordance with the rules of the
Supreme Court of the Territory.
(1) An *interstate restraining order
registered in the Supreme Court of a Territory under this Division may be
enforced in the Territory as if it were a
*restraining order made at the time of
registration.
(2) This Act (other than sections 33, 42 to 45, 142 and 169,
Division 5 of Part 2-1, Part 2-3 and Division 4 of
Part 4-1) applies in relation to an
*interstate restraining order registered in the
Supreme Court of a Territory under this Division as it applies in relation to a
*restraining order.
An *interstate restraining order ceases
to be registered under this Act if:
(a) the court in which it is registered receives notice that it has ceased
to be in force in the jurisdiction in which it was made; or
(b) the registration is cancelled under section 306.
(1) The registration of an *interstate
restraining order in the Supreme Court of a Territory under this Division may be
cancelled by the Supreme Court or a prescribed officer of the Supreme Court
if:
(a) the registration was improperly obtained; or
(b) particulars of any amendments made to:
(i) the interstate restraining order; or
(ii) any ancillary orders or directions made by a court;
are not communicated to the Supreme Court in accordance with the
requirements of the rules of the Supreme Court.
(2) The registration of an *interstate
restraining order in the Supreme Court of a Territory under this Division may be
cancelled by the Supreme Court to the extent that the order is not capable of
enforcement in the Territory.
(1) If:
(a) an *interstate restraining order is
made against property in relation to a person’s conviction of an
*interstate indictable offence or in relation
to the charging, or proposed charging, of a person with an interstate indictable
offence; and
(b) an *interstate pecuniary penalty
order is made against the person in relation to the person’s conviction of
that offence or an interstate indictable offence that is a
*related offence; and
(c) the interstate restraining order is registered under this Division in
the Supreme Court of a Territory; and
(d) the interstate pecuniary penalty order is registered in a court of the
Territory under the Service and Execution of Process Act 1992;
then, upon the registration referred to in paragraph (c) or the
registration referred to in paragraph (d) (whichever last occurs), a charge
is created on the property to secure payment of the amount due under the
interstate pecuniary penalty order.
(2) If a charge is created by subsection (1) on property of a person
to secure payment of the amount due under an
*interstate pecuniary penalty order, the charge
ceases to have effect in respect of the property:
(a) upon the *quashing of the conviction
in relation to which the interstate pecuniary penalty order was made;
or
(b) upon the discharge of the interstate pecuniary penalty order by a
court hearing an appeal against the making of the order; or
(c) upon payment of the amount due under the interstate pecuniary penalty
order; or
(d) upon the sale or other disposition of the property:
(i) under an order made by a court under the
*corresponding law of the State or Territory in
which the interstate pecuniary penalty order was made; or
(ii) by the owner of the property with the consent of the court that made
the interstate pecuniary penalty order; or
(iii) where the *interstate restraining
order directed a person to take control of the property—by the owner of
the property with the consent of that person; or
(e) upon the sale of the property to a purchaser in good faith for value
who, at the time of purchase, has no notice of the charge;
whichever first occurs.
(3) A charge created on property by subsection (1):
(a) is subject to every *encumbrance on
the property that came into existence before the charge and that would, apart
from this subsection, have priority over the charge; and
(b) has priority over all other encumbrances; and
(c) subject to subsection (2), is not affected by any change of
ownership of the property.
(4) If:
(a) a charge is created by subsection (1) on property of a particular
kind; and
(b) the provisions of any law of the Commonwealth or of a State or
Territory provide for the registration of title to, or charges over, property of
that kind:
then:
(c) the *Official Trustee or the
*DPP may cause the charge so created to be
registered under the provisions of that law; and
(d) if the charge is so registered—a person who purchases or
otherwise acquires an *interest in the property
after the registration of the charge is, for the purposes of
paragraph (2)(e), taken to have notice of the charge at the time of the
purchase or acquisition.
If:
(a) an *interstate restraining order is
registered in the Supreme Court of a Territory under this Division;
and
(b) the interstate restraining order directs an official of a State or a
*self-governing Territory to take control of
property;
the *Official Trustee may, with the
agreement of the official, exercise the same powers in relation to the property
that the official would have been able to exercise if the property were located
in that State or self-governing Territory.
(1) If an *interstate forfeiture order
expressly applies to property in a
*non-governing Territory, a copy of the order,
sealed by the court making the order, may be registered in the Supreme Court of
the Territory by:
(a) the person on whose application the order was made; or
(b) an *appropriate officer.
(2) A copy of any amendments made to an
*interstate forfeiture order (before or after
registration), sealed by the court making the amendments, may be registered in
the same way. The amendments do not, for the purposes of this Act, have effect
until they are registered.
(3) Registration of an *interstate
forfeiture order may be refused to the extent that the order would not, on
registration, be capable of enforcement in the Territory.
(4) Registration is to be effected in accordance with the rules of the
Supreme Court of the Territory.
(1) An *interstate forfeiture order
registered in the Supreme Court of a Territory under this Division may be
enforced in the Territory as if it were a
*forfeiture order made at the time of
registration.
(2) This Act (other than Divisions 5 and 6 of Part 2-2 and
section 322) applies to an *interstate
forfeiture order registered in the Supreme Court of a Territory under this
Division as it applies to a *forfeiture
order.
An *interstate forfeiture order ceases
to be registered under this Act if:
(a) the order ceases to be in force in the jurisdiction in which it was
made; or
(b) the registration is cancelled under section 312.
(1) The registration of an *interstate
forfeiture order in the Supreme Court of a Territory under this Division may be
cancelled by the Supreme Court or a prescribed officer of the Supreme Court
if:
(a) the registration was improperly obtained; or
(b) particulars of any amendments made to:
(i) the interstate forfeiture order; or
(ii) any ancillary orders or directions made by a court;
are not communicated to the Supreme Court in accordance with the
requirements of the rules of the Supreme Court.
(2) The registration of an *interstate
forfeiture order in the Supreme Court of a Territory under this Division may be
cancelled by the Supreme Court to the extent that the order is not capable of
enforcement in the Territory.
(1) A faxed copy of a sealed copy of:
(a) an *interstate restraining order;
or
(b) an *interstate forfeiture order;
or
(c) any amendments made to such an order;
is, for the purposes of this Act, taken to be the same as the sealed copy
if the faxed copy is itself certified in accordance with the rules of the
Supreme Court.
(2) Registration effected by means of a faxed copy ceases to have effect
at the end of the period of 5 days commencing on the day of registration unless
a sealed copy that is not a faxed copy has been filed in the Supreme Court by
that time.
(3) Filing of the sealed copy before the end of the period referred to in
subsection (2) has effect, as if it were registration of the sealed copy,
from the day of registration of the faxed copy.
(1) Jurisdiction is vested in the several courts of the States and
Territories with respect to matters arising under this Act.
(2) Subject to section 53, the jurisdiction vested in a court by
virtue of subsection (1) is not limited by any limits to which any other
jurisdiction of the court may be subject.
(3) Jurisdiction is vested in a court of a Territory by virtue of
subsection (1) so far only as the Constitution permits.
(1) Proceedings on an application for a
*restraining order or a
*confiscation order are not criminal
proceedings.
(2) Except in relation to an offence under this Act:
(a) the rules of construction applicable only in relation to the criminal
law do not apply in the interpretation of this Act; and
(b) the rules of evidence applicable in civil proceedings apply, and those
applicable only in criminal proceedings do not apply, to proceedings under this
Act.
(1) A court may make an order in a proceeding under Chapter 2 with
the consent of:
(a) the applicant in the proceeding; and
(b) everyone whom the court has reason to believe has an interest in the
property that is the subject of the proceeding.
(2) The order may be made:
(a) without consideration of the matters that the court would otherwise
consider in the proceeding; and
(b) if the order is an order under section 47 (forfeiture orders
relating to conduct constituting serious offences)—before the end of the
period of 6 months referred to in paragraph 47(1)(b).
(1) The applicant in any proceedings under this Act bears the onus of
proving the matters necessary to establish the grounds for making the order
applied for.
(2) Subject to sections 52 and 118, any question of fact to be
decided by a court on an application under this Act is to be decided on the
balance of probabilities.
(1) A certificate of conviction of an offence, that is a certificate of a
kind referred to in section 178 (Convictions, acquittals and other judicial
proceedings) of the Evidence Act 1995:
(a) is admissible in any civil proceedings under this Act; and
(b) is evidence of the commission of the offence by the person to whom it
relates.
(2) In any proceedings:
(a) on an application for an order under this Act; or
(b) ancillary to such an application; or
(c) for the enforcement of an order made under this Act;
the transcript of any *examination is
evidence of the answers given by a person to a question put to the person in the
course of the examination.
The fact that criminal proceedings have been instituted or have commenced
(whether or not under this Act) is not a ground on which a court may stay
proceedings under this Act that are not criminal proceedings.
A court passing sentence on a person in respect of the person’s
conviction of an *indictable offence:
(a) may have regard to any cooperation by the person in resolving any
action taken against the person under this Act; and
(b) must not have regard to any
*forfeiture order that relates to the offence,
to the extent that the order forfeits *proceeds
of the offence; and
(c) must have regard to the forfeiture order to the extent that the order
forfeits any other property; and
(d) must not have regard to any
*pecuniary penalty order, or any
*literary proceeds order, that relates to the
offence.
If:
(a) an application is made for a
*confiscation order in respect of a
person’s conviction of an *indictable
offence; and
(b) the application is made to the court before which the person was
convicted; and
(c) the court has not, when the application is made, passed sentence on
the person for the offence;
the court may, if satisfied that it is reasonable to do so in all the
circumstances, defer passing sentence until it has determined the application
for the confiscation order.
(1) A person:
(a) against whom a *confiscation order is
made; or
(b) who has an *interest in property
against which a *forfeiture order is made;
or
(c) who has an interest in property that is declared in an order under
section 141 or 168 to be available to satisfy a
*pecuniary penalty order or
*literary proceeds order;
may appeal against the confiscation order, forfeiture order or order under
section 141 or 168 (the targeted order) in the manner set out
in this section.
(2) If:
(a) the *confiscation order; or
(b) the *forfeiture order; or
(c) the *pecuniary penalty order or
*literary proceeds order to which the order
under section 141 or 168 relates;
(the primary order) was made in relation to a
conviction of an offence, the person may appeal against the targeted order in
the same manner as if the targeted order were, or were part of, a sentence
imposed on the person in respect of the offence.
(3) In any other case, the person may appeal against the targeted order in
the same manner as if:
(a) the person had been convicted of the offence to which the primary
order relates; and
(b) the targeted order were, or were part of, a sentence imposed on the
person in respect of the offence.
(4) However, despite subsection (2) or (3), if the primary order
related to a *foreign indictable offence, the
person may appeal against the targeted order in the same manner as if:
(a) the person had been convicted of the offence in the State or Territory
in which the targeted order was made; and
(b) the targeted order were, or were part of, a sentence imposed on the
person in respect of the offence.
(5) The *DPP:
(a) has the same right of appeal against a targeted order as the person
referred to in subsection (1) has under this section; and
(b) may appeal against a refusal by a court to make a targeted order in
the same manner as if such an order were made and the DPP were appealing against
that order.
(6) On an appeal against a targeted order, the order may be confirmed,
discharged or varied.
(7) This section does not affect any other right of appeal.
(1) If:
(a) a person brings, or appears at, proceedings under this Act before a
court in order:
(i) to prevent a *forfeiture order or
*restraining order from being made against
property of the person; or
(ii) to have property of the person excluded from a forfeiture order or
restraining order; and
(b) the person is successful in those proceedings; and
(c) the court is satisfied that the person was not involved in any way in
the commission of the offence in respect of which the forfeiture order or
restraining order was sought or made;
the court may order the Commonwealth to pay all costs incurred by the
person in connection with the proceedings or such part of those costs as is
determined by the court.
(2) The costs referred to in subsection (1) are not limited to costs
of a kind that are normally recoverable by the successful party to civil
proceedings.
(1) A power:
(a) that is conferred by this Act on a State or Territory judge or on a
magistrate; and
(b) that is neither judicial nor incidental to a judicial function or
power;
is conferred on that person in a personal capacity and not as a court or a
member of a court.
Note: Magistrate is defined in
section 16C of the Acts Interpretation Act 1901.
(2) The State or Territory judge, or the magistrate, need not accept the
power conferred.
(3) A State or Territory judge, or magistrate, exercising a conferred
power has the same protection and immunity as if he or she were exercising that
power as, or as a member of, the court of which the judge or magistrate is a
member.
(1) Any notice authorised or required to be given to a person under this
Act is, if the person has died, sufficiently given if given to the
person’s legal personal representative.
(2) A reference in this Act to a person’s
*interest in property or a thing is, if the
person has died, a reference to an interest in the property or thing that the
person had immediately before his or her death.
(3) An order can be applied for and made under this Act:
(a) in respect of a person’s
*interest in property or a thing even if the
person has died, and
(b) on the basis of the activities of a person who has died.
Nothing in this Act limits or restricts:
(a) the operation of any other law of the Commonwealth or of a
*non-governing Territory providing for the
forfeiture of property or the imposition of pecuniary penalties; or
(b) the remedies available to the Commonwealth, apart from this Act, for
the enforcement of its rights and the protection of its interests.
(1) The Minister must cause an independent review of the operation of this
Act to be undertaken as soon as practicable after the third anniversary of the
commencement of this Act.
(2) The persons who undertake such a review must give the Minister a
written report of the review.
(3) The Minister must cause a copy of each report to be tabled in each
House of the Parliament within 15 sitting days of that House after its receipt
by the Minister.
(4) However, this section does not apply if a committee of one or both
Houses of the Parliament has reviewed the operation of this Act, or started such
a review, before the third anniversary of the commencement of this
Act.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
(1) Property is proceeds of an offence if:
(a) it is wholly derived or realised, whether directly or indirectly, from
the commission of the offence; or
(b) it is partly derived or realised, whether directly or indirectly, from
the commission of the offence;
whether the property is situated within or outside
*Australia.
(2) Property is an instrument of an offence if:
(a) the property is used in, or in connection with, the commission of an
offence; or
(b) the property is intended to be used in, or in connection with, the
commission of an offence;
whether the property is situated within or outside
*Australia.
(3) Property can be proceeds of an offence or an instrument of an offence
even if no person has been convicted of the offence.
(4) Proceeds or an instrument of an
*unlawful activity means proceeds or an
instrument of the offence constituted by the act or omission that constitutes
the unlawful activity.
(1) Property becomes *proceeds of an
offence if it is:
(a) wholly or partly derived or realised from a disposal or other dealing
with proceeds of the offence; or
(b) wholly or partly acquired using proceeds of the offence;
including because of a previous application of this section.
(2) Property becomes an *instrument of an
offence if it is:
(a) wholly or partly derived or realised from the disposal or other
dealing with an instrument of the offence; or
(b) wholly or partly acquired using an instrument of the
offence;
including because of a previous application of this section.
(3) Property remains *proceeds of an
offence or an *instrument of an offence even
if:
(a) it is credited to an *account;
or
(b) it is disposed of or otherwise dealt with.
(4) Property only ceases to be *proceeds
of an offence or an *instrument of an
offence:
(a) if it is acquired by a third party for
*sufficient consideration without the third
party knowing, and in circumstances that would not arouse a reasonable
suspicion, that the property was proceeds of an offence or an instrument of an
offence (as the case requires); or
(b) if the property vests in a person from the distribution of the estate
of a deceased person, having been previously vested in a person from the
distribution of the estate of another deceased person while the property was
still proceeds of an offence or an instrument of an offence (as the case
requires); or
(c) if the property is acquired by a person as payment for reasonable
legal expenses incurred in connection with an application under this Act or
defending a criminal *charge; or
(d) if a *forfeiture order in respect of
the property is satisfied; or
(e) if an *interstate restraining order
or an *interstate forfeiture order is satisfied
in respect of the property; or
(f) if the property is otherwise sold or disposed of under this Act;
or
(g) in any other circumstances specified in the regulations.
(5) However, if:
(a) a person once owned property that was
*proceeds of an offence or an
*instrument of an offence; and
(b) the person ceased to be the owner of the property and (at that time or
a later time) the property stopped being proceeds of an offence or an instrument
of the offence under subsection (4) (other than under
paragraph (4)(d)); and
(c) the person acquires the property again;
then the property becomes proceeds of an offence or an instrument of the
offence again (as the case requires).
(6) Property becomes, remains or ceases to be
*proceeds of an
*unlawful activity, or an
*instrument of an unlawful activity, if the
property becomes, remains or ceases to be proceeds of the offence, or an
instrument of the offence, constituted by the act or omission that constitutes
the unlawful activity.
(1) For the purposes of this Act, a person is taken to be
convicted of an offence if:
(a) the person is convicted, whether summarily or on indictment, of the
offence; or
(b) the person is charged with, and found guilty of, the offence but is
discharged without conviction; or
(c) a court, with the consent of the person, takes the offence, of which
the person has not been found guilty, into account in passing sentence on the
person for another offence; or
(d) the person *absconds in connection
with the offence.
(2) Such a person is taken to have been convicted of the offence in the
following State or Territory:
(a) if paragraph (1)(a) applies—the State or Territory in which
the person was convicted;
(b) if paragraph (1)(b) applies—the State or Territory in which
the person was discharged without conviction;
(c) if paragraph (1)(c) applies—the State or Territory in which
the court took the offence into account in passing sentence on the person for
the other offence;
(d) if paragraph (1)(d) applies—the State or Territory in which
the information was laid alleging the person’s commission of the
offence.
(3) If paragraph (2)(d) applies to a person:
(a) the person is taken to have been convicted of the offence before the
Supreme Court of that State or Territory; and
(b) the person is taken to have committed the offence.
(4) This section does not apply to a
*foreign serious offence.
(1) For the purposes of this Act, a person’s conviction of an
offence is taken to be quashed if:
(a) if the person is taken to have been convicted of the offence because
of paragraph 331(1)(a)—the conviction is quashed or set aside;
or
(b) if the person is taken to have been convicted of the offence because
of paragraph 331(1)(b)—the finding of guilt is quashed or set aside;
or
(c) if the person is taken to have been convicted of the offence because
of paragraph 331(1)(c)—either of the following events occur:
(i) the person’s conviction of the other offence referred to in that
paragraph is quashed or set aside;
(ii) the decision of the court to take the offence into account in passing
sentence for that other offence is quashed or set aside; or
(d) if the person is taken to have been convicted of the offence because
of paragraph 331(1)(d)—after the person is brought before a court in
respect of the offence, the person is discharged in respect of the offence or a
conviction of the person for the offence is quashed or set aside.
(2) This section does not apply to a
*foreign serious offence.
(1) For the purposes of this Act, the conviction day, in
relation to a person’s conviction of an
*indictable offence, is:
(a) if the person is taken to have been convicted of the offence because
of paragraph 331(1)(a)—the day on which the person was convicted of the
offence; or
(b) if the person is taken to have been convicted of the offence because
of paragraph 331(1)(b)—the day on which the person was discharged without
conviction; or
(c) if the person is taken to have been convicted of the offence because
of paragraph 331(1)(c)—the day on which the court took the offence into
account in passing sentence for the other offence referred to in that paragraph;
or
(d) if the person is taken to have been convicted of the offence because
of paragraph 331(1)(d)—the day on which the person is taken to have
*absconded in connection with the
offence.
(2) For the purposes of paragraph (1)(a), the day on which the person
was convicted of the offence is taken to be the first day on which the court
acted on the finding that the offence was proved against the person (whether or
not the court passed sentence on that day in relation to the offence).
(1) For the purposes of this Act, a person is taken to
abscond in connection with an offence if and only if:
(a) an information is laid alleging the person committed the offence;
and
(b) a warrant for the person’s arrest is issued in relation to that
information; and
(c) subsection (2) applies to the person and the warrant.
(2) This subsection applies to a person and a warrant if either of the
following occurs:
(a) at the end of the period of 6 months commencing on the day on which
the warrant is issued:
(i) the person cannot be found; or
(ii) the person is, for any other reason, not amenable to justice and, if
the person is outside *Australia, extradition
proceedings are not on foot;
(b) at the end of the period of 6 months commencing on the day on which
the warrant is issued:
(i) the person is, because he or she is outside Australia, not amenable to
justice; and
(ii) extradition proceedings are on foot;
and subsequently those proceedings terminate without an order for the
person’s extradition being made.
(3) Extradition proceedings taking place in a jurisdiction in relation to
a person are not taken, for the purposes of subsection (2), to be on foot
unless the person is in custody, or is on bail, in that
jurisdiction.
(1) Whether a court has proceeds jurisdiction for an order
depends on the circumstances of the offence or offences to which the order would
relate.
General rules
(2) If all or part of the conduct constituting an offence to which the
order would relate:
(a) occurred in a particular State or Territory; or
(b) is reasonably suspected of having occurred in that State or
Territory;
the courts that have proceeds jurisdiction for the order are
those with jurisdiction to deal with criminal matters on indictment in that
State or Territory.
(3) If all of the conduct constituting an offence to which the order would
relate:
(a) occurred outside *Australia;
or
(b) is reasonably suspected of having occurred outside
*Australia;
the courts that have proceeds jurisdiction for the order are
those of any State or Territory with jurisdiction to deal with criminal matters
on indictment.
Offender not identified
(4) If:
(a) the order would, if made, be:
(i) a *restraining order under
section 19 that relates to an offence committed by a person whose identity
is not known and that is not based on a finding as to the commission of a
particular offence; or
(ii) a *forfeiture order under
section 49 that is not based on a finding that a particular person
committed any offence and that is not based on a finding as to the commission of
a particular offence; and
(b) the property to which the order would relate is located in a
particular State or Territory;
despite subsections (2) and (3), the courts that have proceeds
jurisdiction for the order are those with jurisdiction to deal with
criminal matters on indictment in that State or Territory.
(5) If:
(a) the order would, if made, be:
(i) a *restraining order under
section 19 that relates to an offence committed by a person whose identity
is not known and that is not based on a finding as to the commission of a
particular offence; or
(ii) a *forfeiture order under
section 49 that is not based on a finding that a particular person
committed any offence and that is not based on a finding as to the commission of
a particular offence; and
(b) the property to which the order would relate is located outside
*Australia;
despite subsections (2) and (3), the courts that have proceeds
jurisdiction for the order are those of any State or Territory with
jurisdiction to deal with criminal matters on indictment.
Magistrates may have proceeds jurisdiction in some cases
(6) If:
(a) the order would, if made, be a
*restraining order under section 17, or a
*forfeiture order under section 48,
relating to an offence of which a person has been convicted; and
(b) the person was convicted before a magistrate;
the magistrate has proceeds jurisdiction for the order.
However, this does not prevent other courts having proceeds jurisdiction for the
order under subsection (2) or (3) (whichever is applicable).
Note: Although this Act is only concerned with indictable
offences, these offences can often be tried summarily. For example, see
section 4J of the Crimes Act 1914.
A reference to a person having derived
*proceeds, a
*benefit or
*literary proceeds includes a reference
to:
(a) the person; or
(b) another person at the request or direction of the first
person;
having derived the proceeds, benefit or literary proceeds directly or
indirectly.
(1) Property may be subject to the effective control of a
person whether or not the person has:
(a) a legal or equitable estate or
*interest in the property; or
(b) a right, power or privilege in connection with the property.
(2) Property that is held on trust for the ultimate
*benefit of a person is taken to be under the
effective control of the person.
(3) However, if a person is one of 2 or more beneficiaries under a
*discretionary trust, the following undivided
proportion of the trust property is taken to be under the effective
control of the person:
(4) If property is initially owned by a person and, within 6 years either
before or after an application for a
*restraining order or a
*confiscation order is made, disposed of
to another person without *sufficient
consideration, then the property is taken still to be under the effective
control of the first person.
(5) In determining whether or not property is subject to the effective
control of a person, regard may be had to:
(a) shareholdings in, debentures over or
*directorships of a company that has an
*interest (whether direct or indirect) in the
property; and
(b) a trust that has a relationship to the property; and
(c) family, domestic and business relationships between persons having an
interest in the property, or in companies of the kind referred to in
paragraph (a) or trusts of the kind referred to in paragraph (b), and
other persons.
In this Act, unless the contrary intention appears:
abscond has the meaning given by section 334.
account means any facility or arrangement through which a
*financial institution accepts deposits or
allows withdrawals and includes a facility or arrangement for:
(a) a *fixed term deposit; and
(b) a safety deposit box.
AFP member means a member, or special member, (within the
meaning of the Australian Federal Police Act 1979) of the Australian
Federal Police.
agent includes, if the agent is a corporation, the
*officers and agents of the
corporation.
appropriate officer means the
*DPP or a person included in a class of persons
declared by the regulations to be within this definition.
approved examiner has the meaning given by subsection
183(4).
AUSTRAC means the Australian Transaction Reports and Analysis
Centre.
Australia, when used in a geographical sense, includes the
external Territories.
authorised officer means:
(a) an *AFP member who is authorised by
the Commissioner of the Australian Federal Police; or
(b) a member, or member of the staff, (within the meaning of the
National Crime Authority Act 1984) of the National Crime Authority who is
authorised by the Chairperson of the National Crime Authority; or
(c) an officer of Customs (within the meaning of the Customs Act
1901) who is authorised by the CEO of Customs; or
(d) a member, or staff member, (within the meaning of the Australian
Securities and Investments Commission Act 2001) of the Australian Securities
and Investments Commission who is authorised by the Chairperson of the
Australian Securities and Investments Commission; or
(e) a member, officer or employee of any other agency specified in the
regulations who is authorised by the head of that agency.
bankruptcy court means a court having jurisdiction in
bankruptcy under the Bankruptcy Act 1966.
benefit includes service or advantage.
books includes any account, deed, paper, writing or document
and any record of information however compiled, recorded or stored, whether in
writing, on microfilm, by electronic process or otherwise.
charged: a person is charged with an offence if an
information is laid against the person for the offence whether or not:
(a) a summons to require the attendance of the person to answer the
information has been issued; or
(b) a warrant for the arrest of the person has been issued.
compensation order means an order made under subsection
77(1).
Confiscated Assets Account means the account established
under section 295.
confiscation order means a
*forfeiture order, a
*pecuniary penalty order or a
*literary proceeds order.
controlled property has the meaning given by
section 267.
conveyance includes an aircraft, vehicle or vessel.
convicted has the meaning given by
section 331.
conviction day has the meaning given by
section 333.
corresponding law means a law of a State or of a
*self-governing Territory that is declared by
the regulations to be a law that corresponds to this Act.
criminal proceeding, in relation to a
*foreign serious offence, has the same meaning
as in the *Mutual Assistance Act.
Customs officer means an officer of Customs within the
meaning of the Customs Act 1901.
data includes:
(a) information in any form; or
(b) any program (or part of a program).
data held in a computer includes:
(a) *data held in any removable
*data storage device for the time being held in
a computer; or
(b) data held in a data storage device on a computer network of which the
computer forms a part.
data storage device means a thing containing, or designed to
contain, *data for use by a computer.
deal: dealing with a person’s property
includes:
(a) if a debt is owed to that person—making a payment to any person
in reduction of the amount of the debt; and
(b) removing the property from
*Australia; and
(c) receiving or making a gift of the property; and
(d) if the property is covered by a
*restraining order—engaging in a
transaction that has the direct or indirect effect of reducing the value of the
person’s interest in the property.
dependant: each of the following is a dependant of a
person:
(a) the person’s spouse or de facto partner;
(b) the person’s child, or member of the person’s household,
who depends on the person for support.
derived has the meaning given by section 336.
director, in relation to a
*financial institution or a corporation,
means:
(a) if the institution or corporation is a body corporate incorporated for
a public purpose by a law of the Commonwealth, of a State or of a
Territory—a constituent member of the body corporate; and
(b) any person occupying or acting in the position of director of the
institution or corporation, by whatever name called and whether or not validly
appointed to occupy or duly authorised to act in the position; and
(c) any person in accordance with whose directions or instructions the
directors of the institution or corporation are accustomed to act, other than
when those directors only do so:
(i) in the proper performance of the functions attaching to the
person’s professional capacity; or
(ii) in their business relationship with the person.
discretionary trust means a trust where:
(a) a person (who may include the trustee) is empowered (either
unconditionally or on the fulfilment of a condition) to exercise any power of
appointment or other discretion; and
(b) the exercise of the power or discretion, or the failure to exercise
the power or discretion, has the effect of determining, to any extent, either or
both of the following:
(i) the identities of those who may benefit under the trust;
(ii) how beneficiaries are to benefit, as between themselves, under the
trust.
distributable funds has the meaning given by subsection
299(7).
DPP means the Director of Public Prosecutions.
effective control has a meaning affected by
section 337.
encumbrance, in relation to property, includes any
*interest, mortgage, charge, right, claim or
demand in respect of the property.
enforcement agency means:
(a) an agency mentioned in paragraphs (a) to (d) of the definition of
*authorised officer; or
(b) an agency specified in the regulations to be a law enforcement,
revenue or regulatory agency for the purposes of this Act.
equitable sharing program has the meaning given by subsection
296(4).
evidential material means evidence relating to:
(a) property in respect of which action has been or could be taken under
this Act; or
(b) *benefits derived from the commission
of an *indictable offence; or
(c) *literary proceeds.
examination means an examination under
Part 3-1.
examination notice means a notice given under
section 183.
examination order means an order made under section 180
or 181 that is in force.
exclusion order means an order made under subsection
73(1).
executing officer, in relation to a warrant, means:
(a) the *authorised officer named in the
warrant by the magistrate as being responsible for executing the warrant;
or
(b) if that authorised officer does not intend to be present at the
execution of the warrant—another authorised officer whose name has been
written in the warrant by the first authorised officer; or
(c) another authorised officer whose name has been written in the warrant
by the officer last named in the warrant.
executive officer, in relation to a
*financial institution or a corporation, means
any person, by whatever name called and whether or not he or she is a
*director of the institution or corporation,
who is concerned, or takes part, in the management of the institution or
corporation.
extension order means an order made under
section 93.
financial institution means:
(a) a body corporate that is an ADI for the purposes of the Banking Act
1959; or
(b) the Reserve Bank of Australia; or
(c) a society registered or incorporated as a co-operative housing society
or similar society under a law of a State or Territory; or
(d) a person who carries on State banking within the meaning of paragraph
51(xiii) of the Constitution; or
(e) a body corporate that is a financial corporation within the meaning of
paragraph 51(xx) of the Constitution; or
(f) a body corporate that, if it had been incorporated in
*Australia, would be a financial corporation
within the meaning of paragraph 51(xx) of the Constitution.
fixed term deposit means an interest bearing deposit lodged
for a fixed period.
foreign forfeiture order has the same meaning as in the
*Mutual Assistance Act.
foreign indictable offence means an offence against a law of
a foreign country constituted by conduct that would have constituted an offence
against a law of the Commonwealth, a State or a Territory punishable by at least
12 months imprisonment if it had occurred in
*Australia.
foreign pecuniary penalty order has the same meaning as in
the *Mutual Assistance Act.
foreign restraining order has the same meaning as in the
*Mutual Assistance Act.
foreign serious offence has the same meaning as in the
*Mutual Assistance Act.
forfeiture order means an order made under Division 1 of
Part 2-2 that is in force.
frisk search means:
(a) a search of a person conducted by quickly running the hands over the
person’s outer garments; and
(b) an examination of anything worn or carried by the person that is
conveniently and voluntarily removed by the person.
indictable offence means an offence against a law of the
Commonwealth, or a *non-governing Territory,
that may be dealt with as an indictable offence (even if it may also be dealt
with as a summary offence in some circumstances).
indictable offence of Commonwealth concern means an offence
against a law of a State or a *self-governing
Territory:
(a) that may be dealt on indictment (even if it may also be dealt with as
a summary offence in some circumstances); and
(b) the *proceeds of which were (or were
attempted to have been) dealt with in contravention of a law of the Commonwealth
on:
(i) importation of goods into, or exportation of goods from,
*Australia; or
(ii) a communication using a postal, telegraphic or telephonic service
within the meaning of paragraph 51(xx) of the Constitution; or
(iii) a transaction in the course of banking (other than State banking
that does not extend beyond the limits of the State concerned).
instrument has the meaning given by sections 329 and
330.
interest, in relation to property or a thing,
means:
(a) a legal or equitable estate or interest in the property or thing;
or
(b) a right, power or privilege in connection with the property or
thing;
whether present or future and whether vested or contingent.
Note: For references to an interest in
property of a person who has died, see subsection 325(2).
interstate forfeiture order means an order that is made under
a *corresponding law and is of a kind declared
by the regulations to be within this definition.
interstate indictable offence means an offence against a law
of a State or a *self-governing Territory,
being an offence in relation to which an
*interstate forfeiture order or an
*interstate pecuniary penalty order may be made
under a *corresponding law of that State or
Territory.
interstate pecuniary penalty order means an order that is
made under a *corresponding law and is of a
kind declared by the regulations to be within this definition.
interstate restraining order means an order that is made
under a *corresponding law and is of a kind
declared by the regulations to be within this definition.
lawyer means a duly qualified legal practitioner.
legal aid commission means an authority established by or
under a law of a State or a *self-governing
Territory for the purpose of providing legal assistance.
legal professional privilege includes privilege under
Division 1 of Part 3.10 of the Evidence Act 1995.
literary proceeds has the meaning given by
section 153.
literary proceeds amount has the meaning given by subsection
158(1).
literary proceeds order means an order made under
section 152 that is in force.
monitoring order means an order made under section 219
that is in force.
Mutual Assistance Act means the Mutual Assistance in
Criminal Matters Act 1987.
narcotic substance means:
(a) a narcotic substance within the meaning of the Customs Act
1901; or
(b) a substance specified in the regulations for the purposes of this
definition.
non-governing Territory means a Territory that is not a
*self-governing Territory.
officer, in relation to a
*financial institution or a corporation, means
a *director, secretary,
*executive officer or employee.
Official Trustee means the Official Trustee in
Bankruptcy.
ordinary search means a search of a person or of articles in
the possession of a person that may include:
(a) requiring the person to remove his or her overcoat, coat or jacket and
any gloves, shoes and hat; and
(b) an examination of those items.
pecuniary penalty order means an order made under
section 116 that is in force.
penalty amount has the meaning given by subsection
121(1).
person assisting, in relation to a
*search warrant, means:
(a) a person who is an *authorised
officer and who is assisting in executing the warrant; or
(b) a person who is not an authorised officer and who has been authorised
by the relevant *executing officer to assist in
executing the warrant.
person’s property: a person’s property includes
property in respect of which the person has the beneficial interest.
petition means a petition under the Bankruptcy Act
1966.
police officer means:
(a) an *AFP member; or
(b) a member of the police force of a State or Territory.
premises includes:
(a) any land; and
(b) any structure, building, aircraft, vehicle, vessel or place (whether
built on or not); and
(c) any part of such a structure, building, aircraft, vehicle, vessel or
place.
proceeds has the meaning given by sections 329 and
330.
proceeds jurisdiction has the meaning given by
section 335.
proceeds of confiscated assets has the meaning given by
subsection 296(3).
production order means an order made under subsection 202(1)
that is in force.
property means real or personal property of every
description, whether situated in *Australia or
elsewhere and whether tangible or intangible, and includes an
*interest in any such real or personal
property.
property-tracking document has the meaning given in
subsection 202(5).
quashed has the meaning given by section 332.
registrable property means property title to which is passed
by registration on a register kept pursuant to a provision of any law of the
Commonwealth or of a State or Territory.
registration authority means an authority responsible for
administering a law of the Commonwealth, a State or a Territory providing for
registration of title to, or charges over, property of a particular
kind.
related offence: an offence is related to another offence if
the physical elements of the 2 offences are substantially the same acts or
omissions.
restraining order means an order under section 17, 18,
19 or 20 that is in force.
search warrant means a warrant issued under section 225
that is in force.
self-governing Territory means:
(a) the Australian Capital Territory; or
(b) the Northern Territory; or
(c) Norfolk Island.
senior Departmental officer means an SES employee or acting
SES employee in the Attorney-General’s Department.
serious offence means:
(a) an *indictable offence punishable by
imprisonment for 3 or more years, involving:
(i) unlawful conduct relating to a
*narcotic substance; or
(ii) unlawful conduct constituted by or relating to a breach of
Part 10.2 of the Criminal Code (money-laundering); or
(iii) unlawful conduct by a person that causes, or is intended to cause, a
*benefit to the value of at least $10,000 for
that person or another person; or
(iv) unlawful conduct by a person that causes, or is intended to cause, a
loss to the Commonwealth or another person of at least $10,000; or
(b) an offence against any of the following provisions of the Migration
Act 1958:
(i) section 232A (organising bringing groups of non-citizens into
Australia);
(ii) subsection 233(1) (bringing etc. non-citizens into Australia in
contravention of Act);
(iii) section 233A (other offences relating to groups of
non-citizens); or
(c) an offence against any of the following provisions of the Financial
Transaction Reports Act 1988 involving a transaction of at least $50,000 in
value:
(i) section 15 (reports about transfers of currency into or out of
Australia); or
(ii) section 29 (false or misleading information); or
(d) an offence against section 24 (opening accounts etc. in false
names) of the Financial Transaction Reports Act 1988 if transactions on
the relevant account total at least $50,000 in value during any 6 month period;
or
(e) an offence against section 31 (conducting transactions to avoid
reporting requirements) of the Financial Transaction Reports Act 1988 if
transactions in breach of that section by the person committing the offence
total at least $50,000 in value during any 6 month period; or
(f) a *terrorism offence; or
(g) an offence against section 11.1, 11.2, 11.4 or 11.5 of the
Criminal Code (extensions of criminal responsibility) in relation to an
offence referred to in this definition; or
(h) an indictable offence specified in the regulations.
State indictable offence means an offence against a law of a
State or a *self-governing Territory that may
be dealt with on indictment (even if it may also be dealt with as a summary
offence in some circumstances).
strip search means a search of a person or of articles
in the possession of a person that may include:
(a) requiring the person to remove all of his or her garments;
and
(b) an examination of the person’s body (but not of the
person’s body cavities) and of those garments.
sufficient consideration: an acquisition or disposal of
property is for sufficient consideration if it is for a consideration that is
sufficient and that reflects the value of the property, having regard solely to
commercial considerations.
suspect, in relation to a
*restraining order or a
*confiscation order, means the person
who:
(a) has been convicted of; or
(b) has been *charged with, or is
proposed to be charged with; or
(c) if the order is a restraining order—is suspected of having
committed; or
(d) if the order is a confiscation order—committed;
the offence or offences to which the order relates.
suspended funds has the meaning given by subsection
297(2).
tainted property means:
(a) *proceeds of an
*indictable offence; or
(b) an *instrument of an indictable
offence.
terrorism offence means an offence against Part 5-3 of
the Criminal Code.
unlawful activity means an act or omission that
constitutes:
(a) an offence against a law of the Commonwealth; or
(b) an offence against a law of a State or Territory that may be dealt
with on indictment (even if it may also be dealt with as a summary offence in
some circumstances); or
(c) an offence against a law of a foreign country.