"related foreign serious offence": a foreign serious offence is
related to another foreign serious offence if the physical elements of the 2
offences are substantially the same acts or omissions.
31 Subsection 3(1) (definition of serious narcotics
offence)
Repeal the definition.
32 Subsection 3(1) (definition of tainted property)
Repeal the definition.
33 Paragraph 32(b)
After "pecuniary penalty order", insert ", or an Australian literary proceeds
order,".
34 Paragraph 33(a)
Repeal the paragraph.
35 Paragraphs 33(c) and (d)
Omit "in respect of a property-tracking document".
36 Division 2 of Part VI
Repeal the Division, substitute:
Division 2—Requests by foreign
countries
Subdivision A—Enforcement of foreign orders
34 Requests for enforcement of foreign orders
- (1)
- If:
- (a)
- a foreign country requests the Attorney-General to make arrangements for
the enforcement of:
- (i)
- a foreign forfeiture order, made in respect of a
foreign serious offence, against property that is reasonably suspected of
being located in Australia; or
- (ii)
- a foreign pecuniary penalty order, made
in respect of a foreign serious offence, where some or all of the property
available to satisfy the order is reasonably suspected of being located in
Australia; and
- (b)
- the Attorney-General is satisfied that:
- (i)
- a person
has been convicted of the offence; and
- (ii)
- the conviction and the order are
not subject to further appeal in the foreign country;
the Attorney-General
may authorise the DPP, in writing, to apply for the registration of the order
in a specified court.
- (2)
- If a foreign country that is specified in
regulations made for the purposes of this subsection requests the
Attorney-General to make arrangements for the enforcement of:
- (a)
- a foreign
forfeiture order that:
- (i)
- has the effect of forfeiting a person's property
on the basis that the property is, or is alleged to be, the proceeds or an
instrument of a foreign serious offence (whether or not a person has been
convicted of that offence); and
- (ii)
- is made against property that is
reasonably suspected of being located in Australia; or
- (b)
- a foreign
pecuniary penalty order in respect of which both of the following apply:
- (i)
- the order has the effect of requiring a person to pay an amount of money
on the basis that the money is, or is alleged to be, the benefit derived from
a foreign serious offence (whether or not the person has been convicted of
that offence);
- (ii)
- some or all of the property available to satisfy the
order is reasonably suspected of being located in Australia;
the
Attorney-General may authorise the DPP, in writing, to apply for the
registration of the order in a specified court.
- (3)
- If a foreign country
requests the Attorney-General to make arrangements for the enforcement of a
foreign restraining order, against property that is reasonably suspected of
being located in Australia, that is:
- (a)
- in any case—made in respect
of a foreign serious offence for which a person has been convicted; or
- (b)
- if
the foreign country is specified in regulations made for the purposes of
subsection (2)—made in respect of the alleged commission of a
foreign serious offence (whether or not the identity of the person who
committed the offence is known);
the Attorney-General may authorise the DPP,
in writing, to apply for the registration of the order in a specified court.
- (4)
- The court that the Attorney-General specifies under subsection (1),
- (2)
- or (3) must be a court with proceeds jurisdiction in a State or Territory
in which the property, or some or all of the property, is reasonably suspected
of being located.
34A Registration of foreign orders
- (1)
- If the DPP applies to a court for registration of a foreign order in
accordance with an authorisation under this Subdivision, the court must
register the order accordingly.
- (2)
- The DPP must give notice of the
application:
- (a)
- to specified persons the DPP has reason to suspect may
have an interest in the property; and
- (b)
- to such other persons as the court
directs.
- (3)
- However, the court must consider the application without
notice having been given if the DPP requests the court to do so.
- (4)
- If a
foreign pecuniary penalty order or a foreign restraining order is registered
in a court under this Subdivision:
- (a)
- a copy of any amendments made to the
order (whether before or after registration) may be registered in the same way
as the order; and
- (b)
- the amendments do not, for the purposes of this Act and
the Proceeds of Crime Act, have effect until they are registered.
- (5)
- An
order or an amendment of an order is to be registered in a court by the
registration, in accordance with the rules of the court, of:
- (a)
- a copy of
the appropriate order or amendment sealed by the court or other authority
making that order or amendment; or
- (b)
- a copy of that order or amendment duly
authenticated in accordance with subsection 43(2).
34B Enforcement of foreign forfeiture orders
- (1)
- A foreign forfeiture order registered in a court under this Subdivision
has effect, and may be enforced, as if it were a forfeiture order made by the
court under the Proceeds of Crime Act at the time of registration.
- (2)
- In
particular, section 68 of the Proceeds of Crime Act 2002 applies in
relation to the forfeiture order as if:
- (a)
- the reference in subparagraph
68(1)(b)(i) of that Act to the DPP having applied for the order were a
reference to the foreign forfeiture order having been made; and
- (b)
- subparagraph 68(1)(b)(ii) of that Act did not apply if the person in question
died after the DPP applied for registration of the order under
section 34A of this Act.
- (3)
- Subject to section 34C, property
that is subject to a foreign forfeiture order registered under this
Subdivision may be disposed of, or otherwise dealt with, in accordance with
any direction of the Attorney-General or of a person authorised by the
Attorney-General in writing for the purposes of this subsection.
- (4)
- Sections 69 and 70 and Divisions 5 to 7 of Part 2-2 of the
Proceeds of Crime Act do not apply in relation to a foreign forfeiture order
registered under this Subdivision.
34C Effect on third parties of registration of foreign forfeiture
orders
Applications by third parties
- (1)
- If a court registers under
section 34A a foreign forfeiture order against property, a person who:
- (a)
- claims an interest in the property; and
- (b)
- either:
- (i)
- if the registration relates to an authorisation given under subsection
34(1)—was not convicted of a foreign serious offence in respect of which
the order was made; or
- (ii)
- if the registration relates to an authorisation
given under subsection 34(2)—is not a person whom the court has reason to
believe committed a foreign serious offence in respect of which the order was
made;
may apply to the court for an order under subsection (2).
Orders
by the court
- (2)
- If, on an application for an order under this subsection,
the court is satisfied that:
- (a)
- the applicant was not, in any way,
involved in the commission of a foreign serious offence in respect of which
the foreign forfeiture order was made; and
- (b)
- if the applicant acquired the
interest in the property at the time of or after the commission of such an
offence—the property was neither proceeds nor an instrument of such an
offence;
the court must make an order:
- (c)
- declaring the nature, extent
and value (as at the time when the order is made) of the applicant's interest
in the property; and
- (d)
- either:
- (i)
- 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).
Certain people need leave to apply
- (3)
- A person who was given notice of, or appeared at, the hearing held in
connection with the making of the foreign forfeiture order is not entitled to
apply under subsection (1) unless the court gives leave.
- (4)
- The court
may give leave if satisfied that there are special grounds for doing so.
- (5)
- Without limiting subsection (4), the court may grant a person leave if
the court is satisfied that:
- (a)
- the person, for a good reason, did not
attend the hearing referred to in subsection (3) although the person had
notice of the hearing; or
- (b)
- particular evidence that the person proposes to
adduce in connection with the proposed application under subsection (1)
was not available to the person at the time of the hearing referred to in
subsection (3).
Period for applying
- (6)
- Unless the court gives leave,
an application under subsection (1) is to be made before the end of 6
weeks beginning on the day when the foreign forfeiture order is registered in
the court.
- (7)
- The court may give leave to apply outside that period if the
court is satisfied that the person's failure to apply within that period was
not due to any neglect on the person's part.
Procedural matters
- (8)
- A
person who applies under subsection (1) must give to the DPP notice, as
prescribed, of the application.
- (9)
- The DPP is to be a party to proceedings
on an application under subsection (1). The Attorney-General may
intervene in the proceedings.
34D Enforcement of foreign pecuniary penalty orders
- (1)
- A foreign pecuniary penalty order registered in a court under this
Subdivision has effect, and may be enforced, as if it were a pecuniary penalty
order that:
- (a)
- was made by the court under the Proceeds of Crime Act at the time of
registration; and
- (b)
- requires the payment to the Commonwealth of the amount
payable under the order.
- (2)
- Any amount paid (whether in Australia, in the
foreign country in which the order was made or elsewhere) in satisfaction of
the foreign pecuniary penalty order is taken to have been paid in satisfaction
of the debt that arises because of the registration of the foreign pecuniary
penalty order in that court.
- (3)
- Division 5 of Part 2-4 of the
Proceeds of Crime Act does not apply in relation to a foreign pecuniary
penalty order registered under this Subdivision.
34E Enforcement of foreign restraining orders
- (1)
- A foreign restraining order registered in a court under this Subdivision
has effect, and may be enforced, as if it were a restraining order that:
- (a)
- was made by the court under the Proceeds of Crime Act at the time of the
registration; and
- (b)
- directed that the property specified in the order is
not to be disposed of or otherwise dealt with by any person.
- (2)
- In
particular:
- (a)
- section 288 of that Act applies as if:
- (i)
- the
reference in that section to the Official Trustee's exercise of powers under
that Act included a reference to the Official Trustee's exercise of those
powers in relation to a foreign restraining order so registered; and
- (ii)
- the
reference in that section to the Official Trustee's performance of functions
or duties under that Act included a reference to the Official Trustee's
performance of those functions or duties in relation to such a foreign
restraining order; and
- (b)
- section 289 of that Act applies as if the
reference in that section to controlled property included a reference to
property that is subject to an order under section 35; and
- (c)
- section 290 of that Act applies as if the reference in that section to
the controlled property were a reference to the property that is subject to an
order under section 35.
- (3)
- Divisions 1, 2 and 3 of
Part 2-1, section 33, Divisions 5 and 6 of Part 2-1 and
sections 142, 143, 169, 170 and 282 to 287 of the Proceeds of Crime Act
do not apply in relation to a foreign restraining order registered under this
Subdivision.
Note: Division 3 of this Part contains further provisions
relating to registered foreign restraining orders.
34F Faxed copies of foreign orders
- (1)
- A faxed copy of a sealed or authenticated copy of a foreign order or an
amendment of a foreign order is to be regarded for the purposes of this Act as
the same as the sealed or authenticated copy.
- (2)
- However, if registration of
the order under this Subdivision is effected by means of the faxed copy, the
registration ceases to have effect at the end of 21 days unless the sealed or
authenticated copy has been filed by then in the court that registered the
order.
34G Cancelling registration
- (1)
- The Attorney-General may direct the DPP to apply to a court in which:
- (a)
- a foreign pecuniary penalty order; or
- (b)
- a foreign restraining order;
has been registered under this Subdivision for cancellation of the
registration.
- (2)
- Without limiting subsection (1), the Attorney-General
may give a direction under that subsection in relation to an order if the
Attorney-General is satisfied that:
- (a)
- the order has ceased to have effect
in the foreign country in which the order was made; or
- (b)
- cancellation of
the order is appropriate having regard to the arrangements entered into
between Australia and the foreign country in relation to the enforcement of
orders of that kind.
- (3)
- The court to which the DPP applies in accordance
with a direction under subsection (1) must cancel the registration
accordingly.
34H Certain provisions of the Proceeds of Crime Act not to
apply
Part 4-2 and sections 322 and 323 of the Proceeds of Crime Act do
not apply to a foreign order registered under this Subdivision.
Subdivision
B—Restraining orders relating to foreign criminal proceedings
34J Requests for restraining orders
- (1)
- If:
- (a)
- either:
- (i)
- a criminal proceeding has commenced, or there
are reasonable grounds to suspect that a criminal proceeding is about to
commence, in a foreign country in respect of a foreign serious offence; or
- (ii)
- a foreign country is specified in regulations made for the purposes of
subsection 34(2), and foreign confiscation proceedings have commenced, or
there are reasonable grounds to suspect that such proceedings are about to
commence, in the foreign country; and
- (b)
- there are reasonable grounds to
believe that property that may be made or is about to be made the subject of a
foreign restraining order is located in Australia; and
- (c)
- the foreign
country requests the Attorney-General to obtain the issue of a restraining
order against the property;
the Attorney-General may authorise the DPP to
apply to a specified court for a restraining order against that property in
respect of the offence.
- (2)
- The court specified must be a court with
proceeds jurisdiction in a State or Territory in which the property, or some
or all of the property, is reasonably suspected of being located.
34K Applying for and making restraining orders
- (1)
- If so authorised, the DPP may apply for such a restraining order against
that property in respect of the offence.
- (2)
- Part 2-1 of the
Proceeds of Crime Act applies to the application, and to any restraining order
made as a result.
- (3)
- It applies as if:
- (a)
- references in that Part to an indictable offence were references to the
foreign serious offence; and
- (b)
- references in that Part to a court with
proceeds jurisdiction were references to the court specified in the DPP's
authorisation under section 34J of this Act; and
- (c)
- in a case to which
subparagraph 34J(1)(a)(i) applies:
- (i)
- references in that Part to a person
charged with an indictable offence were references to a person against whom a
criminal proceeding in respect of a foreign serious offence has commenced in a
foreign country; and
- (ii)
- references in that Part to it being proposed to
charge a person with an indictable offence were a reference to it being
reasonably suspected that criminal proceedings are about to commence in
respect of a foreign serious offence against the person in a foreign country;
and
- (iii)
- paragraphs 17(1)(e) and (f), subsections 17(3) and (4) and
sections 18 to 20, 29, 44 and 45 of that Act were omitted; and
- (d)
- in
a case to which subparagraph 34J(1)(a)(ii) applies in relation to a foreign
country:
- (i)
- references in that Part to reasonable grounds to suspect that
a person has committed a serious offence were references to reasonable grounds
to suspect that such proceedings have commenced, or are about to commence, in
the foreign country; and
- (ii)
- section 17, paragraphs 18(1)(e) and (f),
subsection 18(3) and sections 19, 20, 29, 44 and 45 of that Act were
omitted.
34L Excluding property from restraining orders
If:
- (a)
- a person (the defendant ) has been alleged, in a criminal
proceeding in a foreign country, to have committed a foreign serious offence;
and
- (b)
- a court makes a restraining order under Part 2-1 of the
Proceeds of Crime Act against property in respect of the offence; and
- (c)
- a
person having an interest in the property applies to the court under
Division 3 of Part 2-1 of that Act for an order varying the
restraining order to exclude the person's interest from the restraining order;
the court must grant the application if the court is satisfied that:
- (d)
- in
a case where the applicant is not the defendant:
- (i)
- the applicant was not,
in any way, involved in the commission of the offence; and
- (ii)
- if the
applicant acquired the interest at the time of or after the commission, or
alleged commission, of the offence—the property was neither proceeds nor
an instrument of the offence; or
- (e)
- in any case—it is in the public
interest to do so having regard to any financial hardship or other consequence
of the interest remaining subject to the order.
34M Cessation of restraining orders
- (1)
- A restraining order made in respect of a foreign serious offence as a
result of an application under subsection 34K(1) ceases to have effect:
- (a)
- at the end of the period of 30 days commencing on the day on which the order
is made; or
- (b)
- if the court that made the restraining order, on application
made by the DPP before the end of the period referred to in
paragraph (a), extends the period of operation of the order—at the
end of the period as so extended.
- (2)
- However, the restraining order ceases to have effect upon the registration
of a foreign restraining order against the property under Subdivision A if
that registration occurs before the end of the period referred to in
paragraph (1)(a) or (b) (as the case requires).
Subdivision
C—Production orders relating to foreign serious offences
34N Requests for production orders
- (1)
- If:
- (a)
- a criminal proceeding or criminal investigation has commenced
in a foreign country in respect of a foreign serious offence; and
- (b)
- a
property-tracking document in relation to the offence is reasonably suspected
of being located in Australia; and
- (c)
- the foreign country requests the
Attorney-General to obtain the issue of a production order requiring that the
document be produced or made available for inspection in accordance with
Australian law;
the Attorney-General may authorise an authorised officer of
an enforcement agency to apply to a magistrate of a specified State or
Territory for a production order under the Proceeds of Crime Act in respect of
the offence for the purpose of obtaining possession of the property-tracking
document.
- (2)
- The State or Territory specified must be a State or Territory
in which the document is, or some or all of the documents are, reasonably
suspected of being located.
34P Applying for and making production orders
- (1)
- If so authorised, the authorised officer may apply for such a production
order against that property in respect of the offence.
- (2)
- Part 3-2 of
the Proceeds of Crime Act applies to the application, and to any production
order made as a result.
- (3)
- It applies as if:
- (a)
- references in that Part
to an indictable offence or to a serious offence were references to the
foreign serious offence; and
- (b)
- references in that Part to a magistrate were
references to a magistrate of the State or Territory specified in the
authorised officer's authorisation under subsection 34N(1); and
- (c)
- subparagraphs 202(5)(a)(ii) and (iii) and (c)(ii) and (iii), paragraph
202(5)(e) and subsection 205(1) of that Act were omitted.
34Q Retaining produced documents
- (1)
- An authorised officer who takes possession of a document under a
production order made in respect of a foreign serious offence may retain the
document pending a written direction from the Attorney-General as to how to
deal with the document.
- (2)
- Directions from the Attorney-General may include
a direction that the document be sent to an authority of the foreign country
that requested the obtaining of the production order.
Subdivision
D—Notices to financial institutions
34R Giving notices to financial institutions
- (1)
- The Attorney-General or a senior Departmental officer 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 Attorney-General or the senior Departmental officer must not issue the
notice unless he or she reasonably believes that giving the notice is
required:
- (a)
- to determine whether to take any action under this Division,
or under the Proceeds of Crime Act in connection with the operation of this
Division; or
- (b)
- in relation to proceedings under this Division, or under the
Proceeds of Crime Act in connection with the operation of this Division.
- (3)
- In this section:
"senior Departmental officer" has the same meaning as
in the Proceeds of Crime Act.
34S Contents of notices to financial institutions
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 Division, or under the Proceeds of Crime Act in connection with the
operation of this Division; or
- (ii)
- in relation to proceedings under this
Division, or under the Proceeds of Crime Act in connection with the operation
of this Division;
(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 34V (disclosing existence or
nature of a notice); and
- (g)
- set out the effect of section 34W (failing
to comply with a notice).
34T Protection from suits etc. for those complying with
notices
- (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 34R 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 34R 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.
34U Making false statements in
applications
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 34R.
Maximum penalty: Imprisonment for 12 months or 60 penalty
units, or both.
34V Disclosing existence or nature of notice
A person is guilty of an offence if:
- (a)
- the person is given a notice under
section 34R; 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.
34W Failing to comply with a notice
A person is guilty of an offence if:
- (a)
- the person is given a notice under
section 34R; 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.
Subdivision
E—Monitoring orders relating to foreign serious offences 34X Requests
for monitoring orders
- (1)
- If:
- (a)
- a criminal proceeding or criminal investigation has commenced
in a foreign country in respect of a foreign serious offence referred to in
subsection (2); and
- (b)
- information about transactions conducted through
an account with a financial institution in Australia is reasonably suspected
of being relevant to the proceeding or investigation; and
- (c)
- the foreign
country requests the Attorney-General to obtain the issue of an order
directing the financial institution to give information about transactions
conducted through the account;
the Attorney-General may authorise an
authorised officer of an enforcement agency to apply to a judge of a specified
court for a monitoring order under the Proceeds of Crime Act in respect of the
offence for the purpose of obtaining the information requested by the foreign
country.
- (2)
- These are foreign serious offences to which
paragraph (1)(a) applies:
- (a)
- an offence punishable by imprisonment
for 3 or more years that:
- (i)
- involves unlawful conduct relating to a narcotic substance; or
- (ii)
- is a
money laundering offence; or
- (iii)
- involves 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)
- involves unlawful conduct by a
person that causes, or is intended to cause, a loss to the foreign country in
question or another person of at least $10,000;
- (b)
- an offence involving
the smuggling of migrants;
- (c)
- an offence involving failure to report
financial transactions;
- (d)
- an ancillary offence in respect of an offence
referred to in paragraph (a), (b) or (c).
- (3)
- The court specified must
be a court of a State or Territory that has jurisdiction to deal with criminal
matters on indictment.
34Y Applying for and making monitoring orders
- (1)
- If so authorised, the authorised officer may apply for such a monitoring
order against that property in respect of the offence.
- (2)
- Part 3-4 of
the Proceeds of Crime Act applies to the application, and to any monitoring
order made as a result.
- (3)
- It applies as if:
- (a)
- references in that Part
to a serious offence were references to an offence of the kind referred to in
paragraph 34X(1)(a); and
- (b)
- disclosing the existence or the operation of the
order for the purpose of complying with a person's obligations under
section 34Z of this Act were a purpose specified in subsection 223(4) of
the Proceeds of Crime Act.
34Z Passing on information given under monitoring
orders
If an enforcement agency is given information under a monitoring order made in
relation to a foreign serious offence, the enforcement agency must, as soon as
practicable after receiving the information, pass the information on to:
- (a)
- the Attorney-General; or
- (b)
- an officer of the Attorney-General's
Department specified by the Attorney-General by written notice to the
enforcement agency.
Subdivision F—Search warrants relating to foreign
serious offences
34ZA Requests for search warrants
- (1)
- If:
- (a)
- a criminal proceeding or criminal investigation has commenced
in a foreign country in respect of a foreign serious offence; and
- (b)
- proceeds or an instrument of the offence, or a property-tracking document in
relation to the offence, is reasonably suspected of being located in
Australia; and
- (c)
- the foreign country requests the Attorney-General to
obtain the issue of a search warrant relating to the proceeds, instrument or
document;
the Attorney-General may authorise an authorised officer of an
enforcement agency to apply to a magistrate of a specified State or Territory
for a search warrant under the Proceeds of Crime Act in relation to the
proceeds, instrument or document.
- (2)
- The State or Territory specified must
be a State or Territory in which:
- (a)
- the proceeds, or some or all of the
proceeds, are reasonably suspected of being located; or
- (b)
- the instrument
is, or some or all of the instruments are, reasonably suspected of being
located; or
- (c)
- the document is, or some or all of the documents are,
reasonably suspected of being located.
34ZB Applying for and issuing search warrants
- (1)
- If so authorised, the authorised officer may apply for such a search
warrant, in relation to those proceeds, that instrument or that document, in
respect of the offence.
- (2)
- Part 3-5 of the Proceeds of Crime Act
applies to the application, and to any search warrant issued as a result.
- (3)
- It applies as if:
- (a)
- references in that Part to a property-tracking
document were references to a property-tracking document relating to the
offence; and
- (b)
- references in that Part to a magistrate were references to a
magistrate of the State or Territory specified in the authorised officer's
authorisation under subsection 34ZA(1); and
- (c)
- paragraph 228(1)(d) and
sections 256 to 258 of that Act were omitted.
34ZC Seizure of other property and documents
- (1)
- A search warrant issued under Part 3-5 of the Proceeds of Crime Act
in relation to a foreign serious offence authorises an authorised officer to
seize property or a thing that he or she finds and that he or she believes on
reasonable grounds to be:
- (a)
- proceeds or an instrument of the offence or a
property-tracking document in relation to the offence, although not of the
kind specified in the warrant; or
- (b)
- proceeds or an instrument of, or a
property-tracking document in relation to, another foreign serious offence in
relation to which a search warrant issued under that Part is in force; or
- (c)
- something that:
- (i)
- is relevant to a criminal proceeding in the foreign
country in respect of the foreign serious offence; or
- (ii)
- will afford
evidence as to the commission of an Australian criminal offence.
- (2)
- However, this section only applies if the authorised officer believes on
reasonable grounds that it is necessary to seize the property or thing in
order to prevent its concealment, loss or destruction or its use in committing
an offence.
34ZD Return of seized property to third parties
- (1)
- A person who claims an interest in property (other than a
property-tracking document) that has been seized under a search warrant issued
under Part 3-5 of the Proceeds of Crime Act in relation to a foreign
serious offence may apply to a court for an order that the property 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 head of the authorised officer's enforcement agency
to return the property to the applicant if the court is satisfied that:
- (a)
- the applicant is entitled to possession of the property; and
- (b)
- the property
is not proceeds or an instrument of the relevant foreign serious offence; and
- (c)
- the person who is believed or alleged to have committed the relevant
foreign serious offence has no interest in the property.
- (4)
- If the court
makes such an order, the head of the authorised officer's enforcement agency
must arrange for the property to be returned to the applicant.
- (5)
- This
section does not apply to property that has been seized because it may afford
evidence as to the commission of an Australian criminal offence.
34ZE Dealing with seized property (other than property-tracking
documents)
Property covered by this section
- (1)
- Property (other than a
property-tracking document) must be dealt with in accordance with this section
if:
- (a)
- it has been seized under a search warrant issued under
Part 3-5 of the Proceeds of Crime Act in relation to a foreign serious
offence; and
- (b)
- it has not been seized under paragraph 34ZC(1)(c).
General
rule—property to be returned after 30 days
- (2)
- If, at the end of the
period of 30 days after the day on which the property was seized:
- (a)
- neither a foreign restraining order, nor a foreign forfeiture order, in
relation to the property has been registered in a court under Subdivision A;
and
- (b)
- a restraining order has not been made under Subdivision B in respect
of the property in relation to the foreign serious offence;
the head of the
enforcement agency whose authorised officer seized the property must, unless
subsection (3), (5) or (7) applies, arrange for the property to be
returned to the person from whose possession it was seized as soon as
practicable after the end of that period.
Effect of restraining orders being
registered or obtained
- (3)
- If, before the end of that period:
- (a)
- a
foreign restraining order in relation to the property is registered in a court
under Subdivision A; or
- (b)
- a restraining order is made under Subdivision B
in respect of the property in relation to the foreign serious offence;
the
head of the enforcement agency whose authorised officer seized the property:
- (c)
- if there is in force, at the end of that period, a direction by a court
that the Official Trustee take custody and control of the property—must
arrange for the property to be given to the Official Trustee in accordance
with the direction; or
- (d)
- if there is in force at the end of that period an
order under subsection (6) in relation to the property—must arrange
for the property to be retained until it is dealt with in accordance with
another provision of this Act or the Proceeds of Crime Act.
- (4)
- If the
property is subject to a direction of a kind referred to in
paragraph (3)(c), the Proceeds of Crime Act applies to the property as if
it were controlled property within the meaning of that Act.
Retaining
property despite restraining orders
- (5)
- If, at a time when the property is
in the possession of the head of the enforcement agency whose authorised
officer seized the property:
- (a)
- a foreign restraining order in respect of
the property has been registered in an Australian court under Subdivision A;
or
- (b)
- a restraining order has been made under Subdivision B in respect of
the property in relation to the foreign serious offence;
the head of the
enforcement agency may apply to the court in which the restraining order was
registered, or by which the restraining order was made, for an order that the
head of the enforcement agency retain possession of the property.
- (6)
- If the
court is satisfied that the head of the enforcement agency requires the
property to be dealt with in accordance with:
- (a)
- a request under section 34 that the restraining order be registered;
or
- (b)
- a request under section 34J that the restraining order be
obtained;
the court may make an order that the head of the enforcement
agency may retain the property for so long as the property is so required.
Effect of foreign forfeiture orders being registered or obtained
- (7)
- If,
while the property is in the possession of the head of the enforcement agency
whose authorised officer seized it, a foreign forfeiture order in respect of
the property is registered in a court under Subdivision A, the head of the
enforcement agency must deal with the property as required by the forfeiture
order.
34ZF Dealing with seized property-tracking documents
- (1)
- An authorised officer who takes possession of a property-tracking document
under a warrant issued in respect of a foreign serious offence may retain the
document for a period not exceeding one month pending a written direction from
the Attorney-General as to how to deal with the document.
- (2)
- Directions from
the Attorney-General may include a direction that the document be sent to an
authority of the foreign country that requested the issue of the warrant.
Division 3—Provisions relating to registered foreign restraining
orders
35 Court may order Official Trustee to take custody and control of
property
The court that registers a foreign restraining order under Subdivision A of
Division 2 may order the Official Trustee to take custody and
control of all or a specified part of property covered by the restraining
order if:
- (a)
- the DPP applies for the order; and
- (b)
- the court is
satisfied that it is required in the circumstances.
35A Procedural matters
- (1)
- The DPP must give written notice of an application for an order under
section 35 in respect of property to:
- (a)
- the owner of the property;
and
- (b)
- any other person the DPP has reason to believe may have an interest
in the property.
- (2)
- The court may, at any time before finally determining
the application, direct the DPP to give or publish notice of the application:
- (a)
- to a specified person or class of persons; and
- (b)
- in the manner and
within the time that the court considers appropriate.
- (3)
- A person who
claims an interest in property in respect of which the application is made may
appear and adduce evidence at the hearing of the application.
35B Ancillary orders
The court that makes an order under section 35 in relation to property
may at any time make orders ancillary to the order, including any one or more
of the following:
- (a)
- an order regulating the manner in which the Official
Trustee may exercise its powers or perform its duties under the order;
- (b)
- an
order determining any question relating to the property, including a question
relating to the liabilities of the owner of the property or the exercise of
the powers or the performance of the duties of the Official Trustee in
relation to the property;
- (c)
- an order directing the owner to give to the
Official Trustee, within a specified period, a statement, verified by the oath
of the owner, setting out such particulars of the property as the court
considers appropriate.
35C Dealing with restrained property
- (1)
- Division 3 of Part 4-1 of the Proceeds of Crime Act applies to
the property as if the property were controlled property within the meaning of
that Act.
- (2)
- However, the Official Trustee must, before exercising a power
under section 278 of the Proceeds of Crime Act in relation to the
property, consult with the foreign country that made the request under
section 34 relating to the foreign restraining order covering the
property.
35D Money not to be paid into the Common Investment Fund
Money that is in the custody or control of the Official Trustee because of a
foreign restraining order must not be paid into the Common Investment Fund
under section 20B of the Bankruptcy Act 1966 (despite anything in that
Act).
35E Undertakings
The court that:
- (a)
- registers a foreign restraining order against property
under Subdivision A of Division 2; or
- (b)
- makes an order under
section 35 in relation to property;
may, upon application of a person
who claims an interest in the property, make an order as to the giving or
carrying out of an undertaking, by the DPP on behalf of the Commonwealth, with
respect to payment of damages or costs relating to the registration, making or
operation of the order.
35F Order to discharge certain registered foreign pecuniary penalty
orders
- (1)
- If:
- (a)
- a foreign restraining order is made against property of a
person in reliance on the person's conviction, or alleged commission, of a
foreign serious offence; and
- (b)
- the foreign restraining order is registered
under Subdivision A of Division 2; and
- (c)
- a foreign pecuniary penalty
order has been made against the person in relation to the person's conviction,
or alleged commission, of the offence or a related foreign serious offence;
and
- (d)
- the foreign pecuniary penalty order has been registered under
Subdivision A of Division 2; and
- (e)
- an order has been made under
section 35 ordering the Official Trustee to take control of the property;
the court in which the foreign pecuniary penalty order is registered may, by
order, direct the Official Trustee to pay to the Commonwealth an amount out of
that property.
- (2)
- The amount is to be the amount that would be the penalty
amount under the Proceeds of Crime Act if the foreign pecuniary penalty order
were a pecuniary penalty order under that Act.
- (3)
- For the purposes of
enabling the Official Trustee to comply with the order under
subsection (1), the court may, in that order or by a subsequent order:
- (a)
- direct the Official Trustee to sell or otherwise dispose of such of the
property that is under the control of the Official Trustee 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.
- (4)
- The execution of the deed or instrument by the person appointed by an
order under subsection (3) 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.
35G Official Trustee to carry out orders
- (1)
- As soon as practicable after an order is made under subsection 35F(1)
covering property that is money, the Official Trustee must:
- (a)
- apply the
money in payment of the costs payable to the Official Trustee, under
section 288 of the Proceeds of Crime Act, in respect of the order under
section 35 in respect of the property; and
- (b)
- subject to
subsection (3), credit the remainder of the money to the Confiscated
Assets Account as required by section 296 of that Act.
- (2)
- As soon as
practicable after an order is made under subsection 35F(1) covering property
that is not money, the Official Trustee must:
- (a)
- sell or otherwise dispose
of the property;
- (b)
- apply the proceeds of the sale or disposition in payment
of the costs payable to the Official Trustee, under section 288 of the
Proceeds of Crime Act, in respect of the order in respect of the property
(including expenses incurred in connection with selling or disposing of the
property); and
- (c)
- subject to subsection (3), credit the remainder of
the proceeds to the Confiscated Assets Account as required by section 296
of the Proceeds of Crime Act.
- (3)
- If the money or proceeds to which
paragraph (1)(b) or (2)(c) applies exceeds the amount payable to the
Commonwealth under the order under subsection 35F(1):
- (a)
- the amount to be
credited under that paragraph is the amount payable to the Commonwealth under
the order; and
- (b)
- the Official Trustee must pay an amount equal to the
excess to the person whose property was covered by the order under
section 35.
35H Discharge of person's liability under foreign pecuniary penalty
order
A person's liability under a foreign pecuniary penalty order is taken to be
discharged to the extent that the Official Trustee credits money to the
Confiscated Assets Account, as required by section 296 of the Proceeds of
Crime Act, in satisfaction of the person's liability under the order.
35J Creation of charge on property
- (1)
- If:
- (a)
- a foreign restraining order against property has been
registered under Subdivision A of Division 2; and
- (b)
- a foreign
pecuniary penalty order has been made against the person in reliance on the
person's conviction, or alleged commission, of:
- (i)
- the foreign serious
offence in relation to which the foreign restraining order was made; or
- (ii)
- a related foreign serious offence; and
- (c)
- the foreign pecuniary penalty
order has been registered under Subdivision A of Division 2;
the registration of the foreign restraining order or the foreign pecuniary
penalty order (whichever last occurs) creates, by force of this section, a
charge on the property to secure the payment of an amount to the Commonwealth.
- (2)
- The amount is to be the amount that would be the penalty amount under the
Proceeds of Crime Act if the foreign pecuniary penalty order were a pecuniary
penalty order under that Act.
- (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; and
- (b)
- has priority
over all other encumbrances; and
- (c)
- subject to section 35K, is not
affected by any change of ownership of the property.
35K When the charge ceases to have effect
The charge ceases to have effect in respect of the property on the earliest of
the following events:
- (a)
- the payment to the Commonwealth of the amount
under subsection 35J(2) in relation to the foreign pecuniary penalty order;
- (b)
- the sale or other disposition of the property:
- (i)
- under an order under
subsection 35F(3); or
- (ii)
- by the owner of the property with the consent of
the court in which the foreign pecuniary penalty order is registered; or
- (iii)
- if an order under section 35 ordered the Official Trustee to take
control of the property—by the owner of the property with the consent of
the Official Trustee;
- (c)
- 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;
- (d)
- the cancellation of the registration of the relevant foreign restraining
order or foreign pecuniary penalty order under section 34G.
35L Registering charges
- (1)
- A registration authority that keeps a register of property of a particular
kind may record in the register a charge created by section 35J on
property of that kind.
- (2)
- The registration authority may only do so on the
application of the DPP or the Official Trustee.
- (3)
- Each person who
subsequently deals with the property is taken to have notice of the charge for
the purposes of paragraph 35K(c).
- (4)
- In this section:
"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.
35M When order ceases to be in force
A foreign restraining order registered under Subdivision A of Division 2
ceases to be in force when the registration is cancelled under
section 34G.
37 Subsections 43(1) and 43A(1)
Omit "the Proceeds of Crime Act", substitute "a proceeds of crime law".
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