PROCEEDS OF CRIME ACT 2002 NO. 85, 2002

Table of Provisions

• Long Title
 

CHAPTER 1--Introduction

PART 1-1--PRELIMINARY

• 1 Short title  
• 2 Commencement  
• 3 Identifying defined terms  
• 4 Application of the Criminal Code  

PART 1-2--OBJECTS

• 5 Principal objects  

PART 1-3--OUTLINE OF THIS ACT

• 6 General  
• 7 The confiscation scheme (Chapter 2)  
• 8 Information gathering (Chapter 3)  
• 9 Administration (Chapter 4)  
• 10 Miscellaneous (Chapter 5)  
• 11 Interpreting this Act (Chapter 6)  

PART 1-4--APPLICATION

• 12 Act to bind Crown  
• 13 Act to apply both within and outside Australia  
• 14 Application  
• 15 Concurrent operation of State/Territory laws  
 

CHAPTER 2--The confiscation scheme

PART 2-1--RESTRAINING ORDERS

• 16 Simplified outline of this Part  

Division 1--Making restraining orders

• 17 Restraining orders—people convicted of or charged with indictable offences  
• 18 Restraining orders—people suspected of committing serious offences  
• 19 Restraining orders—people suspected of committing indictable offences etc.  
• 20 Restraining orders—people suspected of deriving literary proceeds from indictable offences etc.  
• 21 Refusal to make an order for failure to give undertaking  
• 22 Restraining orders must only relate to one suspect  
• 23 Conditions on restraining orders  
• 24 Allowance for expenses  
• 24A Excluding property from or revoking restraining orders in certain cases when expenses are not allowed  

Division 2--How restraining orders are obtained

• 25 DPP may apply for a restraining order  
• 26 Notice of application  
• 27 DPP may choose under which section it applies for a restraining order  
• 28 Prejudice to investigations  

Division 3--Excluding property from restraining orders

• 29 Court may exclude property from a restraining order  
• 30 Application to exclude property from a restraining order after notice of the application for the order  
• 31 Application to exclude property from a restraining order after notice of the order  
• 32 Application not to be heard unless DPP has had reasonable opportunity to conduct an examination  

Division 4--Giving effect to restraining orders

• 33 Notice of a restraining order  
• 34 Registering restraining orders  
• 35 Notifying registration authorities of exclusions from or variations to restraining orders  
• 36 Court may set aside a disposition contravening a restraining order  
• 37 Contravening restraining orders  

Division 5--Further orders

• 38 Court may order Official Trustee to take custody and control of property  
• 39 Ancillary orders  
• 40 Contravening ancillary orders relating to foreign property  

Division 6--Duration of restraining orders

• 41 When a restraining order is in force  
• 42 Application to revoke a restraining order  
• 43 Notice of revocation of a restraining order  
• 44 Giving security etc. to revoke etc. a restraining order  
• 45 Cessation of restraining orders  

PART 2-2--FORFEITURE ORDERS

• 46 Simplified outline of this Part  

Division 1--Making forfeiture orders

• 47 Forfeiture orders—conduct constituting serious offences  
• 48 Forfeiture orders—convictions for indictable offences  
• 49 Forfeiture orders—conduct constituting indictable offences etc.  
• 50 Existence of other confiscation orders  
• 51 Acquittals do not affect forfeiture orders under section 47 or 49  
• 52 Making of forfeiture order if person has absconded  
• 53 Jurisdictional issues concerning forfeiture orders  

Division 2--Other relevant matters when a court is considering whether to make forfeiture orders

• 54 Presumption in certain cases that property is an instrument of an offence  
• 55 Forfeiture orders can extend to other interests in property  
• 56 Forfeiture orders must specify the value of forfeited property  
• 57 A person may buy back forfeited property  
• 58 The court may also make supporting directions  

Division 3--How forfeiture orders are obtained

• 59 DPP may apply for a forfeiture order  
• 60 Additional application for a forfeiture order  
• 61 Notice of application  
• 62 Amending an application  
• 63 Court may dispense with notice requirements if person has absconded  
• 64 Procedure on application  
• 65 Applications to courts before which persons are convicted  

Division 4--Effect of forfeiture orders

• 66 What property is forfeited and when—general rule  
• 67 First exception—registrable property  
• 68 Second exception—if a joint owner dies before the order was made  
• 69 When can the Commonwealth begin dealing with forfeited property?  
• 70 How must the Commonwealth deal with forfeited property?  
• 71 Dealings with forfeited property  

Division 5--Reducing the effect of forfeiture orders

• 72 Relieving certain dependants from hardship  
• 73 Making exclusion orders  
• 74 Applying for exclusion orders  
• 75 Giving notice of matters relevant to an application  
• 76 When an application can be heard  
• 77 Making compensation orders  
• 78 Applying for compensation orders  
• 79 Giving notice of matters relevant to an application  

Division 6--The effect on forfeiture orders of acquittals and quashing of convictions

• 80 Forfeiture order made under section 47 or 49 unaffected by acquittal or quashing of conviction  
• 81 Discharge of forfeiture order made under section 48 on quashing of conviction  
• 82 Notice of application for confirmation of forfeiture order  
• 83 Procedure on application for confirmation of forfeiture order  
• 84 Court may confirm forfeiture order  
• 85 Effect of court's decision on confirmation of forfeiture order  
• 86 Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture order  

Division 7--Miscellaneous

• 87 Giving notice if a forfeiture order is discharged on appeal or by quashing of a conviction  
• 88 Returning property etc. following the discharge of a forfeiture order  
• 89 Person with interest in forfeited property may buy back the interest  
• 90 Buying out other interests in forfeited property  

PART 2-3--FORFEITURE ON CONVICTION OF A SERIOUS OFFENCE

• 91 Simplified outline of this Part  

Division 1--Forfeiture on conviction of a serious offence

• 92 Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence  
• 93 Making an extension order extending the period before property is forfeited  
• 94 Excluding property from forfeiture under this Part  
• 95 Court may declare that property has been forfeited under this Part  

Division 2--Effect of forfeiture on conviction of a serious offence

• 96 When is property forfeited—general rule  
• 97 First exception—registrable property  
• 98 Second exception—if a joint owner dies  
• 99 When can the Commonwealth begin dealing with forfeited property?  
• 100 How must forfeited property be dealt with?  
• 101 Minister may give supporting directions  

Division 3--Recovery of forfeited property

• 102 Court may make orders relating to transfer of forfeited property etc.  
• 103 Court may make orders relating to buying back forfeited property  
• 104 Applying for orders under sections 102 and 103  
• 105 Person with interest in forfeited property may buy back the interest  
• 106 Buying out other interests in forfeited property  

Division 4--The effect on forfeiture of convictions being quashed

• 107 The effect on forfeiture of convictions being quashed  
• 108 Notice of application for confirmation of forfeiture  
• 109 Procedure on application for confirmation of forfeiture  
• 110 Court may confirm forfeiture  
• 111 Effect of court's decision on confirmation of forfeiture  
• 112 Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture  
• 113 Giving notice if forfeiture ceases to have effect on quashing of a conviction  
• 114 Returning property etc. following forfeiture ceasing to have effect  

PART 2-4--PECUNIARY PENALTY ORDERS

• 115 Simplified outline of this Part  

Division 1--Making pecuniary penalty orders

• 116 Making pecuniary penalty orders  
• 117 Pecuniary penalty orders made in relation to serious offence convictions  
• 118 Making of pecuniary penalty order if person has absconded  
• 119 Ancillary orders  
• 120 Acquittals do not affect pecuniary penalty orders  

Division 2--Penalty amounts

• 121 Determining penalty amounts  
• 122 Evidence the court is to consider  
• 123 Value of benefits derived—non-serious offences  
• 124 Value of benefits derived—serious offences  
• 125 Value of benefits may be as at time of assessment  
• 126 Matters that do not reduce the value of benefits  
• 127 Benefits already the subject of pecuniary penalty  
• 128 Property under a person's effective control  
• 129 Effect of property vesting in an insolvency trustee  
• 130 Reducing penalty amounts to take account of forfeiture and proposed forfeiture  
• 131 Reducing penalty amounts to take account of tax paid  
• 132 Reducing penalty amounts to take account of fines etc.  
• 133 Varying pecuniary penalty orders to increase penalty amounts  

Division 3--How pecuniary penalty orders are obtained

• 134 DPP may apply for a pecuniary penalty order  
• 135 Additional application for a pecuniary penalty order  
• 136 Notice of application  
• 137 Amendment of application  
• 138 Procedure on application  
• 139 Applications to courts before which persons are convicted  

Division 4--Enforcement of pecuniary penalty orders

• 140 Enforcement of pecuniary penalty orders  
• 141 Property subject to a person's effective control  
• 142 Charge on property subject to restraining order  
• 143 Charges may be registered  
• 144 Penalty amounts exceeding the court's jurisdiction  

Division 5--The effect on pecuniary penalty orders of convictions being quashed

• 145 Pecuniary penalty order unaffected if not made in relation to a conviction  
• 146 Discharge of pecuniary penalty order if made in relation to a conviction  
• 147 Notice of application for confirmation of pecuniary penalty order  
• 148 Procedure on application for confirmation of pecuniary penalty order  
• 149 Court may confirm pecuniary penalty order  
• 150 Effect of court's decision on confirmation of pecuniary penalty order  

PART 2-5--LITERARY PROCEEDS ORDERS

• 151 Simplified outline of this Part  

Division 1--Making literary proceeds orders

• 152 Making literary proceeds orders  
• 153 Meaning of literary proceeds  
• 154 Matters taken into account in deciding whether to make literary proceeds orders  
• 155 Additional literary proceeds orders  
• 156 Ancillary orders  
• 157 Acquittals do not affect literary proceeds orders  

Division 2--Literary proceeds amounts

• 158 Determining literary proceeds amounts  
• 159 Deductions from literary proceeds amounts  
• 160 Reducing literary proceeds amounts to take account of tax paid  
• 161 Varying literary proceeds orders to increase literary proceeds amounts  

Division 3--How literary proceeds orders are obtained

• 162 DPP may apply for a literary proceeds order  
• 163 Notice of application  
• 164 Amendment of application  
• 165 Procedure on application  
• 166 Applications to courts before which persons are convicted  

Division 4--Enforcement of literary proceeds orders

• 167 Enforcement of literary proceeds orders  
• 168 Property subject to a person's effective control  
• 169 Charge on property subject to restraining order  
• 170 Charges may be registered  
• 171 Literary proceeds amounts exceeding the court's jurisdiction  

Division 5--The effect on literary proceeds orders of convictions being quashed

• 172 Literary proceeds order unaffected if not made in relation to a conviction  
• 173 Discharge of literary proceeds order if made in relation to a conviction  
• 174 Notice of application for confirmation of literary proceeds order  
• 175 Procedure on application for confirmation of literary proceeds order  
• 176 Court may confirm literary proceeds order  
• 177 Effect of court's decision on confirmation of literary proceeds order  

Division 6--Literary proceeds orders covering future literary proceeds

• 178 Literary proceeds orders can cover future literary proceeds  
• 179 Enforcement of literary proceeds orders in relation to future literary proceeds  
 

CHAPTER 3--Information gathering

PART 3-1--EXAMINATIONS

Division 1--Examination orders

• 180 Examination orders relating to restraining orders  
• 181 Examination orders relating to applications for confirmation of forfeiture  
• 182 Applications for examination orders  

Division 2--Examination notices

• 183 Examination notices  
• 184 Additional examination notices  
• 185 Form and content of examination notices  

Division 3--Conducting examinations

• 186 Time and place of examination  
• 187 Requirements made of person examined  
• 188 Examination to take place in private  
• 189 Role of the examinee's lawyer  
• 190 Examination by video link or telephone  
• 191 Record of examination  
• 192 Questions of law  
• 193 Approved examiner may restrict publication of certain material  
• 194 Protection of approved examiner etc.  

Division 4--Offences

• 195 Failing to attend an examination  
• 196 Offences relating to appearance at an examination  
• 197 Privileged information  
• 198 Admissibility of answers and documents  
• 199 Unauthorised presence at an examination  
• 200 Breaching conditions on which records of statements are provided  
• 201 Breaching directions preventing or restricting publication  

PART 3-2--PRODUCTION ORDERS

• 202 Making production orders  
• 203 Contents of production orders  
• 204 Powers under production orders  
• 205 Retaining produced documents  
• 206 Privilege against self-incrimination etc. does not apply  
• 207 Varying production orders  
• 208 Jurisdiction of magistrates  
• 209 Making false statements in applications  
• 210 Disclosing existence or nature of production orders  
• 211 Failing to comply with a production order  
• 212 Destroying etc. a document subject to a production order  

PART 3-3--NOTICES TO FINANCIAL INSTITUTIONS

• 213 Giving notices to financial institutions  
• 214 Contents of notices to financial institutions  
• 215 Protection from suits etc. for those complying with notices  
• 216 Making false statements in notices  
• 217 Disclosing existence or nature of notice  
• 218 Failing to comply with a notice  

PART 3-4--MONITORING ORDERS

• 219 Making monitoring orders  
• 220 Contents of monitoring orders  
• 221 Protection from suits etc. for those complying with orders  
• 222 Making false statements in applications  
• 223 Disclosing existence or operation of monitoring order  
• 224 Failing to comply with monitoring order  

PART 3-5--SEARCH AND SEIZURE

Division 1--Search warrants

• 225 Issuing a search warrant  
• 226 Additional contents of the information  
• 227 Contents of warrants  
• 228 The things that are authorised by a search warrant  
• 229 Applying for search warrants by telephone or other electronic means  
• 230 Issuing warrants by telephone etc.  
• 231 Unsigned telephone warrants in court proceedings  
• 232 Offence for stating incorrect names in telephone warrants  
• 233 Offence for unauthorised form of warrant  
• 234 Offence for execution etc. of unauthorised form of warrant  
• 235 Offence for giving unexecuted form of warrant  
• 236 Warrants that must be executed only during particular hours  
• 237 Restrictions on personal searches  
• 238 Availability of assistance and use of force in executing a warrant  
• 239 Announcement before entry  
• 240 Details of warrant to be given to occupier etc.  
• 241 Occupier entitled to be present during search  
• 242 Specific powers available to officers executing the warrant  
• 243 Use of equipment to examine or process things  
• 244 Moving things to another place for examination or processing  
• 245 Use of electronic equipment at premises  
• 246 Person with knowledge of a computer or a computer system to assist access etc.  
• 247 Securing electronic equipment  
• 248 Compensation for damage to electronic equipment  
• 249 Copies of seized things to be provided  
• 250 Providing documents after execution of a search warrant  

Division 2--Stopping and searching conveyances

• 251 Searches without warrant in emergency situations  
• 252 How an authorised officer exercises a power under section 251  

Division 3--Dealing with things seized

• 253 Receipts for things seized under warrant  
• 254 Responsibility for things seized  
• 255 Effect of obtaining forfeiture orders  
• 256 Returning seized things  
• 257 Authorised officer may apply for a thing to be retained for a further period  
• 258 Magistrate may order that the thing be retained  
• 259 Return of seized property to third parties  
• 260 Return of seized property if applications are not made for restraining orders or forfeiture orders  
• 261 Effect of obtaining restraining orders  
• 262 Effect of refusing applications for restraining orders or forfeiture orders  

Division 4--General

• 263 Application of Part  
• 264 Law relating to legal professional privilege not affected  
• 265 Jurisdiction of magistrates  
• 266 Offence for making false statements in applications  
 

CHAPTER 4--Administration

PART 4-1--POWERS AND DUTIES OF THE OFFICIAL TRUSTEE

Division 1--Preliminary

• 267 Property to which the Official Trustee's powers and duties under this Part apply  

Division 2--Obtaining information about controlled property

• 268 Access to books  
• 269 Suspect to assist Official Trustee  
• 270 Power to obtain information and evidence  
• 271 Privilege against self-incrimination  
• 272 Offences relating to exercise of powers under section 268 or 269  
• 273 Failure to provide information  
• 274 Failure of person to attend  
• 275 Refusal to be sworn or give evidence etc.  

Division 3--Dealings relating to controlled property

• 276 Preserving controlled property  
• 277 Rights attaching to shares  
• 278 Destroying or disposing of property  
• 279 Notice of proposed destruction or disposal  
• 280 Procedure if person objects to proposed destruction or disposal  
• 281 Proceeds from sale of property  

Division 4--Discharging pecuniary penalty orders and literary proceeds orders

• 282 Direction by a court to the Official Trustee  
• 283 Court may include further directions etc.  
• 284 Official Trustee to carry out directions  
• 285 Official Trustee not to carry out directions during appeal periods  
• 286 Discharge of pecuniary penalty orders and literary proceeds orders by credits to the Confiscated Assets Account  

Division 5--Miscellaneous

• 287 Money not to be paid into the Common Investment Fund  
• 288 Official Trustee's costs etc.  
• 289 Income generated from controlled property  
• 290 Official Trustee is not personally liable  
• 291 Indemnification of Official Trustee  

PART 4-2--LEGAL ASSISTANCE

• 292 Payments to legal aid commissions for representing suspects and other persons  
• 293 Payments made out of the Confiscated Assets Account  
• 294 Disclosure of information to legal aid commissions  

PART 4-3--CONFISCATED ASSETS ACCOUNT

• 295 Establishment of Account  
• 296 Credits to the Account  
• 297 Payments out of the Account  
• 298 Programs for expenditure on law enforcement, drug treatment etc.  
• 299 Determinations by Official Trustee about suspended and distributable funds  

PART 4-4--CHARGES OVER RESTRAINED PROPERTY FOR PAYMENT OF CERTAIN AMOUNTS

Division 1--Charges to secure certain amounts payable to legal aid commissions

• 300 Legal aid commissions' charges  
• 301 When the charge ceases to have effect  
• 302 Priority of charge  

Division 2--Charges to secure certain amounts payable to the Commonwealth

• 302A Charges to secure amounts payable under subsection 293(3)  
• 302B When the charge ceases to have effect  
• 302C Priority of charge  

PART 4-5--ENFORCEMENT OF INTERSTATE ORDERS IN CERTAIN TERRITORIES

Division 1--Interstate restraining orders

• 303 Registration of interstate restraining orders  
• 304 Effect of registration  
• 305 Duration of registration  
• 306 Cancellation of registration  
• 307 Charge on property subject to registered interstate restraining order  
• 308 Powers of Official Trustee in relation to interstate restraining orders  

Division 2--Interstate forfeiture orders

• 309 Registration of interstate forfeiture orders  
• 310 Effect of registration  
• 311 Duration of registration  
• 312 Cancellation of registration  

Division 3--Miscellaneous

• 313 Interim registration of faxed copies  
 

CHAPTER 5--Miscellaneous

• 314 State and Territory courts to have jurisdiction  
• 315 Proceedings are civil, not criminal  
• 316 Consent orders  
• 317 Onus and standard of proof  
• 318 Proof of certain matters  
• 319 Stay of proceedings  
• 320 Effect of the confiscation scheme on sentencing  
• 321 Deferral of sentencing pending determination of confiscation order  
• 322 Appeals  
• 323 Costs  
• 324 Powers conferred on judicial officers in their personal capacity  
• 325 Effect of a person's death  
• 326 Operation of other laws not affected  
• 327 Review of operation of Act  
• 328 Regulations  
 

CHAPTER 6--Interpreting this Act

PART 6-1--MEANING OF SOME IMPORTANT CONCEPTS

Division 1--Proceeds and instrument of an offence

• 329 Meaning of proceeds and instrument  
• 330 When property becomes, remains and ceases to be proceeds or an instrument  

Division 2--Convicted and related concepts

• 331 Meaning of convicted of an offence  
• 332 Meaning of quashing a conviction of an offence  
• 333 Meaning of conviction day  
• 334 Meaning of abscond  

Division 3--Other concepts

• 335 Proceeds jurisdiction  
• 336 Meaning of derived  
• 337 Meaning of effective control  

PART 6-2--DICTIONARY

• 338 Dictionary