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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
Criminal Proceeds Confiscation and Other
Acts Amendment Bill 2008
Explanatory Notes
Objectives of the Bill
The objective of the Bill is to make amendments to the following Acts
administered by the Attorney-General and Minister for Justice and Minister
Assisting the Premier in Western Queensland -
· The Criminal Proceeds Confiscation Act 2002 (CPC Act), following a
review of the Act, to ensure its continued effectiveness in achieving its
objects;
· The Fair Trading Act 1989 (FT Act) to remove the capacity for
exemptions from the prohibited hours of door-to-door trading;
· The Security Providers Act 1993 (SP Act) to improve industry
standards through establishing a requirement that security firms
belong to an approved industry association and to amend existing
provisions to reflect the Commonwealth's greater role in industrial
relations regulation; and
· The Trusts Act 1973 (Trusts Act) to enable bodies which are
deductible gift recipients, such as the State Library and the
Queensland Art Gallery, to receive donations from `Prescribed Private
Fund' (PPF) and ancillary fund donors without compromising the
donors' tax-exempt status.
Reasons for the Bill
Amendments to the Criminal Proceeds Confiscation Act 2002
The amendments are a result of a review of the CPC Act by the Department
of Justice and Attorney-General pursuant to section 266 of the Act.
The Terms of Reference for the review provided:
The purpose of the review is to assess the operation of the Act since its
commencement, including the strengths and achievements of the Act
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and ways in which the operation of the Act may be improved.
Specifically the Review will:
1. Gather information on the impact of the operation of the Act.
2. Consult with principal stakeholders in relation to:
a. areas where the Act is operating effectively in achieving its
objects; and
b. factors which may have limited the achievement of the
objects of the Act.
3. Consider recommendations regarding amendment to the Act,
made by the Parliamentary Crime and Misconduct Commission
in its Three Year Review of the Crime and Misconduct
Commission, Report No. 71 October 2006.
4. Make recommendations for any changes that may be required to
enable the Act to better achieve its objects.
Whilst the Review concluded that the Act was generally operating
effectively, a number of amendments were identified which will improve
the Act's ability to achieve its objects.
As required by the Terms of Reference, the review also considered the
Parliamentary Crime and Misconduct Committee's recommendations from
its report on the Crime and Misconduct Commission's confiscations
operations (Report No. 71). All but one of those recommendations has
been adopted.
The review also examined the legislation of other jurisdictions and the
recommendations of the Independent Review of the Operations of the
Proceeds of Crime Act 2002 (Cth) (`the Commonwealth Review').
Amendments to the Fair Trading Act 1989
The amendments to the FT Act reflect the Government's increasingly
strong approach to protecting consumers from inappropriate door-to-door
trading practices. While the FT Act prescribes prohibited hours for
door-to-door trading, it currently allows traders to apply to the chief
executive for approval to conduct door-to-door trading outside these hours.
The ability of traders to make uninvited approaches to people in their
homes causes substantial concern in the community. Some consumers feel
apprehensive and fearful of unknown people attending their premises at
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night, while others consider door-to-door trading to be an unwelcome
disruption to their personal and family time.
Amendments to the Security Providers Act 1993
The SP Act provides a licensing regime for bodyguards, crowd controllers,
security officers, private investigators, security advisers, security
equipment installers and security firms (together security providers).
Security providers must be licensed to operate in Queensland.
The key policy objective of the amendments to the SP Act is to raise
standards in the private security industry. This objective delivers on the
Government's 2006 announcement that professional security industry
associations would be given a supplementary compliance role to ensure
security firms are meeting behavioural benchmarks.
Amendments to the Trusts Act 1973
Government-linked arts institutions have requested amendments to enable
PPFs -- generally family-controlled charitable funds -- and ancillary
funds to make donations to the institutions without jeopardising the
donors' tax-exempt status. The Income Tax Assessment Act 1997 (C'wlth)
(Tax Act) only allows charitable foundations to make grants to bodies that
are both deductible gift recipients and charities for income tax purposes.
While the arts institutions are deductible gift recipients, it is considered by
the Australian Tax Office that for taxation purposes they are not charities at
law because of their links with government, despite their pursuit of
purposes that, if carried out by a non-government linked body, would be
charitable.
However, following amendments by the Commonwealth to the Tax Act in
2005, PPFs and ancillary funds are able to donate to government-linked
bodies that are deductible gift recipients, regardless of whether the
institution is a charity at law. For PPFs and ancillary funds with existing
trust deeds, this requires an amendment to the Trusts Act to enable trustees
to complete a declaration stating the trust can give to deductible gift
recipients that are not charities at law. Separately, the trustees must then
make an application for re-endorsement with the Australian Tax Office as
an income tax-exempt fund rather than a charitable fund.
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
Achievement of the Objectives
Amendments to the Criminal Proceeds Confiscation Act 2002
The Bill contains various amendments to the CPC Act, outlined below,
which will complement and strengthen existing provisions aimed at
removing the financial gain and increasing the financial loss associated
with illegal activity the main object of the Act.
Amendments to the Fair Trading Act 1989
The Bill removes the capacity from the FT Act for traders to be granted
exemptions from complying with the allowable hours for door-to-door
trading stipulated by section 63 of the FT Act. Removing capacity for
exemptions from the prohibited hours of door-to-door trading will strike a
better balance between the ability of traders to conduct door-to-door
trading and the community's right to enjoy privacy at home.
Amendments to the Security Providers Act 1993
Following community and industry consultation on possible models the
amendments to the SP Act will require security firms to maintain
membership of a security industry association approved by the chief
executive. Operating standards will also be raised by amending the
existing grounds in the SP Act that empower the chief executive to consider
suspending, cancelling or refusing to renew a firm's licence where
specified Queensland industrial relations laws are breached to reflect the
greater role now played by Commonwealth workplace relations legislation.
Amendments to the Trusts Act 1973
The Bill achieves the objectives by amending the Trusts Act so that PPFs
and ancillary funds can make grants to government-linked bodies whether
or not there is an express power to do so in their trust instrument. The Bill
will ensure that the power, or the exercising of that power, will not
invalidate the fund, nor affect its status as a charitable trust. PPFs and
ancillary funds will be able to `opt in' to this arrangement by way of
completing a signed declaration to be retained by the trust. Separately, a
PPF or ancillary fund will need to apply to the Australian Tax Office to
change their endorsement from a `charitable fund' to an `income tax
exempt fund'.
The amendments are retrospective to validate grants made by PPFs and
ancillary funds to deductible gift recipients before the commencement of
the amendments.
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Victoria and New South Wales have already made similar amendments to
their charitable Acts to address the problem of charitable foundations being
unable to donate to government-linked institutions that are established for
charitable purposes because they are not charities at law. The amendments
have been modelled on the New South Wales legislation as it is less
prescriptive than Victoria's.
Estimated Cost for Government Implementation
The amendments do not impose any additional obligations on Government
agencies that cannot be met from existing appropriations.
Consistency with Fundamental Legislative Principles
The Bill raises a number of fundamental legislative principle issues
concerning:
1. the abrogation of the privilege against self-incrimination. The Bill
confirms that the CPC Act allows for dissemination of information
obtained during compulsory examinations. This clarifying
amendment is consistent with the legislature's original intent which is
clearly expressed in the original Act's Explanatory Notes. This
amendment is required as in the DPP v Hatfield [2006] NSWSC 195,
the NSW Supreme Court considered equivalent provisions of the
Commonwealth's Proceeds of Crime Act 2002 and determined that
dissemination of information disclosed in an examination to police or
prosecutors to use against third parties or for use as a link to other
evidence against the examinee (that is, derivative use), was not
permitted under the provision as currently drafted.
2. compulsory acquisition of property with only fair compensation.
Amendments to the CPC Act will strengthen provisions which allow
for the restraint and forfeiture of proceeds of illegal activity and
tainted property as well as enabling property to be restrained and
ultimately substituted for tainted property in certain circumstances.
These amendments are justified by the policy against unjust
enrichment. Generally the Act contains the following safeguards (a) a
person can apply to exclude property from an order if it is shown that
the person's interest in the property is not illegally acquired; and (b)
provisions which assist in protecting the rights and interests of third
parties.
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
3. the reversal of the onus of proof. Confiscation proceedings are
declared, under the Act, to be civil proceedings. The CPC Act
currently contains various provisions which reverse the onus of proof.
In addition, this Bill contains an amendment which provides that once
the State has established that the respondent has been involved in a
serious crime related activity, the respondent will be required to prove
the lawful derivation of increased wealth and expenditure sought to be
recovered under the proceeds assessment application. This is
consistent with the overall intent of the civil confiscation scheme and
was recommended by the Parliamentary Crime and Misconduct
Committee. The Scrutiny of Legislation Committee has recognised
that reverse onus mechanisms are central to the capacity of civil based
forfeiture schemes to achieve their purpose.
4. rights and liberties of individuals and consistency with principles of
natural justice. The Bill contains amendments to the CPC Act which
enable the State to apply for an investigative order, such as an
examination order, without notice of the application or the order being
given to the person whose property is restrained unless they are the
person to whom the application or order is directed. These changes are
justified on the ground that these orders are significant investigative
tools which can be compromised by the requirement to give notice, for
example it might allow for collusion or intimidation or raise issues
about witness safety. Also, the Bill includes an ability to apply for an
investigation order without notice. Where an ex parte examination order
is made there is a minimum timeframe of 7 days between the order
being made and the examination taking place unless the court otherwise
orders. This timeframe is intended to enable the examinee time to seek
legal advice.
5. disclosure of private or confidential information without sufficient
justification. The Bill contains amendments to the CPC Act which
will require a financial institution, upon receipt of a written notice
issued by either a police officer of minimum rank of inspector or
authorised commission officer, to confirm whether a nominated
person holds an account with the institution. This provision is
narrower than other Australian jurisdictions, such as the
Commonwealth and South Australia, under which more extensive
information is compellable. The information which is compelled
under the amendments are limited to the minimum required to obtain
a warrant. Also, a police officer or commission officer can only
compel the disclosure of this information if they reasonably believe
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that the information is required (a) to determine whether to take any
action under the Act; or (b) in relation to proceedings under the Act.
6. immunity from proceedings. The extension of the financial
institution provisions in the CPC Act will also see the extension of the
current civil immunity provisions applying to financial institutions
who volunteer information under the Act. This immunity is necessary
to enable a person acting under a statutory obligation to fulfil that
obligation.
7. retrospectivity. The amendments to the Trusts Act will be
retrospective to validate grants made by PPFs and ancillary funds to
deductible gift recipients before the commencement of the
amendments. This is important, as some trustees may have
inadvertently breached their trust deeds by making donations to
deductible gift recipients that are not charities at law due to their links
with Government. The amendments to the CPC Act concerning
proceeds assessment order provisions and external serious crime
related activity will apply in relation to activity happening before or
after the commencement of the section. This is consistent with the
original transitional provisions included in the Act (see sections 14
and 78). A similar approach is taken in relation to the amendments to
section 20 of the Act. The amendments to enable charges, under
section 88 of the CPC Act, to be registered over property will apply
from commencement. Section 88 already provides that all interests
are to be charged in favour of the State and for the Public Trustee or
appropriate officer to cause the charge to be registered; it is just that
there is no mechanism which presently allows this to occur. Also, the
Bill amends the definition of dealing to include `engaging in a
transaction that has the direct or indirect effect of changing the value
of a person's interest in the property'. The transitional provision
declares that this was, from the commencement of the definition,
always a dealing with property.
8. whether the legislation has sufficient regard to the institution of
Parliament. The new section 25B in the SP Act provides that the
chief executive may prescribe requirements under a regulation to
approve or withdraw approval of a security industry association. It
may be argued that this pays insufficient regard to the institution of
Parliament by allowing the delegation of legislative power. However,
specifying detailed criteria in a regulation is appropriate given matters
to be specified to reflect the diverse nature of the industry, for example
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privacy issues in closed circuit television monitoring compared to the
physical nature of security at licensed premises. Regulations are more
appropriate for the detail required to address this diversity and the
increasing use of technology in the industry. The criteria will also be
subject to Parliamentary scrutiny through the tabling and disallowance
process under Part 6 of the Statutory Instruments Act 1992.
Some of the amendments to the CPC Act, outlined above, merely continue
existing fundamental legislative principle issues associated with the current
Act.
Consultation
The Department of the Premier and Cabinet, Queensland Treasury,
Queensland Police Service, Queensland Corrective Services; Department
of Natural Resources and Water; Department of Education, Training and
the Arts; Department of Health; Department of Infrastructure and
Planning; Department of Tourism, Regional Development and Industry
(DTRDI); Department of Mines and Energy; Queensland Transport;
Department of Local Government, Sport and Recreation and Department of
Employment and Industrial Relations were consulted in the preparation of
the Bill.
Amendments to the Criminal Proceeds Confiscation Act 2002
A consultation draft of the amendments to the Criminal Proceeds
Confiscation Act 2002 was circulated to the following key stakeholders: the
Chief Justice of the Supreme Court, the Crime and Misconduct
Commission, the Director of Public Prosecutions, Legal Aid Queensland
and the Public Trustee. Also, the following Stakeholders were consulted
and given an opportunity to comment on the Terms of Reference and later,
on an issues paper which outlined proposed reforms: the Chief Judge of the
District Court, the Chief Magistrate, the Queensland Law Society, the
Queensland Bar Association, Queensland Council for Civil Liberties,
Commonwealth Director of Public Prosecutions, Australian Federal Police
and Australian Crime Commission.
Amendments to the Fair Trading Act 1989
The amendments to the FT Act have not been subject to community
consultation. The community's views on being disturbed in their homes by
marketers are clearly demonstrated by 2.58 million Australians registering
with the national "Do not call register" at the end of September 2008.
Recent media coverage concerning door-to-door trading outside of
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prescribed hours also highlighted substantial community concern about
this issue.
Industries that conduct door-to-door trading consider that flexible hours
benefit consumers who may be interested in particular products and
services, but are not at home during regular business hours. Some traders
argue that door-to-door trading outside of regular business hours is an
important part of their business model.
However, it is considered that removing the capacity for businesses to
conduct door-to-door trading outside of the hours prescribed by the FT Act
is a fair and reasonable way of allowing door-to-door trading, while also
addressing consumer concerns about being disrupted by unwelcome visits
by traders during the evening.
Amendments to the Security Providers Act 1993
During February and March 2008, the Department of Justice and Attorney
General released a Regulatory Impact Statement/Public Benefit Test on the
introduction of industry compliance roles, including a requirement for
membership of an approved industry association. The Department
received feedback from the community, government representatives, and
professional bodies, including the Australian Security Industry Association
Limited (ASIAL) and the Liquor, Hospitality and Miscellaneous Union
(LHMU). Stakeholders, including both ASIAL and LHMU generally
supported the introduction of a mandatory membership requirement as a
means of co-regulation.
Amendments to the Trusts Act 1973
The need for the amendments was identified by a group of arts statutory
authorities, namely the Queensland Library Foundation, the Library Board
of Queensland, the Queensland Art Gallery, the Queensland Museum, and
the Queensland Performing Arts Centre, who wrote to the Government
requesting these changes.
All Queensland Government departments have been consulted and support
the proposed changes.
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Notes on Provisions
Part 1 Preliminary
Clause 1 sets out the short title of the Act.
Clause 2 provides for commencement of the Act.
Part 2 Amendment of Criminal
Proceeds Confiscation Act 2002
Clause 3 provides that Part 2 amends the Criminal Proceeds Confiscation
Act 2002.
Clause 4 inserts a new subsection into the Act (section 5A) which clarifies
the extraterritorial application of the Act. This section is consistent with
recommendation 7 of the Parliamentary Crime and Misconduct
Committee's Three Year Review of the Crime and Misconduct
Commission (Report No. 71) [Parliamentary Report].
Clause 5 amends section 16 (Meaning of serious crime related activity) to
include references to external serious crime related activity. This is a
concept recently introduced into New South Wales's Criminal Assets
Recovery Act 1990. New subsection (3) defines an `external serious crime
related activity'.
Clause 6 amends section 17 (Meaning of serious criminal offence) to
expand the existing definition to include an offence under the law of the
Commonwealth or a place outside Queensland, including outside
Australia, that, if the offence had been committed in Queensland, would be
a serious criminal offence as otherwise defined by this section.
Clause 7 amends section 20 (Meaning of effective control of property) to
clarify that the relevant circumstances for determining effective control
during the course of proceedings are those existing at the time the initial
restraining order was made, prior to the Public Trustee taking control of the
property.
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Clause 8 inserts an additional subsection into section 28 (Application for
restraining order) to provide that an application for a restraining order that
relates to property derived from external serious crime related activity may
be made only if the person whose property it is has a connection with
Queensland, that is, if the person lives in Queensland or the property is
situated in Queensland.
Clause 9 inserts an additional subsection into section 29 (Affidavit) to
provide an additional requirement for an affidavit supporting an application
for a restraining order which concerns property derived from external
serious crime related activity. This is to ensure that confiscation
proceedings in relation to the property are not already underway in the
other jurisdiction.
Clause 10 amends section 37 (Supreme Court may make other orders) to
give effect to the reclassification of the various orders ancillary to a
restraining order as either administration orders or investigation orders (see
amended section 38 and new section 38A). New subsection (8) provides
that only the State may apply for an investigation order. The notice
requirements for `administrative orders' have been amended but the
substance remains unchanged. New subsection (9) provides that notice of
an application for an investigation order must be given to the person to
whom an examination order or property particulars order is directed or the
person whose property is to be seized under a property seizure order. New
section (11) provides that these notice requirements are subject to the DPP
asking the court to consider an application for an investigation order
without notice being given. These changes, and other associated changes
outlined below give effect to recommendation 8 of the Parliamentary
Report.
Clause 11 inserts a new section 37A (Hearing of the application) that is
similar to section 30A of the Act which was inserted when provision was
made for applications for restraining orders to be made without notice.
Subsection (2) provides that the court must consider an application for an
investigation order without notice if the DPP asked the court to do so.
Subsection (3) provides that the court may direct notice to be given to a
stated person or class of persons if considered appropriate.
Clause 12 omits the existing section 38 (Particular orders Supreme Court
may make) and inserts a new provision entitled `Administration orders
Supreme Court may make'. The new section classifies those orders
currently contained in subsections (1)(a), (b), (e), (g) and (h) as
administration orders. The section includes an additional court order
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which may require a person whose property is restrained to do anything
necessary or convenient to bring the property within the State. This
provision is modelled on section 39 of the Proceeds of Crime Act 2002
(Cth) and section 40 of the Criminal Assets Confiscation Act 2005 (SA).
Contravening this order is punishable by a maximum penalty of 100
penalty units or 2 years imprisonment. This is consistent with the penalty
provided for contravening an examination order (section 41) and the new
penalty for contravening a property particulars order (see new section
42A).
Clause 13 inserts a new section 38A (Investigation orders the Supreme
Court may make') into the Act. This section classifies those orders
currently contained in section 38(1)(c), (d), (f) and (i) as investigation
orders. This new section goes onto provide that if an examination order is
made without notice of the application being given to the examinee, the
examination must not be conducted less than 7 days after the order is made
unless the court considers it appropriate to be conducted at an earlier time.
This minimum timeframe will enable the examinee to obtain legal advice
about the examination and their obligations, as well as to apply for a grant
of Legal Aid.
Clause 14 omits section 38A (Meaning of judicial registrar for subdiv 1).
This is required because the position was abolished by the Justice and
Other Legislation Amendment Act 2007.
Clause 15 replaces section 39 (Judicial registrar's power to conduct
examinations) with a section entitled `Court officer's power to conduct
examinations'. The definition of `judicial registrar' in section 38A, which
is being omitted from the Act (see previous clause), included reference to
`officer of the court' and as a result, the continuation of the court officer's
power to conduct examinations needs to be reflected in the provisions
concerning examination orders. The substance of the section otherwise
remains the same.
Clause 16 amends section 39B (Examination to take place in private) to
omit the reference to `judicial registrar' and replace it with reference to
`court officer'.
Clause 17 amends section 39C (Role of the examinee's lawyer) to omit
references to `judicial registrar' and replace them with references to `court
officer'.
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Clause 18 amends section 39D (Recording evidence) to omit references to
`judicial registrar' and `judicial registrar's' and replace them with
references to `court officer' and `court officer's'.
Clause 19 amends section 41 (Offence to contravene examination order) to
omit the reference to `judicial registrar' and replace it with reference to
`court officer'.
Clause 20 inserts a new section 41A (Use and dissemination of
examination information). This new section provides a positive mandate
for the DPP or the commission to disseminate information obtained in an
examination to a corresponding entity or an entity of the State, another
State or the Commonwealth (defined in subsection (4)) whose lawful
function is to investigate or prosecute offences, to help the respective entity
to obtain other evidence or information (derived evidence) that may be
relevant to the enforcement of a corresponding law or to the investigation
or prosecution of an offence.
This section has been inserted as a result of the NSW Supreme Court case
of DPP v Hatfield [2006] NSWSC 195 which considered the equivalent
provisions of the Commonwealth's Proceeds of Crime Act 2002. In that
case it was determined that dissemination of information disclosed in an
examination to police or prosecutors to use against third parties or for use
as a link to other evidence against the examinee (that is, derivative use) was
not permitted by the provision as drafted.
However, the Explanatory Notes to the 2002 Act state that examination
information can be used to 'lead to further evidence, which is admissible
against the person who gave the answer or produced the document...' and
this implies that information obtained therein could be disseminated to
relevant the investigative or prosecuting agencies for that purpose. The
amendment is required to give effect to the original intent of the provision
and is consistent with recommendation 10 of the Parliamentary Report.
Subsection (2) provides that the dissemination of information, its use to
obtain derived evidence or the admissibility of derived evidence is
unaffected by the fact that examinations are conducted in private, any duty
of confidentiality owed to the examinee, or the purpose for which
information was obtained. These are issues were raised in the Hatfield case
and the case discussed therein - Johns v Australian Securities Commission
(1993) 178 CLR 408.
Clause 21 inserts a new section 42A (Offence to contravene property
particulars order). Under this provision, a person directed under a property
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particulars order to give a statement within a stated period of time must
comply with that direction unless the person has a reasonable excuse.
Additionally, a person must not make a statement which is false or
misleading in a material particular. The penalty for contravention is
consistent with the penalty for contravention of an examination order.
This new section is required as there is currently no specific mechanism to
enforce compliance with such an order. It is also consistent with one of the
proposals discussed in recommendation 14 of the Parliamentary Report.
Clause 22 amends section 45 (Notice of restraining order and other orders)
to provide that under existing subsection (2), the commission is not
required to give a person whose property is restrained under a restraining
order a copy of, or notice of, an examination order or a property particulars
order which is directed to another person.
Clause 23 amends section 47 (Supreme Court may exclude prescribed
respondent's property from restraining order). Subclause (1) inserts new
subsections (3) and (3A) to require the prescribed respondent to not only
provide written notice of the making of the exclusion application and the
grounds for the application but also the facts relied upon, to the State and
anyone else who has a interest in the property. The grounds for the
application and the facts relied upon must be fully stated in the notice.
These subsections are required to compel full disclosure between the
relevant parties to the application.
Subclause (2) inserts reference to `a relevant person' into section 47(8). As
a result, the section will provide that the State is not required to give notice
of the grounds for opposing the exclusion order and the application for that
order is not to be heard until the DPP has had a reasonable opportunity to
examine the applicant or a relevant person under an examination order,
whether or not an examination order has already been made. Subclause (3)
defines relevant person. This amendment is consistent with
recommendation D6 of the Commonwealth Review.
Clause 24 amends section 49 of the Act (Supreme Court may exclude other
property from restraining order) in similar terms as the amendments to
section 47. The applicant for an exclusion order under this section is,
however, a person other than the prescribed respondent.
Clause 25 inserts a new section 58A (Forfeiture order relating to external
serious crime related activity). Subclause (1) provides that a forfeiture
order application relating to property derived from external serious crime
related activity may be made only if the prescribed respondent lives in
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
Queensland or the property is situated in Queensland. Subclause (2) states
that the court must not make the order unless it is satisfied that no action
has been taken under a law of the Commonwealth or any place outside of
Queensland, including outside of Australia, against the property of the
prescribed respondent that is the subject of the application as a result of the
external serious crime related activity. Finally, subclause (3) provides that
an affidavit of an appropriate officer that includes a statement that the
officer has made due enquiry and is satisfied that no action has been taken
under a law of the Commonwealth or any place outside the Queensland,
including outside Australia, against the property of the prescribed
respondent is proof, in the absence of evidence to the contrary, of the
matters contained in the affidavit.
Clause 26 amends section 65 of the Act (Exclusion of property from
forfeiture order application) in similar terms as the amendments to section
47.
Clause 27 amends section 66 (Exclusion of property from forfeiture order)
in similar terms as the amendments to section 47.
Clause 28 amends section 71 of the Act (Exclusion of value of innocent
interest from forfeiture order). This clause inserts new subsections (3) and
(3A) into this section to require written notice of the application being
made, the grounds for the application and the facts relied upon, to the State
and anyone else who has a interest in the property. The grounds for the
application and the facts relied upon must be fully stated in the notice.
These subsections are required to compel full disclosure between the
relevant parties to the application.
Clause 29 amends section 78 of the Act (Making of proceeds assessment
order). This clause amends subsection (1) and inserts a number of new
subsections. Subclause (1) inserts, at the conclusion of subsection (1), a
reference to `a finding of serious crime related activity'. This term is used
in section 83 as amended.
Subsections (5) and (6) concern external serious crime related activity and
are drafted similarly to subsections (2) and (3) of new section 58A.
Subclauses (7) and (8) concern the relationship between proceeds
assessment orders and pecuniary penalty orders and adopts
recommendation 12 of the Parliamentary Report. Subsection (7) states that
the court may make a pecuniary penalty order and a proceeds assessment
order in relation to the same serious crime related activity however, as
made clear in Subsection (8), the amount of the pecuniary penalty order
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must be taken into account when making a later proceeds assessment order
in relation to the same serious crime related activity. Presently, section
257(1) of the Act provides that a proceeds assessment order and a
pecuniary penalty order may not be made in relation to the same serious
crime related activity. This provision is removed from the Act by other
amendments contained in this Bill.
Clause 30 amends section 80 of the Act (Proceeds assessment order
increase if forfeiture order discharged) to provide that the amount of the
proceeds assessment order can be varied by the court to increase the
amount payable, where the value of forfeited property is taken into account
in deciding the value of the proceeds derived, but that property is
subsequently excluded from the application of the forfeiture order. This is
an extension of Recommendation D19 of the Commonwealth Report.
Clause 31 amends section 83 (How particulars amounts may be treated) to
clarify that once the court makes a finding that the respondent has been
involved in a serious crime related activity in the relevant 6 year period, any
increase in the value of the person's wealth or amount of the person's
expenditure must be treated as proceeds derived by a person from an illegal
activity unless the court is satisfied that the reason for the difference is not
related to an illegal activity. This amendment is intended to make it clear
that the State is not required, in such cases, to prove that the proceeds were
derived from an illegal activity.
Clause 32 amends section 88 (Charge on property) to enable a charge
created by section 88(1) to be registered under the Land Act 1994 or Land
Title Act 1994 and inserts additional subsections which will establish the
process by which registration can occur.
Clause 33 amends section 103 (Meaning of effective control) to clarify that
a reference in section 20 to chapter 2 is taken to be a reference to chapter 3.
Clause 34 amends section 126 (Conditions about particular payments out
of restrained property) to give effect to the insertion of provisions dealing
with tainted property substitution declarations.
Clause 35 amends section 129 (Supreme Court may make other orders) to
give effect to the reclassification of the various orders ancillary to a
restraining order as either administration orders or investigation orders (see
amended section 130 and new section 130A). New subsection (8)
provides that only the State may apply for an investigation order. Existing
subsection (4) is amended to reflect this change. The notice requirements
for `administrative orders' have been amended but the substance remains
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
unchanged. New section (11) provides that these notice requirements are
subject to the DPP asking the court to consider an application for an
investigation order without notice being given. These changes, and other
associated changes outlined below give effect to recommendation 8 of the
Parliamentary Report.
Clause 36 inserts a new section 129A (Hearing of the application) which is
similar to section 121 of the Act. Subsection (2) provides that the court
must consider an application for an investigation order without notice if the
DPP asked the court to do so. Subsection (3) provides that the court may
direct notice to be given to a stated person or class of persons if considered
appropriate.
Clause 37 replaces the existing section 130 (Particular orders Supreme
Court may make) with a new provision entitled `Administration orders
Supreme Court may make'. The new section classifies those orders
currently contained in subsections (1)(a), (b), (e), (g) and (h) as
administration orders. The section includes an additional court order
which may require a person whose property is restrained to do anything
necessary or convenient to bring the property within the State. This
provision is modelled on section 39 of the Proceeds of Crime Act 2002
(Cth) and section 40 of the Criminal Assets Confiscation Act 2005 (SA).
Contravening this order is punishable by a maximum penalty of 100
penalty units or 2 years imprisonment.
Clause 38 inserts a new section 130A outlining the investigation orders the
Supreme Court may make. The section classifies those orders currently
contained in section 38(1)(c), (d), and (f) as investigation orders. This new
section goes on to provide that if an examination order is made without
notice of the application being given to the examinee, the examination must
not be conducted less than 7 days after the order is made unless the court
considers it appropriate to be conducted at an earlier time. This minimum
timeframe will enable the examinee to obtain legal advice about the
examination and their obligations as well as to apply for a grant of legal
aid.
Clause 39 omits existing section 130A (Meaning of judicial registrar for
subdiv 1). The term judicial registrar is being omitted from the Act as the
position was abolished by the Justice and Other Legislation Amendment
Act 2007.
Clause 40 replaces section 131 (Judicial registrar's power to conduct
examinations) with a section entitled `Court officer's power to conduct
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
examinations'. The definition of `judicial registrar' in section 130A, which
is being omitted from the Act included reference to `officer of the court'
and the continuation of the court officer's power to conduct examinations
needs to be reflected in the provisions concerning examination orders. The
substance of the section otherwise remains the same.
Clause 41 amends section 131B (Examination to take place in private) to
omit the reference to `judicial registrar' and replace it with reference to
`court officer'.
Clause 42 amends section 131C (Role of the examinee's lawyer) to omit
references to `judicial registrar' and replace them with references to `court
officer'.
Clause 43 amends section 131D (Recording evidence) to omit references to
`judicial registrar' and `judicial registrar's' and replace them with
references to `court officer' and `court officer's'.
Clause 44 amends section 133 (Offence to contravene examination order)
to omit the reference to `judicial registrar' and replace it with reference to
`court officer'.
Clause 45 inserts a new section 133A (Use and dissemination of
examination information). This new section is equivalent to new section
41A and provides a positive mandate for the DPP, the commission or the
commissioner for police to disseminate information obtained in an
examination to an corresponding entity or an entity of the State, another
State or the Commonwealth (defined in subsection (4)) whose lawful
function is to investigate or prosecute offences, to help the respective entity
obtain other evidence or information (derived evidence) that may be
relevant to the enforcement of a corresponding law or investigation or
prosecution of an offence.
Clause 46 inserts a new section 134A into the Act (Offence to contravene
property particulars order), which is the Chapter 3 equivalent of new
section 42A.
Clause 47 amends section 135 (Notice of restraining order) to provide that
under existing subsection (2), the DPP is not required to give a person
whose property is restrained under a restraining order a copy of, or notice
of, an investigation directed to another person.
Clause 48 makes consequential amendments to section 139 (Supreme
Court may exclude prescribed respondent's property from restraining
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
order) to give effect to the insertion of provisions dealing with tainted
property substitution declarations in new sections 153A to 153E.
Clause 49 makes consequential amendments to section 140 (Supreme
Court may exclude other property from restraining order) to give effect to
the insertion of provisions dealing with tainted property substitution
declarations in new sections 153A to 153E.
Clause 50 inserts a new Division 2A into Chapter 3, Part 4 entitled `Tainted
property substitution declaration'. The new Division will allow
applications for declarations over other property in which a convicted
person has an interest where the person used certain property in connection
with an offence but that particular property is not available for forfeiture.
New section 153A (Definitions for div 2A) contains the relevant definitions
for the new Division and section 153B (References to property that is not
available for forfeiture) clarifies when property is not available for
forfeiture.
New section 153C (Application for tainted property substitution
declaration) provides that the State may apply for a tainted property
substitution declaration. The prerequisites for such an order are outlined in
subsection (2).
Section 153D (Court may make tainted property substitution declaration)
outlines what the court has to be satisfied of when making such a
declaration. Subsection (3) provides that once a declaration is made the
substituted property is taken to be tainted property for Chapter 3.
Section 153E (Restraining order for property that may become subject to a
tainted property substitution declaration) allows for the restraint of
property that may become subject to a tainted property substitution
declaration. This can occur on application of the State (subsection (1)).
Subsections (3) and (4) relate to the application of existing restraining
order provisions and outline cases where there may be deviation. This new
section is intended to preserve the property until such time as the court
decides whether or not to make a tainted property substitution declaration
the application for which must occur in conjunction with an application for
a forfeiture order.
It is intended that enabling the court to make tainted property substitution
declarations will render ineffective attempts to dispose of, or distance
oneself from, tainted property. For example, the court may make a
declaration in the following instance - a defendant is convicted of
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
producing cannabis. Despite owning his own home, the defendant has
rented a house in order to grow the cannabis. Given that the rented house is
not available for forfeiture, the court may make a tainted property
substitution declaration over the home unit owned by the defendant and
accordingly, it could be liable for forfeiture to the State under the forfeiture
provisions. It is noted however that the forfeiture provisions in Chapter 3
are accompanied by a 'hardship discretion' which enables the court to have
regard, when making a forfeiture order, to hardship caused by the order, the
use ordinarily made or intended to be made, of the property, the seriousness
of the offence and anything else the court considers appropriate.
These provisions are based, in part, on the relevant provisions of Victoria's
Confiscation Act 1997 and are consistent with recommendation 13 of the
Parliamentary Report.
Clause 51 amends section 158 (Making an innocent interest exclusion
order) to give effect to the insertion of provisions dealing with tainted
property substitution declarations.
Clause 52 amends section 186 (Pecuniary penalty order increase if
forfeiture order discharged) to provide that the amount of the pecuniary
penalty order can be varied by the court to increase the amount payable,
where the value of forfeited property is taken into account in deciding the
value of the proceeds derived, but that property is subsequently excluded
from the application of the forfeiture order. This is an extension of
Recommendation D19 of the Commonwealth Report.
Clause 53 amends section 236 (Cancellation of filing) to remove references
to 'judicial registrars' as this position has been abolished.
Clause 54 inserts two new division headings into Chapter 8, Part 2 of the
Act. The heading of Division 1, which precedes section 247, is 'Records'.
The heading of Division 2 is entitled 'Information volunteered by financial
institutions'.
Clause 55 amends section 249 to include a confidentiality requirement.
Existing subsection (6) has been renumbered as subsection (7). Subclause
(2) inserts a new subsection (6) which provides that a person must not
disclose to anyone that a financial institution or officer of a financial
institution has given or intends to give information to a police officer or
commission officer or the nature of information given. Failure to comply is
punishable by a maximum penalty of 10 penalty units.
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
Clause 56 inserts a further division into Chapter 8, Part 2 entitled 'Notices
to financial institutions'. Various new sections are included, the first of
which is section 249A (Definition for div 3). This section contains a
definition of 'officer'.
New section 249B (Giving notice to financial institution) provides that a
police officer, of or above the rank of inspector, or an authorised
commission officer may give a written notice to a financial institution
asking them to advise whether a stated person holds an account with the
institution. Subsection (2) outlines the requirements of the notice and
subsection (3) provides that the notice must not be given unless the officer
reasonably believes that the giving of the notice is required to decide
whether to take action under the Act or in relation to proceedings under the
Act.
New section 249C (Prohibition on disclosure) contains the confidentiality
requirement which accompanies this new Part. The maximum penalty for
disclosing information in contravention of this prohibition is 100 penalty
units. A higher penalty level has been included in this section given that
this is information is compellable pursuant to the operation of this
provision rather than volunteered under section 249.
New section 249D (Protection from suits etc in relation to action taken
under s249B) copies over subsections (4) and (5) of section 249 so that it
applies to this new Part.
New section 249D (Financial institutions must comply with notice)
provides that a financial institution must comply with a notice given under
section 249B. Failure to do so is punishable by a maximum penalty of 100
penalty units.
Clause 57 amends section 250 (Money laundering) to include a new
offence of recklessly engaging in money laundering. The definition of
`recklessly' used in this section is adopted from equivalent offences in the
Commonwealth Act. The inclusion of this lower level offence is consistent
with money laundering offences in the Commonwealth, New South Wales,
Victoria and Tasmania. The maximum penalty for the offence will be 10
years imprisonment or 1500 penalty units. Section 251 (charging of money
laundering) will also apply to the new offence.
Clause 58 inserts a new section 256A (Consent orders) to provide that a
court may make an order in a proceeding under Chapter 2 and 3 with the
consent of the applicant and anyone else the court has reason to believe has
an interest in property that is the subject of the proceeding. The court may
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
also make an order if a person the court considers to have an interest in
property withholds consent or the person's consent could not be obtained
but the court nevertheless considers it appropriate to make the order. The
court may make such orders without consideration of the matters the court
would otherwise have to consider in the proceeding. Subsection (4)
clarifies that this section does not apply to an order made on sentence for a
criminal offence.
Clause 59 omits section 257 (Restriction on function) and inserts a new
section which consists of the existing subsection (2).
Clause 60 omits section 266 (Review of the Act) given that this Bill is a
result of the review undertaken pursuant to this section.
Clause 61 amends the heading of Chapter 12.
Clause 62 amends the heading of Chapter 12, Part 1 to refer to Act No. 68
of 2002. This clarifies that the provisions therein relate to the original Act.
Clause 63 inserts a new Part 3 into Chapter 12 after section 282
(Transitional provisions for the Criminal Proceeds Confiscation
Amendment Act 2008). This new Part contains the transitional provisions
for this Bill.
New section 283 (Definition for this part) contains the definitions for this
Part.
New section 284 (Property controlled by public trustee) provides that the
amendment to the definition of `effective control' applies in relation to
property whether the public trustee was directed to take control of the
property before or after the commencement of the amendments.
New section 285 (Proceeds assessment order relating to an external serious
crime related activity) contains a transitional provision for proceeds
assessment orders relating to an external serious crime related activity.
This provides that such orders will apply in relation to external serious
crime related activity happening before or after the commencement of this
section. This is consistent with original transitional provisions included in
the Act - for example, see sections 14 and 78.
New section 286 (Charges on property) contains the transitional provision
for charges on property. The amendment to enable charges, under section
88, to be registered over property will apply from commencement.
New section 287 (Orders under ss37 and 129) contains the transitional
arrangements for applications for orders under section 37 and 129.
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
New section 288 (Exclusion of property from orders) contains transitional
arrangements for the amendments to the relevant exclusion provisions in
Chapter 2. The amendment clarifies that applicants for exclusion of
property from restraining orders will be able to rely on notices already
given.
New section 289 (Transitional provision for amendment of definition of
dealing) contains the transitional provision for the definition of `dealing'
which declares that the transaction referred to in the extended definition
was, from the commencement of the definition, always a dealing with
property. This amendment is a clarifying amendment.
Clause 64 amends the example in Schedule 1, Part 2, section 3 example 1
to provide that income received from rental units acquired with the
proceeds of crime is a benefit derived from illegal activity. This change
reflects case law.
Clause 65 similarly amends the example in Schedule 1, Part 4, section 12
example 3.
Clause 66 amends schedule 6 to insert definitions of a number of terms
utilised throughout the amendments, as well as amendments to the
definitions of `dealing', to reflect case law, and `property'. The definition
of `property' has been extended to include reference to property whether
situated in Queensland or elsewhere. This is an additional amendment to
clarify that orders can be made in respect to property located outside
Queensland and is consistent with the approach adopted by the
Commonwealth, New South Wales, Victoria and South Australia.
Part 3 Amendment of Fair Trading Act
1989
Clause 67 provides that Part 3 amends the FT Act.
Clause 68 amends section 71A(1) of the FT Act (Exemptions from division
for particular contracts or types of contracts) to ensure exemptions may not
be granted to the prohibited hours of door-to-door trading. A dealer or
supplier of goods or services may currently apply to the chief executive for
an exemption from all or any of the provisions of Division 4 in the FT Act.
This clause will insert `other than section 63', which outlines the prohibited
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
hours for door-to-door trading, to remove the capacity for traders to be
granted an exemption from the prohibited hours under section 71A.
Clause 69 will insert Part 9 into the FT Act and outline the transitional
provisions for existing exemptions (and applications for exemptions) from
the prohibited door-to-door trading hours prescribed by section 63. The
transitional provisions state that on commencement of the amendments any
existing trading hours exemption is revoked; any existing application for an
exemption ends; and any entitlement or expectation to apply for or be given
a trading hours exemption is extinguished. This makes clear that once the
amendments commence, any existing exemptions from the prohibited
hours of door-to-door trading will immediately cease.
Part 4 Amendment of Security
Providers Act 1993
Clause 70 states that Part 4 amends the SP Act.
Clause 71 amends section 10 (Application) to introduce a requirement for
applications for security firm licences to include evidence that the applicant
is a current member of an approved security industry association.
Clause 72 amends the eligibility criteria set out in section 11 (Entitlement
to licences individuals) applying to individuals applying for a security
provider licence. In addition to meeting the existing criteria set out in
section 11, clause 72 requires an individual applying for a security firm
licence to satisfy the chief executive that the person is a current member of
an approved security industry association.
Clause 73 amends the eligibility criteria set out in section 13 (Entitlement
to licences corporation or firms) applying to corporations and firms
applying for a security provider licence. In addition to meeting the existing
criteria set out in section 13, clause 73 requires a corporation or firm to
satisfy the chief executive that it is a current member of an approved
security industry association.
Clause 74 amends section 21 (Grounds for suspension, cancellation or
refusal to renew) by expanding the grounds for suspension, cancellation or
refusal to renew a licence.
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
New section 21(1)(d) retains the existing capacity for a licence to be
suspended or cancelled or refused renewal where the licensee is an
individual or a partnership and the individual, partnership or any partner
has been convicted of an offence against the Industrial Relations Act 1999,
section 666 relating to the underpayment of wages, or has contravened an
order of the industrial commission or of the Industrial Magistrates Court to
pay wages.
New section 21(1)(e) expands the existing requirement to provide that a
licence can be suspended or cancelled or refused renewal where the
licensee is a corporation and the corporation has been convicted of an
offence against the Workplace Relations Act 1996 (Cwlth), section 719 in
relation to the payment of an amount to a person, or contravened an order
of an eligible court under the Workplace Relations Act 1996 (Cwlth),
section 719(6) or (7) or 720 to pay an amount to or on behalf of a person.
New section 21(1)(f) provides a licence can be suspended or cancelled or
refused renewal where the licensee is not a member of an approved security
industry association. However, new section 21(1A), provides that 21(1)(f)
only applies where 60 days have passed since the licensee was last a
member of an approved security industry association or the
commencement of this subsection (whichever is the latter). This will
enable security firms sufficient time to become members of an approved
industry association if an existing association loses its approved status.
Clause 75 inserts a new section 21A which provides that an approved
security association must, within 14 days after the end of each successive
month after becoming an approved security industry association, give the
chief executive written notice of each person whose membership of the
association ended during the month and the date the membership ended.
Clause 75 includes a maximum penalty of 20 penalty units.
Clause 76 inserts a new section 25B which provides that the chief executive
may prescribe requirements under a regulation to approve or withdraw
approval of a security industry association.
Clause 77 amends the heading of part 2, division 6 of the Act, `Appeals
against licence decisions' to include `and decisions about approval of
security industry associations'.
Clause 78 amends section 26 (Right to appeal to a court) to include section
26(3) which provides security industry associations a right of appeal
against a decision by the chief executive, where the chief executive refuses
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
to approve the association as a approved security industry association or
withdraws the association's approval under section 25B(a).
New section 26(4) provides that an appeal may be made under subsection
(1) or (2) to the Magistrates Court nearest the place where the applicant or
licensee resides or carries on, or proposes to carry on business or
employment under the licence. An appeal under subsection (3) must be
made to the Magistrates Court nearest the principal place where the
security industry association carries on business, or if the association's
principal place of business is outside Queensland - to the Brisbane
Magistrate's Court.
Clause 79 amends the dictionary to include definitions for the terms
`approved security industry association' and `security industry
association'.
Part 5 Amendment of Trusts Act 1973
Clause 80 provides that this part amends the Trusts Act 1973.
Clause 81 renumbers the provision for approved forms under the definition
for `approved form' in section 5 (1).
Clause 82 renumbers the previous section 109.
Clause 83 renumbers parts 9 and 10 and ss107 to 115.
Clause 84 inserts the new part 9 which--
· provides for new definitions under the Act:
eligible recipient means a deductible gift recipient under the Income Tax
Assessment Act 1997 (Cwlth), whether or not the deductible gift recipient is
a charity at law or (without limitation) is established for a charitable
purpose or purposes.
A government-linked body that is established for a charitable purpose or
purposes is not considered a charity at law by virtue of its connection with
government or the possibility of control of that body by the government.
An example of a government-linked body that is established for charitable
purposes that is a deductible gift recipient but is not a charity at law is the
State Library of Queensland.
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
The amendments to the Trusts Act 1973 will allow a prescribed trust to give
to an eligible recipient without jeopardising the prescribed trust's tax
exempt status.
prescribed trust means a trust--
a. that establishes and maintains a fund mentioned in item 2 of the
table of the Income Tax Assessment Act 1997 (Cwlth), section
30-15; or
b. that is established for charitable or philanthropic purposes and is
of a class prescribed under a regulation.
A prescribed trust is a prescribed private fund (PPF), a charitable fund
established in accordance with Commonwealth tax legislation that is
generally family-controlled. Another type of prescribed trust is an
ancillary fund which acts as an intermediary between members of the
public who make tax-deductible donations to the ancillary fund, and a
deductible gift recipient under the Income Tax Assessment Act 1997
(Cwlth).
trust instrument means the initial instrument establishing a prescribed
trust, as modified by all validly executed amendments.
This is the trust deed which establishes the trust. For many prescribed
trusts, their trust instrument will limit donations to only allow donations to
deductible gift recipients that are also charities at law.
· The new part 9 inserts a provision under section 108 allowing a
prescribed trust to include the power within its trust instrument to
donate to eligible recipients.
· Part 9 also inserts a new provision in section 109 where a trust
instrument does not contain an express power allowing donations to
eligible recipients.
This provision provides a statutory power that allows trustees of a
prescribed trust to donate to an eligible recipient or to establish an eligible
recipient. The donation may be by way of providing money, property or
benefits.
It is often not possible for trustees of a prescribed trust to alter the trust
instrument to allow donations to eligible recipients. Doing so would go
against a principle of trusts. A statute can override that principle by
granting the power to make a declaration under this section.
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
· Section 109 subsection (2) (a) provides that this power is available to
trustees of prescribed trusts despite any contrary provision in the trust
instrument.
· Subsection (2) (b) provides that where there is an express prohibition
against donating to a particular eligible recipient or class of eligible
recipients contained in the trust instrument, then subsection (1) does
not apply.
· Subsection (3) provides that the trustees of a prescribed trust must
have completed and retained a declaration approving the power
contained in subsection (1). This declaration can follow the approved
form wording or is to have wording that gives substantially the same
effect as the approved form.
· Subsection (4) allows that the approved form can be modified so that
the declaration only applies to a stated eligible recipient or class of
eligible recipients.
· Subsection (5) provides that where trustees have made a declaration
that has limitations under subsection (4) then subsection (1) will only
have effect for the stated eligible recipient or class of eligible
recipients.
· Subsection (6) requires trustees to retain the declaration made under
this section, or a certified copy of it, with the trust records.
· Subsection (7) states that trustees are not required to make a
declaration under this section. If they do make a declaration under this
section they are not in breach of a duty.
· A new section 110 is inserted containing a new provision which:
(1) defines a prescribed power as being either an express power that is
contained in the trust instrument of a prescribed trust, section 108, or a
power granted by section 109 where there is no express power in the
trust instrument.
Subsections (2) and (3) provide that the prescribed power is to be
taken as being for charitable purposes. The existence of a prescribed
power or the exercise of a prescribed power does not affect the
charitable status of the prescribed trust and the exercising of a
prescribed power is to be taken as being for charitable purposes. This
extends to when the control of a prescribed trust is by the court in the
exercise of the court's general jurisdiction in relation to charitable
trusts.
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Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008
Clause 85 amends the heading for part 11.
Clause 86 inserts the new part 12 which--
· specifies the commencement day as being the date of assent.
· applies the Act to all prescribed trusts, whether they were created
before the date of assent or on or after the date of assent.
· contains a retrospective provision. This provision ensures that any
donations made to eligible recipients as defined under section 107
prior to the commencement day do not put the trustees of the donating
trust in breach of their trust instrument and will not affect the
charitable status of the trust.
Any prescribed power included in the trust instrument prior to
commencement day is also to be considered to have been validly included
and to not affect the charitable status of the trust.
© State of Queensland 2008
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