The Australian Law Reform Commission

[Global AustLII Search] [ALRC Database Search] [ALRC Home] [Next] [Download] [Help]

CONFISCATION THAT COUNTS : A review of the Proceeds of Crime Act 1987

Report No 87

This Report reflects the law as at 31 March 1999

---

Table of Contents

• Terms of reference
  • Proceeds of crime
  • Proceeds of crime -- alteration of terms of reference

• Abbreviations

• Part A: Scope and principles
• 1. Introduction
  • Commissioning of the review
  • Why is a review needed?
  • Identification of issues
  • Truncated consultation
  • Outline summary of the report

• 2. Proceeds of Crime Act: development, scope and underlying principles
  • Background
  • History of proceeds laws in Australia
  • Related international developments
  • Outline of the POC Act
  • Underlying principles
  • Implications of the principles for review

• Part B: Major reform issues
• 3. Scope of judicial discretion -- confiscation and sentencing
  • Introduction
  • Discretionary forfeiture
  • Sentencing

• 4. Conviction and non-conviction based recovery
  • Introduction
  • Current conviction based regime
  • Perceived shortcomings of conviction based regime
  • Possible improvements to the existing conviction based regime
  • The case for non-conviction based confiscation

• 5. Restraining orders and their scope
  • Introduction
  • Restraining orders -- current statutory position
  • Adequacy of the current restraint regime
  • What the submissions say
  • Restraining order regimes in other Australian jurisdictions
  • A simplified and consolidated restraining order process
  • Integrated proceedings

• 6. Priorities
  • Introduction
  • What the POC Act says on the issue
  • What submissions say
  • Supplementary information
  • The Commission's view
  • Interface between Commonwealth law and State proceeds of crime legislation

• 7. Laundering of property and money
  • Introduction
  • Reforms proposed in submissions
  • Importing or exporting -- new parallel offences
  • Evidentiary aids
  • Sections 81 and 82 -- proposed transaction suspension order
  • Sections 81 and 82 -- residual difficulties

• 8. Time constraints
  • Introduction
  • Automatic forfeiture in cases of `deemed conviction'
  • Duration of restraining orders after initial period
  • Time for seeking a pecuniary penalty order

• 9. Jurisdiction
  • Introduction
  • Developments in State jurisdictions
  • What submissions say
  • The Commission's view

• 10. Administration of restrained assets
  • Introduction
  • What the submissions say
  • Ensuring that all appropriate assets are under control of Official Trustee
  • Dealing with property in cases where the cost of securing, protecting and maintaining an asset outweighs its realisable value
  • Destruction of property where the public interest or public safety so require
  • Requirement for owner of restrained property to provide the Official Trustee with his or her tax file number
  • Dealing with unsaleable assets
  • Recovery of costs of administration
  • Decision making in relation to the functioning of a business, and leasing of property

• 11. Uniformity
  • Introduction
  • Uniformity between Commonwealth, State and Territory laws
  • The Commission's view

• Part C: Other specific reform issues
• 12. Recognition of rights of third parties
  • Introduction
  • The legislative scheme: POC Act
  • Statutory forfeiture
  • Judicially ordered forfeiture
  • Customs Act 1901, Part XIII, Division 3
  • The submissions
  • Recognising interests subject to encumbrances in favour of third parties
  • Fashioning an appropriate test for third party relief
  • Forfeiture of joint interest
  • Costs incurred by third parties in establishing entitlement to their interests in restrained or forfeited property
  • Availability of third party protections and relief to non-natural persons

• 13. Scope of property capable of being restrained or forfeited
  • Introduction
  • `Effective control'
  • Gifts
  • Tainted property and proceeds of crime

• 14. Forfeiture versus reparation or compensation
  • Introduction
  • The relationship between forfeiture and compensation or reparation
  • The unique position of GBEs
  • The Victorian position
  • The submissions
  • The Commission's view

• 15. Restrained assets and legal expenses
  • Introduction
  • Whether current scheme offends the underlying principles
  • Criticisms of the operation of section 43 and some suggested reform options
  • Appropriateness of courts as determinants of eligibility and quantum
  • Absence of criteria for determining fees
  • Absence of criteria for determining nature and length of proceedings
  • Absence of any monitoring mechanism
  • Finding a solution -- the Commission's view

• 16. Administrative (in rem) forfeiture
  • Introduction
  • In rem forfeiture under the Customs Act
  • The case against in rem forfeiture
  • The case for in rem forfeiture
  • The case law
  • The Commission's view

• 17. Non conviction based forfeiture; Customs Act, Part XIII, Division 3
  • Background
  • Adequacy of the provisions
  • Integration into the Proceeds of Crime Act 1987
  • The Commission's view

• 18. Literary proceeds
  • Background
  • Developments in Australia
  • The submissions
  • Consideration of issues
  • The nature and scope of a `literary proceeds' regime

• 19. Law enforcement information gathering powers
  • Introduction
  • Search warrants -- sections 36 and 71
  • Production orders and monitoring orders
  • Repealed sections 79 and 80

• 20. Superannuation benefits
  • Introduction
  • Crimes (Superannuation Benefits) Act 1989
  • Australian Federal Police Act 1979 -- Part VA
  • The Queensland provisions
  • The submissions
  • Discretion as to the seeking of the order and the quantum thereof
  • Issues relating to differences between the AFP and Crimes (Super) Act regimes
  • Remaining issues

• 21. Impact of the law on business
  • Additional terms of reference
  • Background
  • Identification of provisions affected by legislation review
  • Impact on competition
  • Costs to business, including compliance costs and paper burden on small businesses

• 22. Operational adequacy
  • Introduction
  • Responsibility for commencing non-conviction based proceedings
  • Ensuring optimal operational efficiency
  • Table A
  • Table B

• Appendix A
  Participants
  • The Commission
  • Officers
  • Consultants

• Appendix B
  List of submissions

• Appendix C
  List of recommendations
  • 2. Proceeds of Crime Act: development, scope and underlying principles
  • 3. Scope of judicial discretion -- confiscation and sentencing
  • 4. Conviction and non-conviction based recovery
  • 5. Restraining orders and their scope
  • 6. Priorities
  • 7. Laundering of property and money
  • 8. Time constraints
  • 9. Jurisdiction
  • 10. Administration of restrained assets
  • 11. Uniformity
  • 12. Recognition of rights of third parties
  • 13. Scope of property capable of being restrained or forfeited
  • 14. Forfeiture versus reparation or compensation
  • 15. Restrained assets and legal expenses
  • 16. Administrative (in rem) forfeiture
  • 17. Non conviction based forfeiture; Customs Act, PartXIII, Division 3
  • 18. Literary proceeds
  • 19. Law enforcement information gathering powers
  • 20. Superannuation benefits
  • 21. Impact of the law on business
  • 22. Operational adequacy

• Select bibliography

• Table of legislation

• Table of cases

^© Commonwealth of Australia 1999

This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without written permission. Inquiries should be directed to the Manager, Commonwealth Information Services, Australian Government Publishing Service, GPO Box 84, Canberra ACT 2601.

ISBN 0 642 47632 2

Commission Reference: ALRC 87

The Australian Law Reform Commission was established by the Law Reform Commission Act 1973 and reconstituted by the Australian Law Reform Commission Act 1996. It started operation in 1975. The main office of the Commission is at Level10, 131 York Street, Sydney, NSW, 2000, Australia.

Telephone: within Australia (02) 9284 6333

International + 61 2 9284 6333

TTY: (02) 9284 6379

Facsimile: within Australia (02) 9284 6363

International + 61 2 9284 6363

E-mail: info@alrc.gov.au

ALRC homepage: http://www.alrc.gov.au

Printed by Alken Press Pty Ltd

Queries and Comments welcome at ALRC

Contact AustLII