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House of Representatives

Proceeds of Crime (Consequential Amendments and Transitional Provisions) Bill 2002

Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs Senator the Honourable Chris Ellison)

General Outline

This Bill supplements the provisions of the Proceeds of Crime Bill 2002 by providing transitional provisions and making consequential amendments to other Commonwealth legislation. The Bill repeals the existing money laundering offences in the Proceeds of Crime Act 1987 and replaces them with new provisions in the Criminal Code which are graded both in terms of the mental element required to be established and the value of the property the subject of the dealing which constitutes money laundering.

The Mutual Assistance in Criminal Matters Act is also amended not only to reflect the provisions of the new proceeds regime but also to move many of the provisions which relate to foreign orders and offences from the Proceeds of Crime Act 1987 into that Act. These provisions will also enable the enforcement of civil forfeiture related orders in relation to prescribed countries. It is envisaged that only those countries would be proscribed which provide reciprocity and where there is confidence that the confiscation regime is fair, adequately supervised by an independent judiciary and provides adequate safeguards for innocent third parties.

The Financial Transaction Reports Act 1988 is amended to include the record retention provisions previously included in the Proceeds of Crime Act 1987.

The Bankruptcy and Family Law Acts are amended to clarify the relationship between proceedings under those Acts and proceedings under the Proceeds of Crime Bill 2002.

Consistent with the recommendations of the Australian Law Reform Commission proceeds of crime proceedings will normally take precedence over those other proceedings.

The Taxation Administration Act is amended to expand access by authorised law enforcement agencies to taxation information for the purpose of civil forfeiture investigations and proceedings. The Telecommunications (Interception) Act 1979 is amended to enable the NCA to pass information gained through telephone interception to the Commonwealth DPP and state and territory equivalents in conviction-based proceeds of crime proceedings.

The Administrative Decisions (Judicial Review) Act 1977 is amended to ensure that decisions by the DPP and an approved examiner relating to the conduct of a compulsory examination under the Proceeds of Crime Act are not subject to that Act. The AFP Act is amended to specifically confer powers under the Proceeds of Crime legislation on the AFP.

The amendments to other legislation are purely consequential.

Schedule 7 to the Bill contains the transitional provisions for the phasing out of the confiscation regime in the Proceeds of Crime Act 1987. Generally speaking after the commencement of the new legislation the existing information gathering powers can only be used to execute existing warrants or orders. All orders and warrants are to be sought under the new provisions and information already obtained under the 1987 Act is to be treated as if it were obtained under the new regime. In relation to confiscation action if no restraining order exists at the time of commencement all orders must be sought under the new legislation. Where a restraining order exists all action and enforcement continues under the 1987 Act.

Financial Impact

There is no financial impact flowing directly from the provisions of this Bill. However, as these provisions will render the confiscation regime more effective both in its international operation and in avoiding abuse of bankruptcy and family law proceedings to dissipate assets the impact should be to significantly increase Government revenue. There may be some effect on creditors and divorcing couples as proceeds of criminal activity can no longer be used to satisfy bankruptcy creditors or to support former spouses.

Abbreviations used in the Explanatory Memorandum

ACS Australian Customs Service
AFP Act Australian Federal Police Act 1979
AFP Australian Federal Police
ALRC Australian Law Reform Commission
ASIC Australian Securities and Investments Commission
Bankruptcy Act Bankruptcy Act 1966
CAA Confiscated Assets Account
CRF Consolidated Revenue Fund
Crimes Act Crimes Act 1914
Customs Act Customs Act 1901
DPP Director of Public Prosecutions (Commonwealth)
FL Act Family Law Act 1975
FTR Act Financial Transaction Reports Act 1988
FTRA Financial Transaction Reports Act 1988
IFO interstate forfeiture order
IRO interstate restraining order
IWCT Act International War Crimes Tribunals Act 1995
LAC legal aid commission
LPO literary proceeds order
MA Act Mutual Assistance in Criminal Matters Act 1987
NCA National Crime Authority
OT Official Trustee
PoC Act 1987 Proceeds of Crime Act 1987
PoC Bill 2002 Proceeds of Crime Bill 2002
PPO pecuniary penalty order
TI Act Telecommunications (Interception) Act 1979

NOTES ON CLAUSES

Clause 1 Short Title

This is a formal clause which provides for the citation of the Bill.

Clause 2 Commencement

This clause sets out when each provision in this Act commences, or is taken to have commenced.

Clauses 1 to 3 commence on the day on which the Bill receives Royal Assent.

The provisions relating to money laundering (Schedule 1); foreign proceeds of crime orders and requests by Australia for orders in foreign countries (Schedule 2); the retention of financial transaction documents (Schedule 3); and bankruptcy (Schedule 4) all commence on the day specified in a proclamation as the day on which sections 3 to 332 of the Proceeds of Crime Act 2002 commence.

Schedule 5 relates to property settlement and spousal maintenance proceedings. Items 1 to 9 of this schedule similarly commence on the day specified in a proclamation as the day on which sections 3 to 332 of the Proceeds of Crime Act 2002 commence. Item 10 of this schedule commences either on the above-mentioned day or immediately after the commencement of section 5 of the Family Law Legislation Amendment (Superannuation) Act 2001, whichever is the later.

Schedules 6 and 7, which covers all other amendments, also commence on the day on which sections 3 to 332 of the Proceeds of Crime Act 2002 commence.

Clause 3 Schedule(s)

This clause makes it clear that each Act which is specified in one of the Schedules to this Act is amended or repealed in accordance with the relevant provisions.

SCHEDULE 1 - MONEY LAUNDERING

Criminal Code Act 1995

Item 1 - Schedule . The offences in the Criminal Code Act 1995 are contained in a schedule. This item amends that schedule by adding new Part 10.2 and Division 400, both of which are headed 'Money Laundering' and contain new money laundering offences. These replace the money laundering offences in sections 81 and 82 of the Proceeds of Crime Act 1987. All very serious offences are placed in the Criminal Code for convenience. The Criminal Code contains the general principles by which offences are interpreted as well as other serious offences which in many cases will be relevant to the money laundering offences. The policy of placing the very serious offences together in this way is not only a feature of the Commonwealth Criminal Code but also the legislation of most jurisdictions throughout the world. It is also a feature of the Model Criminal Code which was developed by Commonwealth, State and Territory officers and by implication was favoured by the ALRC when it suggested it should be located in the old central criminal statute, the Crimes Act 1914 (recommendation 32). Most of the Criminal Code is based on the Model Criminal Code.

Proposed section 400.1 Definitions . The first definition that requires explanation is 'authorised deposit-taking institution' . It nominates financial institutions over which the Commonwealth has jurisdiction and ensures the offences apply to money laundering through such institutions. These are a body corporate involved in a banking type business, the Reserve Bank and State banks that have business extending beyond the limits of the particular State (paragraph 51(xiii) of the Constitution. The definition is identical to that in section 3 of the PoC Act 1987. 'Instrument of crime' introduces a new concept for the purposes of the money laundering offences which were previously only concerned with 'proceeds of crime.' Consistent with recommendation 22 of the ALRC report, the definition extends the coverage to money or property used in the commission of, or to facilitate the commission of, an indictable offence. However, it is not a new concept in the context of proceeds of crime legislation. A similar concept is used as part of the definition of 'tainted property' in section 4 of the PoC Act 1987 and in clause 338 of the PoC Bill. 'Proceeds of crime' is similar in effect to the definition in section 4 of the PoC Act 1987, so this aspect of the new money laundering offences remains much the same. It is restricted to the proceeds of indictable offences. 'Property' is defined in the same way as in section 4 of the PoC Act 1987 and clause 338 of the PoC Bill. It covers real and personal property whether in or outside Australia and interests in such property. In accordance with recommendation 27 of the ALRC report, proposed subsection 400.1(2) is included to make it clear it includes financial instruments, cards and other such items regardless of whether they have intrinsic value.

Proposed section 400.2 - Meaning of dealing with money or other property

Dealing with money or other property is a key element of the serious money laundering offences in proposed sections 400.3 to 400.8. This differs from the existing serious money laundering offence at section 81 of the PoC Act 1987 and extends the scope of the Commonwealth offences more closely to Constitutional limits. Section 81 was limited to transactions related to Commonwealth and certain Territory indictable offences, foreign offences or which involved bringing proceeds into Australia. Proposed subsection 400.2(1) covers exports as well as imports and other dealings, including banking transactions. This is in accord with recommendation 24 of the ALRC report. Under proposed subsection 400.2(2) the 'dealing' definition covers transactions related to State and Territory offences where it involves the import or export of goods, electronic communications, postal or telegraphic communications or a transaction in the course of banking (other than certain State banking). In accordance with recommendation 22 of the ALRC report it also extends the offences to cover 'instruments of crime'. Proposed subsection 400.2(3) makes it clear that ' banking transactions' include transactions involving a money order and that exports and imports of money or other property includes the transfer of money or property by an electronic communication. These definitions modernise the offences in line with contemporary methods of engaging in financial transactions. There are also definitions of ' Commonwealth indictable offence' and ' foreign indictable offence' which do not require further explanation.

Proposed section 400.3 - Dealings worth $1,000,000 or more

This is the most serious of 5 offences which prohibit the more significant types of money laundering. A criticism of the old offence in section 81 of the PoC Act 1987 was that for an offence carrying a maximum penalty of 20 years imprisonment it was far too broad. It could apply where the money or property was small in value and even where the defendant did not advert to the fact it was derived or realised from some form of illegal activity. It was only necessary for the prosecution to prove the defendant ought reasonably have known of these things.

Chapter 2 of the Criminal Code has a menu of general fault elements that provide a more appropriate basis for criminal liability which together with variations in penalty provide the opportunity to more severely penalise those who are more culpable and dealing in larger amounts. This also enables the legislature to be more precise in its signal to the courts about the level of penalty it considers to be appropriate for the particular conduct. While this means that there are more offences they provide a level of precision which is warranted given the consequences of being convicted of money laundering. The ALRC did not make recommendations in relation to the fault elements for the equivalent offence but at paragraph 7.18 of page 121 expressed strong support for the requirement that fault be proved by the prosecution for such a serious offence.

Proposed subsection 400.3(1) is the most serious offence. The maximum penalty is 25 years imprisonment (an increase of 5 years on the existing penalty) and/ or a fine of $165,000 for an individual or $825,000 for a body corporate. However, the offence applies to dealings in very large sums - proceeds of crime worth $1,000,000 or more and where the person believes the money or other property to be a proceed of crime or intends that it will become an instrument of crime.

If the person was reckless about the money or other property being a proceed or about the risk that it is an instrument of crime there is a lower maximum penalty. Applying section 5.4 of the Criminal Code which provides for the meaning of recklessness, this offence would occur where the person is, aware of a substantial risk that the money or property was, or would become, a proceed or an instrument of crime and having regard to the circumstances known to him or her it was unjustifiable to take that risk. Where this is the case the offence at proposed subsection 400.3(2) provides a maximum penalty of 12 years imprisonment and or a fine of $79,200 for an individual or $325,000 for a body corporate.

Finally, where the person was negligent about the money or other property being a proceed or instrument of crime the penalty prescribed is lower again. Applying section 5.5 of the Criminal Code which provides for the meaning of negligence, this offence would occur where the dealing involved such a great falling short of the standard of care that a reasonable person would exercise in the circumstances, and such a high risk that the dealing merits criminal punishment. Where this is the case the offence at proposed subsection 400.3(3) provides a maximum penaltyof5 years imprisonment and or a fine of $33,000 or $165,000 for an individual.

Proposed subsection 400.3(4) accords with the usual practice where the Criminal Code applies to an offence. Due to the strict requirements of the Criminal Code in relation to proof of fault in relation to all elements of offences, it is necessary to state that it is not necessary for the prosecution to prove that the defendant knew, or was aware of, the value of the dealing for him or her to be convicted of these offences. This is achieved by providing that absolute liability applies to that element of the offence. This is consistent with other offences that have been enacted in recent years. It has been accepted that it is not necessary to prove an element that does not impact on culpability and in some circumstances would be difficult to establish. However, in this case it is considered appropriate that special rules should operate to reduce the penalty where the defendant has made a mistake of fact about the value. This is dealt with in more detail in the notes on proposed section 400.10.

These offences cover the conduct and culpability covered by the offence in section 81 of the PoC Act, but provides for much more appropriate penalties.

Proposed sections 400.4 to 400.8 - Lesser dealings

These provisions provide for offences follow the same pattern as proposed section 400.3.

Where the dealings involve money or property with a value of $100,000 or more the maximum penalty is 20 years imprisonment and or a fine ($132,000:individual; $660,000:body corporate) if the dealing was intentional, 10 years ($66,000:individual; $330,000:body corporate) if there was recklessness; and 4 years ($26,400:individual; $132,000:body corporate) if it was negligent (proposed section 400.4).

Where the dealings involve property or money with a value of $50,000 or more the maximum penalty is 15 years and or a fine ($99,000:individual;$495,000:body corporate) if they were intentional, 7 years ($46,200:individual; $231,000:body corporate) if there was recklessness; and 3 years ($19,800:individual; $99,000:body corporate) if it was negligent (proposed section 400.5).

Where the dealings involve property or money with a value of $10,000 or more the maximum penalty is 10 years and or a fine ($66,000:individual; $330,000:body corporate) if they were intentional, 5 years ($33,000:individual; $165,000:body corporate) if there was recklessness; and 2 years ($13,200:individual; $66,000:body corporate) if it was negligent (proposed section 400.6).

Where the dealings involve $1,000 or more the maximum penalty is 5 years and or a fine ($33,000:individual; $165,000:body corporate) if they were intentional, 2 years ($13,200:individual; $66,000:body corporate) if there was recklessness; and 12 months ($6,600:individual; $33,000:body corporate) if it was negligent (proposed section 400.7).

Finally there is a basic offence with a maximum penalty of 12 months and or a fine ($6,600:individual; $33,000:body corporate) if the dealing is intentional, 6 months ($3,300:individual; $16,500:body corporate) if there was recklessness; and a $1,100 fine if it was negligent (proposed section 400.8).

This approach provides the courts with very specific guidance about sentencing of money launderers. It is intended to result in offenders who are more culpable and have dealt in larger amounts receiving more severe sentences.

Proposed sections 400.9 - Possession, etc of property reasonably suspected of being proceeds of crime

This inserts a lesser money laundering offence based on existing section 82 of the PoC Act 1987. Like section 82 the proposed offence applies to those who receive, possess, conceal or dispose of, or bring into Australia any money or other property that may reasonably be suspected of being proceeds of Commonwealth or foreign crimes. However, the proposed offence also covers taking money outside Australia ('exports' as well as 'imports') and the proceeds of State and Territory offences where they involve the import or export of goods, postal or telegraphic communications or a transaction in the course of banking (other than certain State banking). These changes are in accord with recommendations 25 and 26 of the ALRC report and are at subsections 400.9(1)(a)(ii) and (3) which mirror those proposed in relation to the more serious money laundering offences (proposed sections 400.3 to 400.8). The maximum imprisonment penalty remains the same at 2 years imprisonment. The fines of $5,500 (individuals) and $27,500 (corporations) have been increased to reflect those which would apply to similar offences.

Proposed subsection 400.9(2) takes a different approach to that in section 82. It specifies a range of activity which is taken to satisfy the reasonable suspicion element of the offence: structuring transactions to avoid reporting requirements, the use of false names for accounts, using grossly out of proportion valuations, contraventions of the Financial Transaction Reports Act 1988, and engaging in transactions on behalf of others but not being prepared to identify such persons or their location. This provides a more specific basis for liability than section 82 and follows the approach of recommendation 28 of the ALRC report. Note that subsection 400.9(4) contains a device where absolute liability is used to with respect to paragraph (1)(b) to facilitate reliance on the matters listed in proposed subsection 400.9(2). This reflects the transparency about fault required by Chapter 2 of the Criminal Code in relation to all offences.

At the same time proposed subsection 400.9(5) retains the defence contained in subsection 82(2) which applies where the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised from some form of unlawful activity. As with section 82, the defendant bears the legal burden of proof in relation to these matters. This is appropriate given the knowledge and information the defendant will have concerning the transaction, the difficulty law enforcement agencies are likely to have in obtaining such information and the relatively low penalty.

Proposed section 400.10 - Mistake of fact as the value of money or property

Proposed subsection 400.10(1) provides that where at the time of, or before, the dealing which constitutes one of the serious money laundering offences, the person considered the value of the money or property and was under a mistaken but reasonable belief about that value and, had that belief been correct, a lesser offence would have applied. The effect of the offences and this provision is that if a person had not bothered to consider the value and the actual value made the offence one in a higher offence category, then subsections 400.3(4), 400.4(4), 400.5(4), 400.6(4) and 400.7(4) which apply absolute liability to the value, will operate to make belief about the value something that the prosecution does not have to prove. The approach of applying mistake of fact as in proposed section 400.10 is consistent with the way the same principle operates in relation to strict liability (under section 9.2 of the Criminal Code) but is tailored to provide that the person is not to be completely absolved from liability. The aim is to ensure that where the person is less culpable about the element of the offence concerning the value of the dealing, then he or she should be subject to a lower maximum penalty. Proposed subsection 400.10(2) takes into account assessments of the value based on previous experience.

Proposed section 400.11 - Absolute liability - whether indictable offences

This simply ensures that the prosecution does not have to prove knowledge about whether the offences relevant to the money laundering are indictable. Knowledge about this element has nothing to do with the essence of the offence and would be very difficult to establish.

Proposed section 400.12 - Combining several contraventions in a single charge

In accordance with recommendation 31, for procedural convenience, this allows for the combination of charges in relation to the proposed offences. It also prevents the structuring of dealings with a view to manipulating the value based penalty scheme. The provision achieves this by allowing the total value to be taken into account when there are multiple dealings.

Proposed section 400.13 - Proof of other offences is not required

Money laundering is often linked to other offences, usually referred to as the 'predicate offence'. This provision makes it clear that it is not necessary to prove those other offences with particularity about the exact offence or the particular offender.

Proposed section 400.14 - Alternative verdicts

This is a standard provision used elsewhere in the Criminal Code to ensure that where the trier of fact concludes that the defendant is not guilty of say a more serious offence, but is guilty of a lesser offence, the trier may make that finding. This type of provision is used where there are groups of offences that have similar elements such as those in relation to money laundering. This means that if the trier considered the prosecution overestimated the value of the relevant property, and the actual value makes the charge no longer appropriate, it is open for the trier to convict the defendant of an appropriate offence with a lower penalty. This is an alternative verdict mechanism.

Proposed section 400.15 - Geographical jurisdiction

Category B extended geographical jurisdiction is appropriate for these offences because they often involve international dealings. Section 15.2 of the Criminal Code provides that offences categorised in this way can be committed not only wholly or partly in Australia, but also wholly outside Australia if the person who committed the offence is an Australian national or resident. This recognises that there is scope for money launderers based in Australia to try to avoid authorities in Australia by dealing in the money or other property off-shore.

Proposed section 400.16 - Saving of other laws

As with quite a number of other offences in the Criminal Code (for example, theft), there is some overlap of the proposed money laundering offences with State and Territory offences (particularly now that it is proposed that the scope of the money laundering offences be extended to cover dealings other than those involving Commonwealth and foreign offences). It is not intended that State and Territory authorities should be precluded by the Commonwealth offences from prosecuting similar offences under their law. However the normal rules of double jeopardy apply.

Proceeds of Crime Act 1987

Item 2 This item repeals the definition of 'proceeds of crime' from the PoC Act 1987.

Item 3 This item repeals the old money laundering offences (sections 81 and 82 of the PoC Act 1987). Differences between them and the new offences are explained in the notes on the new offences.

Telecommunications (Interception) Act 1979

Item 4 This item updates cross-references to ensure interception may be authorised to occur in relation to the more serious money laundering offences (proposed sections 400.3 to 400.8). As was the case previously in relation to the offence at section 82 of the PoC Act, interception is not available in relation to the lesser offence (proposed section 400.9). This is consistent with general policy that such powers should only be available for use in relation to serious offences.

SCHEDULE 2 - FOREIGN PROCEEDS OF CRIME ORDERS AND REQUESTS BY AUSTRALIA FOR ORDERS IN FOREIGN COUNTRIES

This Schedule amalgamates and co-locates provisions currently in the Proceeds of Crime Act 1987 and the Mutual Assistance Act in Criminal Matters 1987 which provide for the registration and enforcement of foreign restraining and confiscation orders in Australia in relation to the confiscation of assets located in Australia which are the proceeds of a foreign offence. The Mutual Assistance in Criminal Matters Act 1987 also enables authorised agencies, as the request of a foreign country and as authorised by the Attorney-General, to apply for and use production orders, monitoring orders and search warrants in relation to foreign serious offences where the it is reasonably suspected that the proceeds or instrument or property-tracking documents are located in Australia.

The provisions will be located in the Mutual Assistance in Criminal Matters Act 1987. This Schedule also widens the existing conviction-based scheme to enable foreign civil-based restraining and confiscation orders to be registered and enforced, and makes some procedural amendments to the existing regime.

Further, provisions in the PoC Act 1987 relating to the enforcement of forfeiture orders made under the International War Crimes Tribunals Act 1995 have been re-located into that Act.

International War Crimes Tribunals Act 1995

Item 1 Part 6 of the International War Crimes Tribunals Act 1995 ('IWCT Act') enables forfeiture orders of the International War Crimes Tribunal to be enforced in Australia. Once registered, the order currently takes effect as if made under the PoC Act 1987. This amendment will replace the reference to the 1987 Act, and enable the order to take effect as if made under the PoC Bill 2002.

Item 2 This item inserts a new subsection into section 46 of the IWCT Act, to take into account changes made to the proceeds of crime regime by clause 68 of the PoC Bill 2002. This item also amends the effect of clause 64 in relation to the IWCT Act.

Section 68 of the PoC Bill 2002, as amended by this item, provides an exception to the rule that property specified in a forfeiture order vests absolutely in the Commonwealth at the time the order is made. Under clause 68 as amended, property specified in a forfeiture order where a joint owner of the property died before the forfeiture order was made, but after the DPP applied for registration of the forfeiture order under section 45 of the IWCT Act, is taken to have vested in the Commonwealth immediately before the person's death. Any restraining order is also taken to have continued to apply to the property as if the person had not died.

The effect of this provision is that the property does not form part of the deceased's estate.

Item 3 This item repeals subsection 46(3) of the IWCT Act, and replaces it with provisions mirroring section 23 the PoC Act 1987 (in so far as it applies to the IWCT Act ). It also updates references to provisions in the PoC Act 1987 in existing subsection 46(3) with the corresponding provisions in PoC Bill 2002.

Item 4 This item inserts a new provision in the IWCT Act which mirrors section 23A of the PoC Act 1987. The provision enables third parties who were not involved in the commission of the offence to which the forfeiture order relates, to in specified circumstances either have their interest in the property transferred to them by the Commonwealth or to be recompensed for their interest in the forfeited property. To be successful, the property must not be the proceeds or instrument of the offence within the meaning of the PoC Bill 2002. Under that Act, property ceases to be proceeds if acquired by a person for value and without knowledge that it was proceeds of the offence (eg an innocent third party).

If the person was given notice or appeared at the forfeiture order hearing, he or she may only apply under proposed section 46A if given leave by the court. Applications should be made within six weeks of the forfeiture order being registered in the court; however, court may give leave to apply in certain circumstances.

Item 5 This item enables regulations which are already in force under the PoC Act 1987 to continue in force as if they were made under the IWCT Act until regulations are made under that Act.

Mutual Assistance in Criminal Matters Act 1987

Item 6 This item inserts a definition of 'account'.

Item 7 This item inserts a definition of 'agent'.

Item 8 'Ancillary offence' is currently defined in the MA Act by reference to the PoC Act 1987. This item repeals that definition, and inserts the PoC Act 1987 definition in full. As the PoC Act 1987 is to be repealed in the future, it is more appropriate that relevant definitions appear in the MA Act.

Item 9 This item amends paragraph (a) of the definition of 'Australian forfeiture order'. It repeals the reference to 'Proceeds of Crime Act' and replaces it with a reference to a 'proceeds of crime law'. A 'proceeds of crime law' is defined to include both the PoC Act 1987 and the PoC Bill 2002.

Item 10 This item inserts a new paragraph into the definition of 'Australian forfeiture orders', to take into account clause 95 of the PoC Bill 2002, which enables a court to make a declaration that property has been forfeited under Part 2-3 of that Act.

Item 11 This item amends paragraph (ab) of the definition of 'Australian forfeiture order'. It repeals the reference to 'Proceeds of Crime Act' and replaces it with a reference to the PoC Act 1987. This limits the application of that paragraph to the old Act.

Item 12 This item inserts the definition of 'literary proceeds order'.

Item 13 This item amends paragraph (a) of the definition of 'Australian pecuniary penalty order'. It repeals the reference to 'Proceeds of Crime Act' and replaces it with a reference to a 'proceeds of crime law'. A 'proceeds of crime law' is defined to include both the PoC Act 1987 and the PoC Bill 2002.

Item 14 This item repeals paragraph (a) of the definition of 'Australian restraining order', which referred to a restraining order within the meaning of the PoC Act 1987 (other than a restraining order made by virtue of section 59 of that Act), and replaces it with a reference to a 'proceeds of crime order' (other than a restraining order made by virtue of section 59 of that Act or 34K of the MA Act.

Item 15 This item inserts a definition of 'authorised officer'.

Item 16 This item inserts a definition of 'Confiscated Assets Account'.

Item 17 This item inserts a definition of 'enforcement agency'.

Item 18 this item inserts a definition of 'foreign confiscation proceedings'

Item 19 This item inserts a definition of 'foreign order'.

Item 20 This item repeals the definition of 'foreign organised fraud offence', which is no longer required as proposed section 34R is now closer to the definition of 'serious offence' in the PoC Bill 2002.

Item 21 This item inserts a definition of 'instrument'.

Item 22 This item inserts a definition of 'interest'.

Item 23 This item inserts a definition of 'narcotic substance'.

Item 24 This item inserts a definition of 'officer'.

Item 25 This item inserts a definition of 'Official Trustee'.

Item 26 This item repeals the definition of 'proceeds' and replaces it with a reference to the definition in the PoC Bill 2002.

Item 27 This item inserts a definition of 'proceeds jurisdiction'

Item 28 This item amends the definition of 'Proceeds of Crime Act' from the 1987 Act to the 2002 Bill.

Item 29 This item inserts the definition of 'proceeds of crime law', which is defined to include both the PoC Act 1987 and the PoC Bill 2002.

Item 30 This item inserts the definition of 'related foreign serious offence'.

Item 31 This item repeals the definition of 'serious narcotic offence', which is no longer required as proposed section 34R is now closer to the definition of 'serious offence' in the PoC Bill 2002.

Item 32 This item repeals the definition of 'tainted property'. This reflects the different way this term is used in the PoC Bill 2002 and the PoC Act 1987.

Item 33 This item amends paragraph 32(b) to enable Australia to request an appropriate authority of a foreign country to make arrangements for the enforcement of literary proceeds orders (which are new orders under the PoC Bill 2002).

Item 34 This item repeals paragraph 33(a), which enables Australia to obtain a warrant similar to a search warrant for tainted property under PoC Act 1987 in a foreign country. In conjunction with item 35, this reflects the amended search warrant regime in the PoC Bill 2002, which now has one set of search warrant provisions, enabling 'tainted property', property-tracking documents and evidential material to be searched for under the one warrant.

Item 35 This item repeals the phrase 'in respect of property-tracking documents' in paragraphs 33(c) and (d). As noted in the discussion of item 34, this item reflects the amended search warrant regime in the PoC Bill 2002.

Item 36 This item repeals Division 2 of Part VI of the MA Act, and inserts a new Division 2 - Requests by foreign countries

Subdivision A - Enforcement of foreign orders

This subdivision replaces the existing section 34 of the MA Act, which governs the registration of foreign proceeds of crime orders in Australia. It provides that once registration is effected, the relevant order may be enforced as if it were made by a court under the PoC Act 1987. The PoC Act 1987 in turn provides that when enforcing foreign restraining orders, forfeiture orders and PPOs registered in Australia, certain parts of the PoC Act 1987 do not applied or are applied in modified form.

This subdivision combines the provisions of the section 34 of the MA Act with relevant provisions of the PoC Act 1987 to simplify use of the legislation.

Proposed section 34 Requests for enforcement of foreign orders

Proposed subsection 34(1) replicates current subsection 34(1) of the MA Act, and enables the Attorney-General to authorise the DPP to apply for the registration of a foreign forfeiture order or a foreign PPO made in respect of a foreign serious offence. The Attorney-General can only authorise the application for registration where it is reasonably suspect that relevant property is located in Australia, and the Attorney-General is satisfied that a person has been convicted of the offence and there are no appeal proceedings on foot or able to be taken in relation to either the conviction or the forfeiture order.

Subsection 34(2) is a new provision, which enables the Attorney-General to authorise the DPP to apply for registration of a foreign civil based forfeiture or pecuniary penalty order. This reflects both the Commonwealth's move to a civil-forfeiture regime, and the growing trend worldwide.

The application of the provision is limited to where the foreign country is specified in the regulations. This will ensure that the Commonwealth is enforcing civil orders made on a similar basis to PoC Bill 2002.

Subsection 34(3) replicates subsection 34(2), and enables the Attorney-General to authorise the DPP to apply for the registration of a foreign restraining order in Australia. The Attorney-General may make such an authorisation in relation to both civil- and conviction-based restraining orders.

Subsection 34(4) performs the same function as subsection 34(3), and sets out which courts have jurisdictions to hear such application. The new provision reflects the jurisdictional provisions in the PoC Bill 2002.

Proposed section 34A Registration of foreign orders

Under existing provisions, subsection 34(4) of the MA Act applies subsection 23A(2) of the PoC Act 1987. Proposed subsections 34A(1) and (2) combine subsection 34(4) of the MA Act and subsection 23A(2) of PoC Act 1987, and slightly amends those provisions.

The effect of proposed subsections 34A(1) and (2) is that the DPP must give notice to people who may have an interest in the property with a power for the court to make directions if needed. This includes the persons the subject of the order (currently excluded by subsection 34A(2)). The application must be considered ex-parte if the DPP requests the court to do so (proposed subsection 34A(3)

Subsection 34A(4) replicates subsection 34(8) of the MA Act, and enables amendments to a registered foreign PPO or restraining order to also be registered. Amendments must be registered to have any effect under either the MA Act of PoC Bill 2002.

Proposed subsection 34A(5) replicates subsection 34(9) of the MA Act, and provides how an order or amendment to an order must be registered.

Proposed section 34B Enforcement of foreign forfeiture orders

Proposed subsection 34B(1) replicates subsection 34(5) of the MA Act, and provides that a registered foreign forfeiture order has effect as it was made by the court under the PoC Bill 2002 at the time of registration.

Proposed subsection 34B(2) is a new provision which takes into account changes made to the proceeds of crime regime by clause 64 of the PoC Bill 2002. This proposed subsection also amends the effect of clause 64 in relation to the MA Act.

Clause 64 of the PoC Bill 2002, as amended by this proposed subsection, provides an exception to the rule that property specified in a forfeiture order vests absolutely in the Commonwealth at the time the order is made. Under clause 64 as amended, property specified in a forfeiture order where a joint owner of the property died before the forfeiture order was made, but after the DPP applied for registration of the forfeiture order under the MA Act, is taken to have vested in the Commonwealth immediately before the person's death. Any restraining order is also taken to have continued to apply to the property as if the person had not died. The effect of this provision is that the property does not form part of the deceased's estate.

Proposed subsection 34B(3) reproduces subsection 23(2) of the PoC Act 1987, and enables the Attorney-General to give directions for the disposal of property the subject of a registered foreign forfeiture order. This proposed subsection is subject to the operation of the provisions in proposed subsection 34C regarding the property interests of innocent third parties.

Proposed subsection 34B(4) replicates subsection 23(1) of the PoC Act 1987 disapplies certain parts of the PoC Bill 2002 which do not have practical application to the enforcement of forfeiture orders under the MA Act.

Proposed section 34C Effect on third parties of registration of foreign forfeiture orders

This is largely based on section 23A of the PoC Act 1987, and enables third parties who were not involved in the commission of the offence to which the forfeiture order relates, to either have their interest in the property transferred to them by the Commonwealth or to be recompensed for their interest in the forfeited property. To be successful, the property must not be the proceeds or instrument of the offence within the meaning of the PoC Bill 2002. Under that Bill, property ceases to be proceeds if acquired by a person for value and without knowledge that it was proceeds of the offence (eg an innocent third party).

If the person was given notice or appeared at the forfeiture order hearing, he or she may only apply under section 46A if given leave by the court. Applications should be made within six weeks of the forfeiture order being registered in the court; however, court may give leave to apply in certain circumstances.

Proposed section 34C applies in relation to civil- and conviction-based orders alike.

Proposed section 34D Enforcement of foreign pecuniary penalty orders

Proposed subsection 34D(1) replicates section 34(6) of the MA Act, and provides a registered foreign PPO may be enforced as if it were made by the court under the PoC Bill 2002 at the time the order was registered. The proposed subsection also enables the foreign PPO to be enforced as if it was a debt due to the Commonwealth.

Proposed subsection 34D(2) is based on subsection 63(6) of the PoC Act 1987, and provides that where a PPO is registered in Australia, any subsequent payment made in relation to the PPO is taken to be made in relation to that PPO. This ensures that the PPO is only liable to be paid once, and that there are not two separate debts (eg one in Australia and one in the originating foreign country).

Proposed subsection 34D(3) disapplies Division 5 of Part 2-4 of the PoC Bill 2002 from applying to foreign PPOs. Division 5 deals with the effect on PPOs of relevant convictions being quashed - as a foreign PPO cannot be registered unless the conviction and order are not subject to any further appeal, Division 5 has no application.

Proposed section 34E Enforcement of foreign restraining orders

Proposed subsection 34E(1) replicates subsection 34(7) of the MA Act, and enables a restraining order to have effect and be enforced as if it were made by the court under the PoC Bill 2002 at the time the order was registered, and as if it were an order directing that property not be disposed of or otherwise dealt with.

Proposed subsection 34E(2) is the equivalent of paragraphs 60(b) - (e) of the PoC Act 1987. The proposed subsection amends the operation of specified parts of the PoC Bill 2002, to account for the fact that it is operating in relation to foreign, not domestic, orders.

Proposed subsection 34E(3) is the equivalent of paragraph 60(a) of the PoC Act 1987, and operates the exclude a number of provisions from applying when enforcing a foreign restraining order under PoC Bill 2002.

Proposed section 34F Faxed copies of foreign orders

This item is similar to subsection 34(10) of the MA Act, but has been altered to reflect the PoC Bill 2002, which provides that the original order must be filed in court within twenty-one days of the faxed copy being registered, without requiring that the original be registered.

Proposed section 34G Cancelling registration

Proposed section 34G reproduces subsections 34(11), (12) and (13) of the MA Act, and enables the Attorney-General to direct the DPP to cancel the registration of a foreign PPO or restraining order. This may occur where the order ceases to have effect in the foreign country, or the cancellation of the order is appropriate in light of arrangements between Australia and the foreign country, or any other circumstance. The Attorney-General's discretion to cancel the order is not fettered. Upon application by the DPP, the court must cancel the registration.

Proposed section 34H Certain provisions of the Proceeds of Crime Act not to apply

This item disapplies certain parts of the PoC Bill 2002, and replicates subsection 34(4) of the MA Act. Sections 317 and 318 and Part 4-2 of the PoC Bill 2002 relate to appeals against forfeiture orders, recovery of costs for an action and legal assistance.

Subdivision B - Restraining orders relating to foreign criminal proceedings.

This subdivision replaces the existing section 36 of the MA Act, which enables the Attorney-General to authorise the DPP to apply for a restraining order under the PoC Act 1987 in certain circumstances. The PoC Act 1987 in turn provides that when the DPP makes such an application, an interim restraining order may be issued. Subsection 59(1) of that Act specifies provisions relating to the making of restraining orders which do not apply or apply in modified form.

This subdivision combines the provisions of section 36 of the MA Act with relevant provisions of the PoC Act 1987 to simplify use of the legislation.

Proposed section 34J Requests for restraining orders

This item is based on section 36 of the MA Act, and enables the Attorney-General to authorise the DPP to apply for a restraining order covering property which is reasonably believed to be in Australia, and is or is about to be the subject of a foreign restraining order.

Proposed section 34 K Applying for and making restraining orders

This item is based on subsection 59(1) of the PoC Act 1987. Proposed subsections 34K(1) and (2) enable the DPP to apply for a restraining order under the PoC Bill 2002, and provide that Part 2-1 of that Act applies to both the application and any order.

Proposed subsection 34K(3) is the equivalent of paragraphs 59(1)(a) - (f) of the PoC Act 1987, and modifies the operation of Part 2-1 of the PoC Bill 2002.

Proposed section 34L Excluding property from restraining orders

This item is based on subsection 59(2) of PoC Act 1987, and enables restrained property to be recovered in certain circumstances.

The proposed section enables a third party who was not involved in the commission of the offence to which the forfeiture order relates, to have his or her interest in the property excluded from the restraining order. To be successful, the property must not be the proceeds or instrument of the offence within the meaning of the PoC Bill 2002. Under that Act, property ceases to be proceeds if acquired by a person for value and without knowledge that it was proceeds of the offence (eg an innocent third party).

The proposed section also enables a property to be excluded if the restraint of the property would cause financial hardship or it is otherwise in the public interest to do so, regardless of whether the applicant for the exclusion order is the subject of the order or a third party.

Proposed section 34M Cessation of restraining orders

This item is based on subsections 59(3), (4) and (5) of the PoC Act 1987. It provides that a restraining order made under Subdivision B ceases to have effect 30 days after it is made, or at a later time if so ordered by the court.

If a restraining order under Subdivision A is granted within either the 30 days or the extended timeframe, the restraining order ceases at that point.

Subdivision C - Production orders relating to foreign serious offences

This subdivision replaces existing provisions in section 37 of the MA Act and subsection 69(1) of the PoC Act 1987 which enables the Attorney-General to authorise a police officer to apply for a production order under the PoC Act 1987 in certain circumstances. Subsection 69(1) of the PoC Act 1987 in turn provides that when a police officer is authorised under the MA Act to apply for a production order, such an order may be made under that Act. The proposed subsection also specifies provisions relating to the making of production orders which do not apply, or apply in a modified form.

This subdivision combines the relevant provisions of subsection 37(1) of the MA Act with relevant provisions of the PoC Act 1987 to simplify use of the legislation.

Proposed section 34N Requests for production orders

Upon the request of a foreign country, proposed subsection 34N enables the Attorney-General to authorise an authorised officer to apply for a production order under the PoC Bill 2002 to obtain property-tracking documents relating to criminal proceedings in the requesting foreign country. An authorised officer may be a member of the AFP, NCA or ASIC, or an officer of Customs, authorised by the appropriate agency head.

The production order must be sought in the State or Territory in which the property-tracking documents are reasonably believed to be located.

Proposed subsection 34N is based on subsections 37(1) and (2) of the MA Act, in so far as they relate to production orders.

Proposed section 34P Applying for and making production orders

Proposed subsections 34P(1) and (2) are based on subsection 69(1) of the PoC Act 1987, and enable an authorised officer to seek a production order under the PoC Bill 2002, and that Part 3-2 of that Act is to apply to both the application and any subsequent order.

Proposed subsection 34P(3) is based on paragraphs 69(1)(a) and (b) of the PoC Act 1987. The proposed subsection disapplies certain provisions in Part 3-2 for the purposes of a production order made on request of a foreign country, and amends the application of certain other provisions in Part 3-2.

Proposed section 34Q Retaining produced documents

This proposed subsection provides that an authorised officer may retain a property-tracking document obtained as a result of a production order until the Attorney-General provides written directions on how to deal with the document. It is clear from this provision that such a direction may include forwarding that document to the foreign country which requested the production order.

This provision is based on subsection 69(2) of the PoC Act 1987.

Subdivision D - Notices to financial institutions

This is a new form of investigative power included in the PoC Bill 2002. Its exercise allows an investigator to make a decision on whether to seek a warrant or production order, or for the purpose of proceedings under the Act. One of the reasons for the Notice is for AFP or NCA investigators to discover if a person holds an account with the particular institution: that is, there is a known suspect, but the location of their funds is not known. The provisions are based on Recommendation 76 of the 1999 ALRC Report Confiscation that counts: A review of the Proceeds of Crime Act 1987.

This subdivision enables notices to financial institutions to be used in relation to proceedings or possible proceedings under Division 2 of Part VI of the MA Act.

Proposed section 34R Giving notices to financial institutions

Proposed section 34R sets out the procedure that must be followed where the Attorney-General or a senior Departmental officer gives a notice to a financial institution requiring the production of information or documents relevant to certain matters.

Under proposed subsection 206(1), a specified officer may give a written notice to a financial institution requiring the production of any information or documents relevant to certain account and transaction information. The notice must not be issued unless the officer reasonably believes that giving the notice is required to determine whether to take action under Division 2 of Part VI of the MA Act or the PoC Bill 2002 in connection with proceedings under that Division, or in relation to proceedings under that Division or the PoC Bill 2002.

Proposed section 34S Contents of notices to financial institutions

Proposed section 34S sets out what a notice must contain. First, it must state that the officer giving the notice believes that giving the notice is required to determine whether to take action under Division 2 of Part VI of the MA Act or the PoC Bill 2002 in connection with proceedings under that Division, or in relation to proceedings under that Division or the PoC Bill 2002. It must also specify the name of the financial institution, the kind of information or documents required to be provided, and the form and manner in which that information or those documents are to be provided. Further, it must also state that the information or documents must be provided within 14 days of the notice.

If the notice specifies that information about the notice must not be disclosed, it must also set out the effect of the offences in proposed sections 34V (disclosing existence or nature of a notice) and 34W (failing to comply with a notice).

Proposed section 34T Protection from suits etc. for those complying with notices

Proposed section 34T provides that a financial institution or one of its officers, employees or agents are protected from any action, suit or proceeding in relation to any action taken by the institution or person in relation to its or their response to a notice under proposed section 34R, or in the mistaken belief that action was required under the notice. The same parties are also protected from prosecution for money laundering offences in respect of the information provided in response to a notice under proposed section 34R.

Proposed section 34U Making false statements in applications

This proposed section creates the offence of providing a false or misleading statement in relation to an application for a notice to a financial institution. The offence applies whether the statement is given orally or in a document or other form. The maximum penalty which can be imposed in relation to this offence is 12 months imprisonment, a fine of 60 penalty units, or both.

Proposed section 34V Disclosing existence or nature of notice

Proposed section 34V makes it an offence for a person given a notice under proposed section 34R to disclose the existence or nature of the notice where the notice specifies that information about the notice must not be disclosed. The maximum penalty which can be imposed in relation to this offence is 2 years' imprisonment, a fine of 120 penalty units, or both.

Proposed section 34W Failing to comply with a notice

Proposed subsection 34W(1) provides that it is an offence for a person to fail to comply with a notice given under proposed section 206. The maximum penalty which can be imposed in relation to this offence is 6 months' imprisonment, a fine of 30 penalty units, or both.

Subdivision E - Monitoring orders relating to foreign serious offences

This subdivision replaces existing provisions in subsection 37(2) of the MA Act and section 75 of the PoC Act 1987 which enable the Attorney-General to authorise a police officer to apply for a monitoring order under the PoC Act 1987 in certain circumstances. Subsection 75(1) of the PoC Act 1987 in turn provides that when a police officer is authorised under the MA Act to apply for a monitoring order, such an order may be made under that Act. The subsection also specifies provisions relating to the making of monitoring orders which do not apply, or apply in a modified form.

This subdivision combines the relevant provisions of subsection 37(2) of the MA Act with relevant provisions of the PoC Act 1987 to simplify use of the legislation.

Proposed section 34X Requests for monitoring orders

Proposed subsection 34X(1) enables a monitoring order to be applied for by an authorised officer for the purpose of obtaining information about account transactions in Australia which is reasonably believed to be relevant to a proceeding or investigation relating to a serious offence in a foreign country. An order may only be sought if the foreign country requests it, and the Attorney-General authorises the authorised officer to so apply. This provision is based on subsection 37(3) of the MA Act.

Proposed subsection 34X(2) defines the foreign serious offences in relation to which a monitoring order may be authorised under proposed subsection 34X(1). The offences are closely aligned with those defines as 'serious offences' in the PoC Bill 2002, and include offences punishable by 3 or more years imprisonment where the unlawful conduct involves drugs (ie drug trafficking), the benefit (or intended benefit) to a person of at least $10,000 or loss or intended loss to the foreign country of the same amount. Offences relating to money laundering, people smuggling and failure to report financial transactions are also included.

Proposed subsection 34X(3) specifies that an order must be sought in a court able to hear matters on indictment - ie an intermediate or Supreme Court. This provision is similar to subsection 37(4) of the MA Act.

Proposed section 34Y Applying for and making monitoring orders

Proposed subsections 34Y(1) and (2) are based on subsection 75(1) of the PoC Act 1987, and enable an authorised officer to seek a monitoring order under the PoC Bill 2002, and that Part 3-4 of that Act is to apply to both the application and any subsequent order.

Proposed subsection 34Y(3) amends the application of certain provisions in Part 3-4 for the purposes of a monitoring order made on request of a foreign country.

Proposed section 34Z Passing on information given under monitoring orders

This proposed section provides that information gained under a monitoring order must be passed to the Attorney-General or a specified officer of the Attorney-General's Department as soon as practicable after the enforcement agency receives the information.

Subdivision F - Search warrants relating to foreign serious offences

This subdivision combines the two search warrant regimes which existed under section 35 and subsection 37(1) of the MA Act - namely, the regimes relating to 'tainted property' (proceeds and instruments of an offence) and property-tracking documents respectively. Those provisions reflected the two different sets of search warrant provisions in Parts III and IV the PoC Act 1987, which are now combined in Part 3-5 of the PoC Bill 2002.

It also incorporates relevant parts of the PoC Act 1987 which govern how the provisions of the PoC Act 1987 apply to such applications.

Proposed section 34ZA Requests for search warrants

Proposed subsection 34ZA(1) enables a search warrant to be applied for by an authorised officer for the purpose of obtaining proceeds or an instrument of an offence, or a property-tracking document in Australia which is relevant to a proceeding or investigation relating to a serious offence in a foreign country and os reasonably believed to be located in Australia. An order may only be sought if the foreign country requests it, and the Attorney-General authorises the authorised officer to so apply. This provision is based on section 35 and subsection 37(1) of the MA Act.

Proposed subsection 34ZA(2) specifies in which State or Territory a warrant may be sought.

Proposed section 34ZB Applying for and issuing search warrants

Proposed subsections 34ZB(1) and (2) are based on subsections 42(1) and 72(1) of the PoC Act 1987, and enable an authorised officer to seek a search warrant under the PoC Bill 2002, and that Part 3-5 of that Act is to apply to both the application and any subsequent order.

Proposed subsection 34ZB(3) is based on paragraphs 42(1)(b) and (c) and paragraph 72(c) of the PoC Act 1987. The proposed subsection disapplies provisions in Part 3-5 which provide for an incidental power of seizure and provides for the retention and return of seized property. Those provisions are set out in sections 34W and 34X of the MA Act. Proposed subsection 34ZB(3) also amends the application of certain other provisions in Part 3-5.

Proposed section 34ZC Seizure of other property and documents

This proposed section authorises the incidental seizure of other things when executing a search warrant, where it is believed that seizure is necessary to prevent the thing's destruction, loss or concealment, or its use in an offence.

Specifically, the provision enables the seizure of a thing reasonably believed to be a property-tracking document, the proceeds or an instrument of the offence to which the warrant relates but which is not of the kind specified in the warrant. If there is another search warrant in force under Part 3-5 of the PoC Bill 2002 in relation to a serous offence, a thing reasonably believed to be a property-tracking document related to that offence and an instrument or proceeds of the offence may also be seized. In addition, if the authorised officer finds something he or she reasonably believes to be relevant to the criminal proceedings in respect of the foreign serious offence, or will afford evidence in relation to an Australian offence, that thing may be seized.

Proposed section 34ZD Return of seized property to third parties

This proposed section provides for property (other than property-tracking documents) that is seized under a search warrant to be returned to a person who claims an interest in that property.

The person must apply to the court which issued the search warrant. To order the return of the property the court must be satisfied that the applicant is entitled to the return of the property, that the property is be neither the proceeds nor instrument of the relevant foreign serious offence, and that the person suspected of committing the relevant offence has not interest in the property.

However, if the property was seized because it may afford evidence of an Australian offence, the person cannot apply under this proposed section to get the property back.

This proposed section is based on subsections 42(3), (4) and (9) of the PoC Act 1987.

Proposed section 34ZE Dealing with seized property (other than property-tracking documents)

This proposed section provides how property seized under a warrant issued in relation to a foreign serious offence and which is not evidence of an Australian offence or a property-tracking document must be dealt with.

Proposed subsection 34ZE(2) establishes the general rule that seized property must be returned if a foreign restraining order or a foreign forfeiture order has not been registered in an Australian court within 30 days of the seizure, and a restraining order has not been made under PoC Bill 2002 in relation to the foreign serious offence.

If a foreign restraining order is registered or a restraining order made within the 30 day period, the head of the agency whose officer seized the property must ensure that the property is given to the OT in accordance with a direction of the court that the OT take custody and control of the property. If the court has made no such direction, but has ordered under proposed subsection 34ZE(6) that the head of the relevant agency may retain the property, that person must retain the property in accordance with the restraining order (see proposed subsection 34ZE(3)).

Where property is given to the OT under 34ZE(3), the PoC Bill 2002 applies to that property as if it were 'controlled property'. 'Controlled property' is defined in the PoC Bill 2002 as property in relation to which the OT must exercise the powers, and perform the duties, conferred or imposed on it, in relation to property of which a court has ordered the OT to take custody and control.

Proposed subsections 34ZE(5) and (6) provide that where a foreign restraining order has been registered in an Australian court or a restraining order has been made under PoC Bill 2002 in relation to the foreign serious offence, the head of the relevant enforcement agency may apply to the court to retain the property. The court may grant such an order is satisfied that retention of the property is necessary for it to be dealt with in accordance with the relevant restraining order. The order may be for so long as the property is required to be retained.

Proposed subsection 34ZE(7) requires the head of the relevant agency to deal with seized property still in his or her possession when a foreign forfeiture order is registered in Australia in accordance with the terms of that order.

The provisions of proposed section 34ZE are based on subsections 45(5) to (8) of the PoC Act 1987.

Proposed section 34ZF Dealing with seized property-tracking documents

This proposed section provides that an authorised officer may retain a property-tracking document obtained as a result of a search warrant for a period up to one month, pending the Attorney-General providing written directions on how to deal with the document. It is clear from this provision that such a direction may include forwarding that document to the foreign country which requested the search warrant.

This proposed section is based on subsection 72(3) of the PoC Act 1987.

Division 3 - Provisions relating to registered foreign restraining orders

This Division enables property the subject of a registered foreign restraining order to be put in the custody and control of the OT, in the same way that property the subject of a domestic restraining order may be.

Proposed section 35 Court may order Official Trustee to take custody and control of property

This amendment enables a court to order the Official Trustee (OT) to take custody and control of restrained property where the DPP applies for the order, and the court considers it necessary to do so. For example, the court may order this if there is a risk that the property would otherwise be dealt with contrary to the restraining order; alternatively, the property may require the OT to manage it to ensure it does not lose value.

This is similar to clause 38 of the PoC Bill 2002, and is based on subsection 61(1) of the PoC Act 1987.

Proposed section 35A Procedural matters

Proposed section 35A sets out that the DPP must give notice of an application for an order for the OT to take custody and control of restrained property to the owner of, or any other person the DPP believes has an interest in, the property. The court may also direct the DPP to publish notice of the application.

A person with an interest in the property has a right to appear and adduce evidence at the hearing.

This provision is based on subsections 61(2)-(4) of the PoC Act 1987.

Proposed section 35B Ancillary orders

This provision enables a court to make ancillary orders with respect to the OT having custody and control of restrained property. Such an order may regulate the way in which the OT performs its functions or powers, determines questions relating to the property (such as the liabilities of the owner of the property in the custody and control of the OT) or direct a person to do give a statement specifying the particulars of the property to the OT.

Proposed section 35C Dealing with restrained property

Proposed subsection 35C(1) applies Division 3 of 4-1 of the PoC Bill 2002 to property as if it were controlled property. That division regulates dealings with or which relate to controlled property.

Proposed subsection 35C(2) provides that before the OT exercises a power under clause 278 of the PoC Bill 2002, the OT must consult with the relevant foreign country. Clause 278 is a new provision, which grants the OT power to destroy or dispose of controlled property. The OT may destroy controlled property if it is in the public interest to do so or if it is required for the health or safety of the public.

The proposed subsection also grants the OT power to dispose of controlled property, by any means, if the circumstances described in any of paragraphs 266(2)(a) to (c) of the Bill exist. Paragraphs 266(2)(a) to (c) concern agreement between all entitled parties to the disposal, the likelihood of the property losing value in the OT's opinion, and the OT's opinion that the cost of controlling the property until final resolution will exceed, or represent a significant proportion of, the value of the property when it is finally dealt with.

Proposed section 35D Money not to be paid into the Common Investment Fund

Proposed subsection 35D provides that money that is in the control of the OT due to a foreign restraining order must not be paid into the Common Investment Fund under the Bankruptcy Act 1966, despite anything in that Act. This is similar to clause 287 of the PoC Bill 2002, and is based on subsection 61(7) of the PoC Act 1987.

Proposed section 35E Undertakings

This provision enables an affected person to apply to the court for the DPP to give or carry out an undertaking for damages or costs relating to the registration, making or operation of the relevant restraining order.

The provision reflects section 62 of the PoC Act 1987, and is similar in effect to clause 21 of the PoC Bill 2002.

Proposed section 35F Order to discharge certain registered foreign pecuniary penalty orders

Where a registered foreign PPO is made and there is a related registered foreign restraining order, the court in which the PPO is registered may order the OT to pay the Commonwealth an amount equal to the PPO.

Proposed subsection 35F(3) enables the court to order the OT to sell or dispose of the restrained assets to meet the order under proposed subsection 35F(1). The court may also appoint a person to execute a deed or instrument in the name of the person who has an interest in the property. Proposed subsection 35F(4) confirms that the execution by a person appointed by the court is valid as it the owner of the interest has themself executed the deed.

Proposed section 35F is based on subsections 63(1)-(3) of the PoC Act 1987, and has been amended to enable the OT to carry out the functions in respect of civil-based PPOs and restraining orders.

Proposed section 35G Official Trustee to carry out orders

Proposed subsection 35G provides how the OT is to carry out an order under proposed section 35F. If the OT is given a direction under proposed subsection 35F(1) in relation to property that is money, the OT must as soon as practicable apply the money in payment of the costs, charges, expenses and remuneration of the OT (as set out in clause 288 of the PoC Bill 2002) which were incurred or payable in connection with the restraining order

If the order under proposed subsection 35F(1) relates to property that is not money, the OT must sell or otherwise dispose of that property, and as soon as practicable apply the proceeds of sale in payment of the costs, charges, expenses and remuneration of the OT (as set out in clause 288 of the PoC Bill 2002) which were incurred or payable in connection with the restraining order. Those costs may include those incurred in disposing of the property.

The OT must pay the remainder of the money or proceeds received from the sale or disposition of property to the Confiscated Assets Account.

Proposed subsection 35G(3) provides that if the remainder of the money and proceeds received from the sale or disposition of property exceeds the penalty amount, the OT must pay an amount equal to the penalty amount to the Confiscated Assets Account, and pay the balance to the person whose property was subject to the restraining order.

This provision is based on paragraphs 63(4)(a) and (b), and subsection 63(5) of the PoC Act 1987. There is a similar provision in clause 284 of the PoC Bill 2002.

Proposed section 35H Discharge of person's liability under foreign pecuniary penalty order

Proposed subsection 35H provides that if the OT pays money to the Confiscated Assets Account in satisfaction of a person's liability under a foreign pecuniary penalty order, the person's liability under the foreign pecuniary penalty order is discharged to the extent of the payment.

The proposed section is similar to clause 286 of the PoC Bill 2002, and is based on subsection 63(6) of the PoC Act 1987.

Proposed section 35J Creation of charge on property

Upon occurrence of the events specified in paragraphs 35J(1)(a) to (c), proposed subsection 35J(1) creates a charge over the property which is the subject of a registered foreign restraining order to secure the payment of a registered foreign PPO.

Paragraphs 35J(1)(a) to (c) require a foreign restraining order and a foreign PPO to have been made against a person, and each of those orders to have been registered. The foreign PPO must be made in relation to the person's conviction for a foreign serious offence, or a related foreign serious offence.

The charge is created over the property upon the registration of the foreign restraining order or the foreign PPO, whichever occurs last. The amount is the amount that would be the penalty amount under the PoC Bill 2002 as if the foreign PPO had actually been made under that Act.

A charge made under this proposed section is subject to all earlier encumbrances that would otherwise have priority.

Proposed section 35J is based on subsections 64(1) and (3) of the PoC Act 1987.

Proposed section 35K When the charge ceases to have effect

This proposed section provides for the cessation of the charge. The charge ceases to have effect if the person pays out the PPO in full, or where the registration of the foreign restraining order or PPO is cancelled under proposed section 34G.

Sale or disposal of property by order of the court under proposed subsection 35F(3), by the owner of the property with the consent of the foreign court which made the original order, or by the owner of the property with the consent of the OT, also causes the charge to cease.

Sale of the property to a purchaser for sufficient consideration, where the person has no notice of the charge and purchases in good faith will also cause the charge to cease.

This provision is based on subsection 64(2) of the PoC Act 1987.

Proposed section 35L Registering charges

Proposed section 35L provides that where the Commonwealth, a State or Territory have a system of registration for certain types of property the OT or the DPP may apply for a charge created by proposed section 35J to be registered with the relevant authority. Once registration is effected, any person who purchases or otherwise acquires an interest in the property is taken to have notice of the charge.

This provision is based on subsection 64(4) of the PoC Act 1987.

Proposed section 35M When order ceases to be in force

Proposes subsection 35M provides that when registration of a foreign restraining order is cancelled under Subdivision A of Division 2 of the MA Act, the order ceases to be in force. This provision is based on section 65 of the PoC Act 1987.

Item 37 This item repeals the reference to 'Proceeds of Crime Act' and replaces it with a reference to a 'proceeds of crime law'. A 'proceeds of crime law' is defined in subsection 3(1) of the MA Act to include both the PoC Act 1987 and the PoC Bill 2002.

SCHEDULE 3 - RETAINING FINANCIAL TRANSACTION DOCUMENTS

This Schedule re-enacts the document retention provisions currently in the Proceeds of Crime Act 1987 (sections 76-78B) in the Financial Transaction Reports Act 1988, which already contains record retention provisions.

Financial Transaction Reports Act 1988

Item 1 This item amends the definition of 'account' so that the definition does not apply to the document retention provisions (which are to be located in Part VIA of the Financial Transaction Reports Act 1988 ('FTR Act')). The document retention provisions contain a different definition of 'account'.

Item 2 This item adds a note at the end of the definition of 'account' to make readers of the FTR Act aware that the document retention provisions contain a different definition of 'account'.

Item 3 This item notes that the term 'customer-generated financial transaction document' is defined elsewhere in the Act.

Item 4 This item amends the definition of 'financial institution' in relation to the document retention provisions to include financial corporations within the meaning of the Constitution. This reflects the definition of 'financial institution' currently in the PoC Act 1987.

Item 5 This item notes that the term 'minimum retention period' is defined elsewhere in the Act.

Item 6 This item inserts Part VIA into the FTR Act. Part VIA contains the document retention provisions.

Division 1 - Meaning of key terms used in the Part

Proposed section 40C Definitions

This provision defines 'account' and 'financial transaction document' for the purposes of Part VIA.

'Account' is defined to include a safety deposit box and an arrangement or facility for a 'fixed-term' deposit.

'Financial transaction document' is defined broadly to capture any document which relates to a financial transaction carried out by the financial institution, and can include a document relating to the opening or closing of the account, as well as documents that relate to operating the account (for example withdrawal or deposit slips).

Proposed section 40D Meaning of customer-generated financial transaction document

This provision defines 'customer-generated financial transaction document' for the purposes of Part VIA.

A customer-generated financial transaction document is a document given to the financial institution by or on of behalf a person, which relates to one of the financial transactions specified in the definition.

Proposed section 40E Meaning of minimum retention period

This provision defines 'minimum retention period' for the purposes of Part VIA.

This is the period of time which financial institutions must retain relevant documents under the obligations set out in Division 2. The period varies depending on the nature of the document - for example, if the document relates to the opening of an account, the financial institution is obliged to keep that document for the duration of the life of that account, and for seven years following the closure of that account. Documents relating to the opening of a safety deposit box are required to be kept for the same period of time. However, all other documents are only required to be kept for the seven years following the relevant transaction, regardless of whether or not the account is still active at the end of that seven years.

Division 2 - Retaining financial transaction documents

Proposed section 40F Customer-generated financial transaction documents not relating to operation of accounts

This provision obliges financial institutions to retain the original of a customer-generated financial transaction document, which does not relate to the operation of an account, for the minimum retention period. For example, this may be a document relating to the opening or closing of the account, the transmission of funds between Australia and a foreign country by the financial institution on behalf of a person or a loan application. However, the financial institution is not obliged to retain cheques or payment orders.

If the financial institutions fails to retain the document, and the failure is not attributable to the institution being required by law to release the document before the end of the minimum retention period, the institution is guilty of an offence punishable by fine of 100 penalty units.

Proposed section 40G Releasing original documents if required by law

If the institution is required by law to release the document before the end of the minimum retention period and fails to keep a complete copy of the document until the end of the period or until the original is returned, the institution is guilty of an offence punishable by fine of 100 penalty units.

The financial institution is also obliged to maintain a register of original documents that it is required by law to release prior to the end of the minimum retention period. Failure to keep such a register is an offence punishable by fine of 100 penalty units.

Proposed section 40H Customer-generated financial transaction documents relating to operation of accounts

This provision obliges financial institutions to retain either a copy or the original of a customer-generated financial transaction document, which relates to the operation of an account, for the minimum retention period. However, if this document is a cheque or payment order, or relates to a single transaction not exceeding $200 (or higher amount it specified in the regulations) the financial institution is not obliged to retain it.

If the financial institutions fails to retain the document, it is guilty of an offence punishable by fine of 100 penalty units.

Proposed section 40J Retaining other financial transaction documents

This provision obliges financial institutions to retain either a copy or the original of a financial transaction document that is not a customer-generated financial transaction document, where retention of the document is necessary to preserve a record of the transactions concerned. The document must be retained for the minimum retention period. However, if this document is a cheque or payment order, or relates to a single transaction not exceeding $200 (or higher amount it specified in the regulations) the financial institution is not obliged to retain it.

If the financial institutions fails to retain the document, it is guilty of an offence punishable by fine of 100 penalty units.

Division 3 - Obligations relating to active ADI accounts transferred to another ADI

Proposed section 40K Transferor ADI must give documents to transferee ADI

This provision applies where there are live accounts being transferred from one ADI to another. An 'ADI' is an authorised deposit-taking institution, and is defined in section 3 of the FTR Act to mean a body corporate that is an ADI for the purposes of the Banking Act 1959, the Reserve Bank of Australia, or a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution.

Proposed section 40K obliges the ADI which originally held the account to transfer over all the documents which is it required to retain by operation of Division 2 within a 120 day period beginning 30 days before the account is transferred.

If the ADI intentionally fails to give the relevant documents to the other ADI within the 120 day period, it is guilty of an offence punishable by a fine of 10 penalty units.

Proposed section 40L Compliant transferor ADIs released from retention obligations

This provision releases transferor ADIs who transferred the documents within the 120 day period from the retention obligations in proposed sections 40F and 40J.

Proposed section 40M Retention obligations of transferee ADIs

This provision obliges the transferee ADI to retain the documents transferred under proposed section 40K as if the minimum retention period applicable to the document is seven years after the closure of the transferred account. It also obliges the transferee ADI to retain the document as if the obligations in proposed sections 40F, 40H and 40J were in relation to that transferee ADI.

Division 4 - Obligations relating to closed ADI accounts transferred to another ADI

Proposed section 40N Transferor ADI may give documents to transferee ADI

Where an active account has been transferred from one ADI to another, and the transferor ADI has transferred documents to a transferee ADI pursuant to Division 3, the account with the transferor ADI will then become a closed account.

In those circumstances, this provision allows a transferor ADI to give the original and copies of a document that it is obliged to retain under Division 2 and which relate to the now closed account, to the transferee ADI.

For this to occur the two ADIs must agree in writing, and the document must be transferred within 120 days of the original transfer.

Proposed section 40P Compliant transferor ADIs released from retention obligations

This provision releases transferor ADIs who transferred documents under this Division within 120 days from the initial transfer of documents from the retention obligations in proposed sections 40F and 40J.

Proposed section 40Q Retention obligations of transferee ADIs

This provision obliges the transferee ADI to retain the documents transferred under proposed section 40K as if the minimum retention period applicable to the document is seven years after the closure of the transferred account. It also obliges the transferee ADI to retain the document as if the obligations in proposed sections 40F, 40H and 40J were in relation to that transferee ADI.

Division 5 - Miscellaneous

Proposed section 40R Retrieving documents must be reasonably practicable

This provision obliges financial institutions to store documents which it is obliged to retain under this Part in a way which makes the retrieval of those documents reasonably practicable.

Failure to so store documents is an offence punishable by a fine of 100 penalty units.

Proposed section 40S This Part does not limit any other retention obligations

This provision ensures that other retention provisions (for examples those in other parts of the FTR Act) still apply to financial institutions which are subject to Part VIA of the Act.

Proceeds of Crime Act 1987

Item 7 This item repeals Division 4 of Part IV of the PoC Act 1987, which contains the document retention provisions. The provisions governing the transition of the document retention obligations from the PoC Act 1987 to the FTR Act are set out in Schedule 7 of this Act.

SCHEDULE 4 - BANKRUPTCY

This Schedule makes amendments to the Bankruptcy Act 1966, giving priority to recovery of forfeited property or pecuniary penalty/literary proceeds amounts due under the PoC Bill 2002 over bankruptcy proceedings.

Part 1 - Effect of proceeds of crime orders

Bankruptcy Act 1966

Item 1 This item inserts a new definition of 'forfeiture order', to refer to a forfeiture order made under a proceeds of crime law. 'Proceeds of crime law is defined in Part 2 of Schedule 4.

Item 2 This amends the definition of 'pecuniary penalty order' to include a reference to a literary proceeds order (LPO), and to provide for PPOs made under the PoC Bill 2002.

Item 3 This item inserts a new definition of 'proceeds of crime order'. A 'proceeds of crime order' is a restraining order, forfeiture order or PPO. All orders may be either conviction- or civil-based under the PoC Bill 2002.

Item 4 This inserts a definition of 'restraining order'. A restraining order is an order preventing property from being disposed of or otherwise dealt with.

Item 5 This provision inserts a new section at the end of Part 1A of the Bankruptcy Act, which is an interpretative Part. Proposed section 6C provides that for the purposes of the Bankruptcy Act property is covered by a restraining order or forfeiture order from the time the order comes into force in relation to the property until it ceases or the property is excluded from the order.

A restraining order may cease for many reasons, including because property it covers is forfeited to the Commonwealth or because there is no relevant conviction or charge (if the conviction or charge is the basis of the restraining order).

Sub-paragraph 6C(1)(b)(iii) refers to where there is a restraining order in force and automatic forfeiture would occur six months after conviction of the relevant serious offence (unless the time is extended).

Proposed subsection 6C(2) makes it clear that a PPO ceases to be in force once it has been satisfied.

Proposed subsection 6C(3) establishes that for the purposes of the Bankruptcy Act an application for a proceeds of crime order is finally determined when one of the circumstances in paragraphs (a)-(c) occurs. Paragraph (a) states that if an application is withdrawn, it can be taken to be finally determined. Under paragraph (b), an application is taken to be finally determined where the application is successful and the resulting proceeds of crime order comes into force. A proceeds of crime order comes into force upon being made by a court, or in the case of automatic forfeiture under Part 2-2 of the PoC Bill 2002, upon the expiry of the relevant time since conviction of the serious offence. Upon an order being made, or time period expiring, the property vests absolutely in the Commonwealth (except where the property is real property, in which case it vests in equity and must be registered to vest is law).

Item 6 This item amends paragraph 40(1)(hd). Section 40 establishes what is an act of bankruptcy. One of the grounds which may constitute an act of bankruptcy is if a debt agreement (to which the debtor is a party as the debtor) is terminated, under either section 185P or 185Q. Item 25 inserts a new section under which a debt agreement may be terminated (proposed section 185QA), and the amendment to paragraph 40(1)(hd) reflects this.

Item 7 This item adds a Note at the end of subsection 58(1) of the Bankruptcy Act. The Note advises that subsection 58(1) has limited application if there are orders in force under the proceeds of crime law, and notes that section 58A is the appropriate section to look to in those circumstances.

Subsection 58(1) provides that where a debtor becomes a bankrupt, his or her property vests in the OT or a registered trustee, and that any after-acquired property also vests in the OT or registered trustee as soon as it is either acquired by or devolves on the bankrupt.

Item 8 This amendment removes the ability of a creditor to enforce a remedy against a bankrupt or property of the bankrupt not vested in the bankrupt, in respect of a liability under a PPO or interstate PPO. PPOs and interstate PPOs are covered by the proposed amendments at Item 6.

Item 9 This item disapplies subsection 58(1) of the Bankruptcy Act where the property of the bankrupt is covered by a restraining order or a forfeiture order made before the bankruptcy. The amendments also disapplies subsection 58(1) where a PPO is made prior to a bankruptcy.

The effect of the amendment is that the property of a bankrupt does not vest in the OT or a registered trustee at bankruptcy, and that any after-acquired property does also not vest in the OT or registered trustee when it is acquired by or devolves on the bankrupt.

Item 10 This item amends section 82 of the Bankruptcy Act, which sets out what debts are provable in bankruptcy. The amendment to subsection 82(3) removes the condition relating to PPOs and interstate PPOs. The effect of this is that penalties and fines imposed by a court in respect of an offence are not provable in bankruptcy. This item works in conjunction with item 8.

Item 11 This item amends subsection 82(3A) and provides that whereas PPOs and interstate PPOs were previously provable in bankruptcy, they no longer are. The effect of this is that the debt survives bankruptcy and thus is recoverable despite the bankruptcy.

Item 12 This item sets out when the provisions under this Schedule commence. The amendments are taken to apply to bankruptcies where the date of bankruptcy is after the commencement of the Schedule. In addition, the amendments apply to any deed of assignment, deed of arrangement or composition not accepted, before the commencement of this Schedule.

Item 13 This item creates a Subdivision A of Division 2 of Part VI of the Bankruptcy Act.

Item 14 This item inserts a Note at the end of section 108, advising that the rules in section 108 (which provides that proved debts are to rank equally unless otherwise provided) can be affected by proceeds of crime orders.

Item 15 This item creates a Subdivision B of Division 2 of Part VI of the Bankruptcy Act. The item also inserts three proposed sections, which set out the effects of proceeds of crime orders and applications for such orders on bankruptcy proceedings.

Subdivision B - The effect of proceeds of crime orders and applications for proceeds of crime orders

Proposed section 114A The effect of proceeds of crime orders

Proposed section 114A provides that where property of a bankrupt is covered by a restraining order or forfeiture order at the same time as the bankruptcy, the proceeds of any property covered by the relevant proceeds of crime order cannot be applied under section 108 while such an order is in force.

This amendment effectively excludes the property covered by a restraining order or forfeiture order from the property able to be used to pay the debts of the bankrupt.

Proposed section 114B The effect of applications for proceeds of crime orders

Proposed subsection 114B(1) provides that where an application for a forfeiture or restraining order is made under a proceeds of crime law, and the property it would cover if made is the property of a bankrupt, the proceeds of any property that would be covered by a relevant proceeds of crime order cannot be applied under section 108 before the application is determined.

Proposed subsection 114B(2) provides that where an application for a PPO is made under a proceeds of crime law, and person against whom the order is made either is or later becomes a bankrupt, the proceeds of any property of the bankrupt cannot be applied under section 108 before the application is determined.

Proposed section 114C Director of Public Prosecutions must notify the trustee of certain matters

Proposed section 114C requires the DPP to notify the trustee of circumstances which prevent section 108 from applying to the proceeds of the property of a bankrupt. The DPP must also notify the trustee when the circumstances change, and section 108 is no longer prevented from applying. For example, if an application for a restraining order is made which would cover the property of the bankrupt, proposed section 114B would prevent section 108 from applying. However, if the application was unsuccessful, proposed section 114B would no longer prevent section 108 from applying. The DPP would have to notify the trustee in both circumstances.

Item 16 this item applies new Subdivisions B to proceeds of crime orders and applications for proceeds of crime orders made after the commencement of this Schedule, even where the date of bankruptcy is before that commencement.

Item 17 This item makes paragraphs 153(2)(a)-(b) apply in the alternative.

Item 18 This item works in conjunction with item 19, which removes paragraph 153(2)(d). This item removes the word 'or' currently between paragraphs 153(2)(c) and (d).

Item 19 This item removes paragraph 153(2)(d), which states that upon discharge from bankruptcy, the bankrupt is not released the from any liability under a pecuniary penalty order or interstate pecuniary penalty order. This provision is no longer necessary, as the discharged bankrupt will remain liable for the PPO throughout and after the bankruptcy, as such orders are not provable in bankruptcy.

Item 20 This item inserts a Note, advising that a discharged bankrupt will remain liable under any PPO because such liabilities are not provable in bankruptcy.

Item 21 Item 24 of this Schedule inserts a new section under which a debt agreement may be terminated (proposed section 185QA), and the amendment to paragraph 185J(2)(a) reflects this.

Item 22 This item inserts proposed subsection 185K(2), which inserts a liability under a proceeds of crime law as a liability in respect of which a remedy may be enforced against the debtor or the debtor's property.

Item 23 Item 24 of this Schedule inserts a new section under which a debt agreement may be terminated (proposed section 185QA), and the amendment to subsection 185N(1) reflects this.

Item 24 This item inserts proposed section 185QA. Proposed section 185QA will enable a debt agreement to be terminated by the passing of a special resolution where property of the debtor is covered by a restraining order or a forfeiture order or a PPO made against the debtor is in force.

However, if the property was already covered by a restraining or forfeiture order, or a PPO was already in force against the debtor at the time the debt agreement was made, the debt agreement cannot be terminated under this section.

Item 25 Item 24 of this Schedule inserts a new section under which a debt agreement may be terminated (proposed section 185QA), and the amendment to section 185S reflects this.

Item 26 This item amends subsection 190(5) of the Bankruptcy Act to take account of new Subdivision B of Division 2 of Part VI of the Bankruptcy Act.

Item 27 This item inserts a new subsection into section 237 of the Bankruptcy Act, which provides that nothing in Division 5 of Part X (which contains special provisions applicable to Deeds of Arrangement) empowers the court to stay proceeds of crime proceedings.

Item 28 This item inserts a new subsection in section 241, which provides that a composition may be terminated by the creditors where property of the debtor is covered by a restraining order or a forfeiture order or a PPO made against the debtor is in force.

However, if the property was already covered by a restraining or forfeiture order, or a PPO was already in force against the debtor at the time the composition was made, the composition cannot be terminated under this section.

Item 29 This item inserts a new subsection into section 243 of the Bankruptcy Act, which provides that nothing in Division 6 of Part X (which contains special provisions applicable to compositions) empowers the court to stay proceeds of crime proceedings.

Proceeds of Crime Act 1987

Item 30 This item repeals paragraph 50(2)(d) of the PoC Act 1987, which has the effect of giving bankruptcy proceedings priority over PoC Act 1987 proceedings.

Item 31 This item repeals section 53 of the PoC Act 1987, which has the effect of giving bankruptcy proceedings priority over PoC Act 1987 proceedings.

Item 32 This item repeals the reference in paragraph 59(1)(f) of the PoC Act 1987 to section 53 of that Act, which has the effect of giving bankruptcy proceedings priority over PoC Act 1987 proceedings.

Item 33 This item repeals paragraph 90(2)(d) of the PoC Act 1987, which has the effect of giving bankruptcy proceedings priority over PoC Act 1987 proceedings.

Part 2 - Other amendments

Bankruptcy Act 1966

Item 34 This item amends the definition of 'confiscation order'. It repeals the reference to the PoC Act 1987 and replaces it with a reference to the PoC Bill 2002.

Item 35 This item amends the definition of 'corresponding law'. It repeals the reference to the PoC Act 1987 and replaces it with a reference to the PoC Bill 2002.

Item 36 This item amends the definition of 'interstate forfeiture order'. It repeals the reference to the PoC Act 1987 and replaces it with a reference to the PoC Bill 2002.

Item 37 This item amends the definition of 'interstate pecuniary penalty order'. It repeals the reference to the PoC Act 1987 and replaces it with a reference to the PoC Bill 2002.

Item 38 This item inserts the definition of 'proceeds of crime law', which is defined to include both the PoC Act 1987 and the PoC Bill 2002, as well as a corresponding law.

Item 39 This item amends subsection 60(4A). It repeals the reference to the PoC Act 1987 and replaces it with a reference to a 'proceeds of crime law'.

Item 40 This item amends sub-paragraph 154(6)(b)(i). It repeals the reference to the PoC Act 1987 and replaces it with a reference to a 'proceeds of crime law'.

Item 41 This item amends subsection 189AA(2). It repeals the reference to the PoC Act 1987 and replaces it with a reference to a 'proceeds of crime law'.

Item 42 This item amends sub-paragraph 231A(2)(b)(i). It repeals the reference to the PoC Act 1987 and replaces it with a reference to a 'proceeds of crime law'.

Item 43 This item amends sub-paragraph 237AA(2)(b)(i). It repeals the reference to the PoC Act 1987 and replaces it with a reference to a 'proceeds of crime law'.

Item 44 This item amends sub-paragraph 243AA(2)(b)(i). It repeals the reference to the PoC Act 1987 and replaces it with a reference to a 'proceeds of crime law'.

SCHEDULE 5 - PROPERTY SETTLEMENT AND SPOUSAL MAINTENANCE PROCEEDINGS

This Schedule amends the Family Law Act 1975 to provide for the stay of family law property settlement and spousal maintenance proceedings where some or all of the property of one or both of the parties, is the subject of a forfeiture application or POC order under the PoC Bill 2002.

Family Law Act 1975

Item 1 This item inserts the definition of DPP into the Family Law Act 1975 ('the FL Act'). DPP means the Commonwealth Director of Public Prosecutions.

Item 2 This item inserts the definition of forfeiture application into the FL Act. A 'forfeiture application' is an application under the PoC Bill 2002 for either conviction- or civil-based forfeiture. It does not include an application for a PPO or literary proceeds order (LPO).

Item 3 This item defines 'proceeds of crime order', which is either a restraining order or forfeiture order under the PoC Bill 2002.

Item 4 This item defines 'property settlement or spousal maintenance proceedings' to include proceedings in relation to either the property of the parties to the marriage or either or them, or proceedings relating to the maintenance of a party to the marriage.

Item 5 This item inserts a definition of Registry Manager into the FL Act. This is a new position reflecting changes to the management structure of the Family Court. Registry Managers rather than Registrars carry out functions that are primarily administrative in nature.

Item 6 Item 7 inserts new paragraph 79A(1)(e). This item inserts the word 'or' after existing paragraph 79A(1)(d) to reflect the inclusion of the new paragraph.

Item 7 This item inserts a new paragraph into subsection 79A(1) of the FL Act.

The court has a discretion under section 79A to vary or set aside section 79 orders in prescribed circumstances. This item inserts an additional circumstance in which a property settlement order may be set aside by the court - where a proceeds of crime order has been made covering property of the parties to the marriage or either of them or that such an order has been made against one of the parties to the marriage.

This amendment ensures that where an earlier family law settlement is set aside by a proceeds of crime order the parties are able to have the property re-distributed.

Item 8 This item inserts three new sections into the FL Act after existing section 79A. The proposed sections apply where a proceeds of crime order or forfeiture application affects an application for an order or proceedings under Part VIII of the FL Act - there are similar provisions under Item 9 in relation to proceedings under Part VIIIA of the FL Act.

Proposed section 79B Notification of proceeds of crime orders etc

This provision imposes an obligation on the parties to a marriage who are instituting property settlement or spousal maintenance proceedings under Part VIII of the FL Act to disclose in the application the existence of a relevant forfeiture application or proceeds of crime order.

The obligation to disclose is on-going. If there are no relevant proceeds of crime proceedings on foot at the time that the relevant family law proceedings are commenced, or the parties are not aware of any proceedings, but are later notified by the DPP that such proceedings have been commenced, the person notified by the DPP must notify the Registry Manager in writing.

Failure to make the disclosure at either time is an offence, punishable by a fine of 50 penalty units.

The effect of this disclosure is to stay the property or spousal maintenance proceedings until the relevant proceeds of crime proceedings are finalised. This ensures that property which may be forfeited under the PoC Bill 2002 is not dealt with by a court in property settlement or spousal maintenance proceedings.

Proposed section 79C Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc.

This proposed section provides that property settlement or spousal maintenance proceedings are stayed either on notification by either party pursuant to proposed section 79B or on the application of the DPP.

Proposed section 79D Lifting a stay

A stay may be lifted either wholly or in part by the court that ordered the stay if either party to the proceedings makes an application and the DPP consents. It may be appropriate to lift the stay where only a small portion of the property of the marriage is affected by the proceeds of crime proceedings and the parties wish to continue with the family law action.

It is appropriate for the consent of the DPP to be needed for a stay to be lifted, as the DPP is best placed to know whether proceeds of crime proceedings are finalised or whether there will be some further claim on the property.

Item 9 This item inserts three new sections into the FL Act at the end of Part VIIIA. The proposed sections apply to proceedings under Part VIIIA of the FL Act - there are similar provisions under Item 8 in relation to where an application is made under Part VIII of the FL Act.

Proposed section 90M Notification of proceeds of crime orders etc

This provision imposes an obligation on the parties to proceedings under Part VIIIA of the FL Act to disclose in the application the existence of a relevant forfeiture application or proceeds of crime order.

The obligation to disclose is on-going. If there are no relevant proceeds of crime proceedings on foot at the time that the relevant family law proceedings are commenced, or the parties are not aware of any proceedings, but are later notified by the DPP that such proceedings have been commenced, the person notified by the DPP must notify the Registry Manager in writing.

Failure to make the disclosure at either time is an offence, punishable by a fine of 50 penalty units.

The effect of this disclosure is to stay the property or spousal maintenance proceedings until the relevant proceeds of crime proceedings are finalised. This ensures that property which may be forfeited under the PoC Bill 2002 is not dealt with by a court in property settlement or spousal maintenance proceedings.

Proposed section 90N Court to stay property or spousal maintenance proceedings affected by proceeds of crime orders etc.

This proposed section provides that property settlement or spousal maintenance proceedings are stayed either on notification by either party pursuant to proposed section 79B or on the application of the DPP.

Proposed section 90P Lifting a stay

A stay may be lifted either wholly or in part by the relevant court if either party to the proceedings makes an application and the DPP consents. It may be appropriate to lift the stay where only a small portion of the property of the marriage is affected by the proceeds of crime proceedings and the parties wish to continue with the family law action. If that property is not taken into account by the family law court (or other court exercising jurisdiction under the FL Act) and is not forfeited, the parties may apply under section 79A (as amended by Item 7) to have that property distributed.

It is appropriate for the consent of the DPP to be needed for a stay to be lifted, as the DPP is best placed to know whether proceeds of crime proceedings are finalised or whether there will be some further claim on the property.

Family Law Legislation Amendment (Superannuation) Act 2001

Item 9 This item will come into effect after the Family Law Legislation Amendment (Superannuation) Act 2001 commences. It will amend subsection 5(3) of that Act, which is the application provision, and apply the superannuation amendments to paragraph 79A(1)(e).

SCHEDULE 6 - OTHER AMENDMENTS

Administrative Decisions (Judicial Review) At 1977

Item 1 This amendment affects the Administrative Decisions (Judicial Review) Act 1977 so that it does not apply to the decisions of the DPP or an approved examiner under Part 3-1 of the PoC Bill 2002.

Australian Federal Police Act 1979

Item 2 This item amend the AFP Act to specifically include the functions conferred by the PoC Bill 2002 in the listed functions of the Australian Federal Police.

Crimes Act 1914

Item 3 Sub-paragraph 3(2)(a)(ii) provides that a reference to a fine in the Crimes Act includes a reference to a pecuniary penalty other than a pecuniary penalty imposed under the PoC Act 1987. This amendment amends that reference to include a literary proceeds order or PPO under the PoC Bill 2002.

Item 4 This item amends section 3E of the Crimes Act, which sets out when a search warrant can be issued under that Act. The amendment enables an issuing officer to state in a warrant relating to a premises that the warrant authorises 'tainted property' and 'evidential material' found at the premises to be seized incidentally when a Crimes Act search warrant is executed.

'Tainted property' is defined in the PoC Bill 2002, and means the proceeds and instruments of crime. 'Evidential material' for the purpose of this amendment is as defined in the PoC Bill 2002, and encompasses evidence relating to property in respect of which action has been or could be taken under that Bill, benefits derived from the commission of an indictable offence and literary proceeds.

Things believed to be evidential material or tainted property may only be seized where it is believed seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence.

Item 5 This item amends section 3E of the Crimes Act, which sets out when a search warrant can be issued under that Act. The amendment enables an issuing officer to state in a warrant relating to a person that the warrant authorises 'tainted property' and 'evidential material' found in the course of the search, on or in the possession of the person or in a recently used conveyance to be seized incidentally when a Crimes Act search warrant is executed.

Things believed to be evidential material or tainted property may only be seized where it is believed seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence.

Item 6 This item amends section 3F of the Crimes Act, which sets out the things that are authorised by a search warrant issued under that Act. The amendment will expand the type of evidential material that is authorised by the warrant to be incidentally seized when a Crimes Act search warrant is executed in respect of a premises. The amendment will enable tainted property and evidential material within the meaning of the PoC Bill 2002 to be seized.

Things believed to be evidential material or tainted property may only be seized where it is believed seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence.

Item 7 This item amends section 3F of the Crimes Act, which sets out the things that are authorised by a search warrant issued under that Act. The amendment will expand the type of evidential material that is authorised by the warrant to be incidentally seized when a Crimes Act search warrant is executed in respect of a person. The amendment will enable tainted property and evidential material within the meaning of the PoC Bill 2002 to be seized.

Things believed to be evidential material or tainted property may only be seized where it is believed seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence.

Item 8 Section 9A of the Crimes Act requires the OT to sell or dispose of condemned articles, and apply the proceeds of the sale to payment of its remuneration and costs, and to then pay the remainder to the Confiscated Assets Reserve ('the CAR') as required by section 34B of the Proceeds of Crime Act 1987. This item amends the reference the CAR and PoC Act 1987 to the Confiscation Assets Account and the PoC Bill 2002.

Item 9 Section 9B of the Crimes Act provides that the regulations to that Act may make provision in relation to the remuneration, costs etc incurred by the OT in performing its duties under section 9A of that Act. Where there are no relevant Crimes Act regulations, the regulations pursuant to section 55 of the PoC Act 1987 (which set out the costs etc. payable to the OT) apply. This item replaces the reference to section 55 with the equivalent provision in the PoC Bill 2002 (section 277).

Item 10 This item amends the definition of 'confiscation proceedings' in subsection 21E(4) of the Crimes Act. It retains the existing definition, and includes references to relevant orders under the PoC Bill 2002.

Item 11 This item inserts a definition of 'narcotic substance' in subsection 22(7) of the Crimes Act, as the definition of 'serious narcotics offence' (to which this definition relates) is now contained in that provision.

Item 12 This item inserts a definition of 'possession' in subsection 22(7) of the Crimes Act, as the definition of 'serious narcotics offence' (to which this definition relates) is now contained in that provision.

Item 13 This item inserts a definition of 'production' in the subsection 22(7) of the Crimes Act, as the definition of 'serious narcotics offence' (to which this definition relates) is now contained in that provision.

Item 14 This item replaces the definition of 'serious narcotics offence' in subsection 22(7) of the Crimes Act with the definition contained in section 7 of the PoC Act 1987. The previous definition referred to section 7 of the PoC Act 1987. As that Act will be repealed in the future it is more appropriate for the definition to be contained in the Crimes Act.

Item 15 This item inserts a definition of 'trafficable quantity' in subsection 22(7) of the Crimes Act, as the definition of 'serious narcotics offence' (to which this definition relates) is now contained in that provision.

Item 16 Subsection 22A(2) of the Crimes Act defines 'serious narcotics offence' by reference to section 7 of the PoC Act 1987. As a consequence of putting that amendment in the Crimes Act, this subsection has been amended to refer to section 22 (of the Crimes Act).

Customs Act 1901

Item 17 This item amends section 198 of the Customs Act, which sets out when a search warrant can be issued under that Act. The amendment enables a judicial officer to state in a warrant relating to a premises that the warrant authorises 'tainted property' and 'evidential material' found on or in the premises to be seized incidentally when a Customs Act search warrant is executed.

'Tainted property' is defined in the PoC Bill 2002, and means the proceeds and instruments of crime. 'Evidential material' for the purpose of this amendment is as defined in the PoC Bill 2002, and encompasses evidence relating to property in respect of which action has been or could be taken under that Bill, benefits derived from the commission of an indictable offence and literary proceeds.

Things believed to be evidential material or tainted property may only be seized where it is believed seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence.

Item 18 This item amends section 199 of the Customs Act, which sets out the things that are authorised by a search warrant issued under that Act. The amendment will expand the type of evidential material that is authorised by the warrant to be incidentally seized when a Customs Act search warrant is executed in respect of a premises. The amendment will enable tainted property and evidential material within the meaning of the PoC Bill 2002 to be seized.

Things believed to be evidential material or tainted property may only be seized where it is believed seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence.

Item 19 This item amends section 208DA of the Customs Act, which provides for the disposal of narcotic-related goods other than narcotic goods seized under that Act. Where the relevant goods are money, paragraph 208DA(3)(a) requires the OT to pay it into the Confiscated Assets Reserve ('the CAR') as required by section 34B of the Proceeds of Crime Act 1987. This item amends the reference the CAR and PoC Act 1987 to the Confiscation Assets Account and the PoC Bill 2002.

Item 20 This item amends section 208DA of the Customs Act, which provides for the disposal of narcotic-related goods other than narcotic goods seized under that Act. Where the relevant goods are not money, they are to be sold or otherwise disposed of by the OT, who is to apply the proceeds of the sale to payment of its remuneration and costs, and to then pay the remainder to the Confiscated Assets Reserve ('the CAR') as required by section 34B of the Proceeds of Crime Act 1987. This item amends the reference the CAR and PoC Act 1987 to the Confiscation Assets Account and the PoC Bill 2002.

Item 21 This item amends sub-paragraph 219A(2)(c)(iii) of the Customs Act, which refers to a proceeding by way of an application for an order or a warrant under the PoC Act 1987, to also refer to such a proceeding under the PoC Bill 2002.

Item 22 This item amends section 243G of the Customs Act, which provides for the Official Trustee to discharge a pecuniary penalty order made under that Act. Where the persons assets have been restrained and those assets are money, the OT is required to apply the money to payment of its remuneration and costs and to pay the remainder into the Confiscated Assets Reserve ('the CAR') as required by section 34B of the Proceeds of Crime Act 1987. This item amends the reference the CAR and PoC Act 1987 to the Confiscation Assets Account and the PoC Bill 2002.

Item 23 This item amends section 243G of the Customs Act, which provides for the Official Trustee to discharge a pecuniary penalty order made under that Act. Where the persons assets have been restrained and those assets are not money, the OT is required to sell or otherwise dispose of the assets, and apply the proceeds of the sale to payment of its remuneration and costs, and pay the remainder into the Confiscated Assets Reserve ('the CAR') as required by section 34B of the Proceeds of Crime Act 1987. This item amends the reference the CAR and PoC Act 1987 to the Confiscation Assets Account and the PoC Bill 2002.

Item 24 This item amends subsection 243G(7) of the Customs Act, which provides that where the restrained assets (or proceeds of the sale of the liquidated assets) exceed the amount of the PPO, the OT must pay the PPO amount into the Confiscated Assets Reserve ('the CAR') as required by section 34B of the Proceeds of Crime Act 1987, and pay the rest to the person whose property was restrained. This item amends the reference the CAR and PoC Act 1987 to the Confiscation Assets Account and the PoC Bill 2002.

Item 25 This item amends subsection 243G(8) of the Customs Act, which provides that where the OT pays money to the CAR as required by section 34B of the Proceeds of Crime Act 1987 in satisfaction of the person's liability under the PPO, that liability is discharged. This item amends the reference the CAR and PoC Act 1987 to the Confiscation Assets Account and the PoC Bill 2002.

Item 26 This item amends section 243P of the Customs Act, which provides that the regulations to that Act may make provision in relation to the remuneration, costs etc incurred by the OT in performing its duties under Division 3 of Part XIII of that Act. Where there are no relevant Customs Act regulations, the regulations pursuant to section 55 of the PoC Act 1987 (which set out the costs etc. payable to the OT) apply. This item replaces the reference to section 55 with the equivalent provision in the PoC Bill 2002 (section 277).

Director of Public Prosecutions Act 1983

Item 27 This item gives the DPP a specific function to institute and carry on proceedings (or co-ordinate or supervise proceedings) under the PoC Bill 2002.

Item 28 This item amends paragraph 6(1)(n) to include a reference to the additional function of the DPP.

Item 29 This item amends the definition of 'specified proceedings' in subsection 9(6A) of the DPP Act to include a reference to the PoC Bill 2002.

Item 30 This item enables a court to make an order restricting the publication of matters referred to in an affidavit to the court which was made in connection with an application for a restraining order where such an order is necessary to prevent prejudice to the administration of justice. Those matters may include the suspicions held by an authorised officer about the nature of the property seeking to be restrained, or that a person engaged in particular criminal conduct.

Item 31 This item inserts a reference to new subsection 16A(1AB).

Foreign Evidence Act 1994

Item 32 This item amends the definition of 'related civil proceeding' (which currently refers to the PoC Act 1987) to include a reference to the PoC Bill 2002.

National Crime Authority Act 1984

These amendments clarify the ability of the National Crime Authority (NCA) to assemble evidence that would be admissible in confiscation proceedings and provide it to authorities that are responsible for conducting such proceedings.

Item 33 This item inserts a definition of 'confiscation proceedings' in the NCA Act. The term is defined to include all proceedings under the PoC Act 1987, the PoC Bill 2002 and corresponding states and territory laws, but does not include proceedings for a criminal prosecution.

Items 34 to 36 These items amend the definition of "relevant offence" in the NCA Act to include offences that are defined as "serious offences" under the PoC Bill 2002. The effect of this amendment is to confer jurisdiction on the NCA to investigate such offences. However, the NCA will only be able to exercise its compulsory information gathering powers in relation to the investigation of such offences where a special reference has been issued to it by the Commonwealth or a State or Territory.

Item 37 This item clarifies the ability of the NCA to assemble evidence that would be admissible in confiscation proceedings and give it to the Commonwealth or a relevant State Attorney-General, or a relevant law enforcement agency, or any person or authority who is authorised to commence confiscation proceedings.

Item 38 This item clarifies that information obtained pursuant to the NCA's compulsory information gathering powers will not be inadmissible in confiscation proceedings.

Item 39 This item requires the NCA to include in its Annual Report information about the extent to which its investigations have resulted in confiscation proceedings.

National Environment Protection Measures (Implementation) Act 1998

Item 40 This amendment amends the reference to the PoC Act 1987 to include the PoC Bill 2002.

Item 41 This amendment amends the reference to the PoC Act 1987 to include the PoC Bill 2002.

Sea Installations Act 1987

Item 42 This amends the Schedule to the Sea Installations Act 1987, which contains a reference to the PoC Act 1987, to include a reference to the PoC Bill 2002.

Service and Execution of Process Act 1992

Item 43 This item amends the definition of 'proceeds of crime legislation' to include a reference to the PoC Bill 2002.

Taxation Administration Act 1953

Item 44 This item replaces the reference to the Proceeds of Crime Act 1987 with a reference to the new Act. Section 331 establishes the definition of "convicted of an offence."

This definition remains unchanged from section 5 of the Proceeds of Crime Act 1987. A person is taken to be convicted of an offence if the person is convicted, whether summarily or on indictment, of the offence; or the person is charged with, and found guilty of, the offence but is discharged without conviction; or a court, with the consent of the person, takes the offence, of which the person has not been guilty, into account in passing sentence on the person for another offence; or the person absconds in connection with the offence. This item does not apply to a foreign serious offence.

Item 45 This item expands the definition of "proceeds of crime order" for the purposes of section 3E(1)(b) of the Taxation Administration Act. Section 3E(1)(b) gives the Commissioner of Taxation a discretion to disclose information acquired under a taxation law to an authorised law enforcement agency. The Commissioner must be satisfied that the information is relevant to the making, or proposed or possible making, of a proceeds of crime order.

This new definition of "proceeds of crime order" gives the Commissioner a further discretion to disclose information for the purposes of the Commonwealth's civil forfeiture regime established by Chapter 2 of the PoC Bill 2002.

Four types of orders may be made under Chapter 2 of the PoC Bill 2002: restraining orders, forfeiture orders, pecuniary penalty orders and literary proceeds orders. Division 1 of Part 3-1 of the bill covers examination orders which form part of the information-gathering scheme established by Chapter 3 of the Bill.

This definition also includes an order relating to the commission of a serious offence under relevant provisions of State and Territory proceeds of crime legislation and Division 3 of Part XIII of the Customs Act 1901.

Telecommunications (Interception) Act 1979

Item 46 This item establishes that a reference in the Telecommunications (Interception) Act 1979 ('TI Act) to a proceeding for the confiscation or forfeiture of property, or for the imposition of a pecuniary penalty, in connection with the commission of a prescribed offence, includes a proceeding by way of an application for a restraining order (or an order that is ancillary to a restraining order) under section 17 of the PoC Bill 2002. Section 17 enables a restraining order to be made on the basis that a person has been or is about to be charged with an indictable offence or convicted of such an offence.

The effect of this item is that the reference is limited to conviction-based restraining orders. As a result, agencies will be permitted to employ intercepted information only in connection with proceedings for an indictable offence and not in connection with the civil-based forfeiture regime (in which a criminal conviction is not a precondition and in which a lower civil standard of proof is employed.)

Item 47 This item expands the definition of "relevant proceeding" for the purposes of section 67 of the TI Act. Section 67 provides that officers of an agency may only communicate or make a record of telecommunications interception information for a permitted purpose. Section 5(1) defines "permitted purpose" to include "a purpose connected with...(a)...(iii) a relevant proceeding in relation to the agency or eligible authority."

This item facilitates the sharing of relevant intercepted information amongst law enforcement agencies. It enables the National Crime Authority (NCA) to directly communicate TI information to the Commonwealth DPP (and State equivalents) in support of proceeds of crime proceedings connected with a prescribed offence. Previously the definition of "relevant proceeding" in relation to the NCA was limited to a proceeding by way of a prosecution for a prescribed offence. This did not reflect the range of purposes, as contained in section 6L(b) of the TI Act, for which the AFP and State Police Services were permitted to use intercepted information.

Trade Marks Act 1995

Item 48 This item amends the definition of 'forfeiture order provisions' to include Parts 2-2 and 2-3 of the PoC Bill 2002.

Witness Protection Act 1994

Item 49 This item amends subsection 23(2) of the Witness Protection Act to include Parts 2-2 and 2-3 of the PoC Bill 2002.

SCHEDULE 7 - TRANSITIONAL AND RELATED MATTERS

These provisions will facilitate the transition from the Proceeds of Crime Act 1987 to the PoC Bill 2002.

Part 1 - Application of the Proceeds of Crime Act 1987

Proceeds of Crime Act 1987

Item 1 This item inserts a definition of 'commencement of the Proceeds of crime Act 2002' into the PoC Act 1987.

Item 2 This item repeals subsection 14(2), which sets out when the DPP can apply for a confiscation order under the PoC Act 1987. That provision is contained in proposed paragraph 14(2)(a). Proposed paragraph 14(2)(b) prohibits the DPP from making an application for a confiscation order after the commencement of the PoC Bill 2002 unless there is already a relevant restraining order in force under the PoC Act 1987. This ensures that no new proceedings are taken under the PoC Act 1987 once the PoC Bill 2002 has commenced.

Item 3 This item amends section 22 of the PoC Act 1987 to provide that where a conviction is quashed after the commencement of the PoC Bill 2002, the effect of that quashing on a proceeds of crime order is to be dealt with under the PoC Bill 2002, not the PoC Act 1987.

Item 4 Section 30 of the PoC Act 1987 provides for the automatic forfeiture of restrained property upon a person's conviction of a serious offence. This item amends section 30 to provide that it only applies where the conviction occurs prior to the commencement of the PoC Bill 2002.

Item 5 This item amends section 32 of the PoC Act 1987 to provide that where a conviction for a serious offence is quashed after the commencement of the PoC Bill 2002, the effect of that quashing on the forfeiture of that person's property is to be dealt with under the PoC Bill 2002, not the PoC Act 1987.

Item 6 Section 35 enables a police officer to search for and seize tainted property. This item amends that section to provide that a police officer cannot do anything under that section after the commencement of the PoC Bill 2002, unless it is done under a warrant which was issued under the PoC Act 1987 before the PoC Bill 2002 commenced.

Item 7 Section 43 of the PoC Act 1987 enables a DPP to apply for a restraining order. This item amends section 43 to prohibit the DPP from applying for a restraining order under that section once the PoC Bill 2002 has commenced. This ensures that all new actions are commenced under the PoC Bill 2002.

Item 8 Paragraph 57(2)(d) sets out that a restraining order ceases to be in force upon acquittal if the person the subject of the order is acquitted of the charge on which the order was based, and is not charged with a related indictable offence by the time of the acquittal. This item amends that subsection to provide that if the PoC Bill 2002 is in force at the time of the acquittal, the restraining order does not cease until 28 days after the acquittal. This reflects the cessation provisions in the PoC Bill 2002, and that civil-based forfeiture proceedings are able to be taken in respect of a person who was acquitted of an offence.

Item 9 Section 66 enables production orders to be applied for and made. This item amends the section to prohibit a police officer to apply for a production order under section 66 after the PoC Bill 2002 has commenced. The PoC Bill 2002 contains its own production order regime.

Item 10 Section 70 enables a police officer to search for and seize property-tracking documents. This item amends that section to provide that a police officer cannot do anything under that section after the commencement of the PoC Bill 2002, unless it is done under a warrant which was issued under the PoC Act 1987 before the PoC Bill 2002 commenced.

Item 11 Section 73 enables monitoring orders to be applied for and made. This item amends the section to prohibit a police officer to apply for a monitoring order under section 73 after the PoC Bill 2002 has commenced. The PoC Bill 2002 contains its own production order regime.

Item 12 Section 86 provides for the registration of interstate restraining orders under the PoC Act 1987. This item prohibits those orders being registered under the PoC Act 1987 if the PoC Bill 2002 has commended.

Item 13 Section 86 provides for the registration of interstate forfeiture orders under the PoC Act 1987. This item prohibits those orders being registered under the PoC Act 1987 if the PoC Bill 2002 has commended.

Item 14 This item makes it clear that the transitional amendments in Part 1 of Schedule 7 do not affect applications or orders made ,or warrants or search warrants issued, under the PoC Act 1987 made before the commencement of the PoC Bill 2002.

Item 15 This item makes it clear that property, documents or evidence seized or otherwise obtained pursuant to the operation of the PoC Act 1987 can be used under the PoC Bill 2002.

Item 16 This item makes it clear that the document retention obligations of financial institutions continue in force, despite the move of the provisions from the PoC Act 1987 to the FTR Act.

Part 2 - Application of the Proceeds of Crime Act 2002

Item 17 This item provides that references to the commencement of the PoC Act 2002 in Part 2 of Schedule 7 are references to the commencement of sections 3 to 332 of that Act, which will commence later than sections 1 and 2.

Item 18 This item makes it clear that an order under the PoC Bill 2002 can relate to an offence which was committed prior to the Bill commencing. However, property cannot be automatically forfeited under Part 2-3 if the relevant conviction occurred prior to commencement.

Item 19 This item prohibits the DPP from applying for a restraining order under the PoC Bill 2002 if there is an application for a restraining order on foot under the PoC Act 1987.

This item also prohibits the DPP from applying for a restraining order under section 17 of the PoC Bill 2002 (a 'conviction-based' restraining order) if an application for that type of order has been refused under the PoC Act 1987. However, the DPP is not prevented from applying for another type of restraining order under the PoC Bill 2002.

Item 20 This item prohibits the DPP from applying for a forfeiture order under the PoC Bill 2002 if there is an application for a forfeiture order on foot under the PoC Act 1987.

This item also prohibits the DPP from applying for a forfeiture order under section 46 of the PoC Bill 2002 (a 'conviction-based' forfeiture order) if an application for that type of order has been refused under the PoC Act 1987. However, the DPP is not prevented from applying for another type of forfeiture order (ie a civil-forfeiture order) under the PoC Bill 2002.

Item 21 Where a forfeiture order has been made under the PoC Act 1987 (whether before or after the commencement of the PoC Bill 2002) and the conviction on which that order is based is quashed, and that occurs after the commencement of the PoC Bill 2002, Division 6 of Part 2-2 of the PoC Bill 2002 applies.

Where a persons property was automatically forfeited under the PoC Act 1987 as a result of his or her conviction of a serious offence (whether before or after the commencement of the PoC Bill 2002) and the conviction on which that order is based is quashed, and that occurs after the commencement of the PoC Bill 2002, Division 4 of Part 2-3 of the PoC Bill 2002 applies.

Item 22 This item prohibits the DPP from apply for a PPO under the PoC Bill 2002 if an application for a PPO has been made under the PoC Act 1987, and that application is still pending.

This item also prohibits the DPP from applying for a PPO under section 111 of the PoC Bill 2002 if the application is based on the person's conviction of an offence, an application for that type of order has been refused under the PoC Act 1987. However, the DPP is not prevented from applying for a PPO under Part 2-3 of the PoC Bill 2002 in respect of that offence.

Item 23 Where a PPO has been made under the PoC Act 1987 (whether before or after the commencement of the PoC Bill 2002) and the conviction on which that order is based is quashed, and that occurs after the commencement of the PoC Bill 2002, Division 5 of Part 2-4 of the PoC Bill 2002 applies.

Item 24 Where an interstate restraining order has been registered under Part 4-5 of the PoC Act 1987, Division 1 of Part 4-5 of PoC Bill 2002 does not apply to that order.

Item 25 Where an interstate forfeiture order has been registered under Part 4-5 of the PoC Act 1987, Division 2 of Part 4-5 of PoC Bill 2002 does not apply to that order.

Item 26 This item enables regulations which are already in force under the PoC Act 1987 to continue in force as if they were made under the PoC Bill 2002 until regulations are made under the Bill. The item sets out the regulations which are in the PoC Act 1987 and the corresponding provisions in the PoC Bill 2002.


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