Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (3 of 2010)

Schedule 2   Other amendments relating to proceeds of crime

Part 1   Freezing orders

Division 1   Main amendments

Proceeds of Crime Act 2002

3   Before Part 2-1

Insert:

Part 2-1A - Freezing orders

15A Simplified outline of this Part

A freezing order can be made against an account with a financial institution if:

(a) there are grounds to suspect the account balance reflects proceeds or an instrument of certain offences; and

(b) a magistrate is satisfied that, unless the order is made, there is a risk that the balance of the account will be reduced so that a person will not be deprived of all or some of the proceeds or instrument.

Division 1 - Making freezing orders

15B Making freezing orders

(1) A magistrate must order that a *financial institution not allow a withdrawal from an *account with the institution, except in the manner and circumstances specified in the order, if:

(a) an *authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338 applies for the order in accordance with Division 2; and

(b) there are reasonable grounds to suspect that the balance of the account:

(i) is *proceeds of an *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or

(ii) is wholly or partly an *instrument of a *serious offence; and

(c) the magistrate is satisfied that, unless an order is made under this section, there is a risk that the balance of the account will be reduced so that a person will not be deprived of all or some of such proceeds or such an instrument.

Note 1: Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain AFP members, certain members of the Australian Commission for Law Enforcement Integrity, certain members of the Australian Crime Commission and certain officers of Customs.

Note 2: The balance of the account may be proceeds of an offence even though the balance is only partly derived from the offence: see section 329.

(2) An order made under subsection (1) covers the balance of the *account from time to time.

Order need not be based on commission of particular offence

(3) The reasonable grounds referred to in paragraph (1)(b), and the satisfaction referred to in paragraph (1)(c), need not be based on a finding as to the commission of a particular offence.

Division 2 - How freezing orders are obtained

15C Affidavit supporting application made in person

If an *authorised officer applies in person to a magistrate for a *freezing order relating to an *account with a *financial institution, the application must be supported by an affidavit of an authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338:

(a) setting out sufficient information to identify the account (for example, the account number); and

(b) identifying the financial institution; and

(c) setting out the grounds to suspect that the balance of the account:

(i) is *proceeds of an *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern; or

(ii) is wholly or partly an *instrument of a *serious offence; and

(d) setting out the grounds on which a person could be satisfied that, unless the order is made, there is a risk that the balance of the account will be reduced so that a person will not be deprived of all or some of such proceeds or of such an instrument.

Note: Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain AFP members, certain members of the Australian Commission for Law Enforcement Integrity, certain members of the Australian Crime Commission and certain officers of Customs.

15D Applying for freezing orders by telephone or other electronic means

(1) An *authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338 may apply to a magistrate for a *freezing order by telephone, fax or other electronic means:

(a) in an urgent case; or

(b) if the delay that would occur if an application were made in person would frustrate the effectiveness of the order.

Note: Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain AFP members, certain members of the Australian Commission for Law Enforcement Integrity, certain members of the Australian Crime Commission and certain officers of Customs.

(2) An application under subsection (1):

(a) must include all information that would be required in an ordinary application for a *freezing order and supporting affidavit; and

(b) if necessary, may be made before the affidavit is sworn.

(3) The magistrate may require:

(a) communication by voice to the extent that it is practicable in the circumstances; and

(b) any further information.

15E Making order by telephone etc.

(1) The magistrate may complete and sign the same form of *freezing order that would be made under section 15B if satisfied that:

(a) a freezing order should be issued urgently; or

(b) the delay that would occur if an application were made in person would frustrate the effectiveness of the order.

(2) If the magistrate makes the *freezing order, he or she must inform the applicant, by telephone, fax or other electronic means, of the terms of the order and the day on which and the time at which it was signed.

(3) The applicant must then:

(a) complete a form of *freezing order in terms substantially corresponding to those given by the magistrate; and

(b) state on the form:

(i) the name of the magistrate; and

(ii) the day on which the order was signed; and

(iii) the time at which the order was signed.

(4) The applicant must give the magistrate the form of *freezing order completed by the applicant by the end of:

(a) the second *working day after the magistrate makes the order; or

(b) the first working day after the magistrate makes the order, if it is served on the *financial institution concerned before the first working day after the magistrate makes the order.

(5) If, before the magistrate made the *freezing order, the applicant did not give the magistrate an affidavit supporting the application and meeting the description in section 15C, the applicant must do so by the time by which the applicant must give the magistrate the form of freezing order completed by the applicant.

(6) If the applicant does not comply with subsection (5), the *freezing order is taken never to have had effect.

(7) The magistrate must attach the form of *freezing order completed by the magistrate to the documents provided under subsection (4) and (if relevant) subsection (5).

15F Unsigned freezing orders in court proceedings

If:

(a) it is material, in any proceedings, for a court to be satisfied that a *freezing order applied for under section 15D was duly made; and

(b) the form of freezing order signed by the magistrate is not produced in evidence;

the court must assume that the order was not duly made unless the contrary is proved.

15G Offence for making false statements in applications

A person commits an offence if:

(a) the person makes a statement (whether orally, in a document or in any other way); and

(b) the statement:

(i) is false or misleading; or

(ii) omits any matter or thing without which the statement is misleading; and

(c) the statement is made in, or in connection with, an application for a *freezing order.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

15H Offences relating to orders made under section 15E

Offence for stating incorrect names in telephone orders

(1) A person commits an offence if:

(a) the person states a name of a magistrate in a document; and

(b) the document purports to be a form of *freezing order under section 15E; and

(c) the name is not the name of the magistrate who made the order.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Offence for unauthorised form of order

(2) A person commits an offence if:

(a) the person states a matter in a form of *freezing order under section 15E; and

(b) the matter departs in a material particular from the order made by the magistrate.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Offence for service of unauthorised form of order

(3) A person commits an offence if:

(a) the person presents a document to a person; and

(b) the document purports to be a form of *freezing order under section 15E; and

(c) the document:

(i) has not been approved by a magistrate under that section; or

(ii) departs in a material particular from the terms given by the magistrate under that section.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Offence for giving form of order different from that served

(4) A person commits an offence if:

(a) the person gives a magistrate a form of *freezing order under section 15E relating to a *financial institution; and

(b) the person does so after presenting to the financial institution a document purporting to be a form of the freezing order; and

(c) the form given to the magistrate is not in the same form as the document presented to the financial institution.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

Division 3 - Giving effect to freezing orders

15J Service of freezing order etc. on financial institution and account-holder

(1) If a magistrate makes a *freezing order relating to an *account with a *financial institution, the applicant for the order must cause the things described in subsection (2) to be given to:

(a) the financial institution; and

(b) each person in whose name the account is held.

(2) The things are as follows:

(a) a copy of the order (or of a form of the order under section 15E);

(b) a written statement of the name and contact details of the *enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the applicant.

Note: If the copy of the order is given to the financial institution after the end of the first working day after the order is made, the order does not come into force: see subsection 15N(1).

15K Freezing order does not prevent withdrawal to enable financial institution to meet its liabilities

A *freezing order relating to an *account with a *financial institution does not prevent the institution from allowing a withdrawal from the account to enable the institution to meet a liability imposed on the institution by or under a written law of the Commonwealth, a State or a Territory.

15L Offence for contravening freezing orders

A *financial institution commits an offence if:

(a) the institution allows a withdrawal from an *account with the institution; and

(b) there is a *freezing order relating to the account; and

(c) allowing the withdrawal contravenes the order.

Penalty: Imprisonment for 5 years or 300 penalty units or both.

15M Protection from suits etc. for those complying with orders

No action, suit or proceeding lies against:

(a) a *financial institution; or

(b) an *officer or *agent of the institution acting in the course of that person's employment or agency;

in relation to any action taken by the institution or person in complying with a *freezing order or in the mistaken belief that action was required under a freezing order.

Note: This section does not affect any action that may lie against anyone else for the making or operation of a freezing order.

Division 4 - Duration of freezing orders

15N When a freezing order is in force

(1) A *freezing order relating to an *account with a *financial institution comes into force when a copy of the order (or of a form of the order under section 15E) is given to the institution. However, the order does not come into force if the copy is given to the institution after the end of the first *working day after the order is made.

(2) The *freezing order remains in force until:

(a) the end of the period specified in the order (as affected by section 15P if relevant) from when the copy of the order was given to the institution; or

(b) if, before the end of that period, a court makes a decision on an application for a *restraining order to cover the *account - the time the court makes that decision.

(3) The *freezing order, as originally made, must not specify a period of more than 3 *working days.

15P Order extending a freezing order

(1) A magistrate may make an order extending the period specified in a *freezing order made in relation to an *account with a *financial institution if:

(a) an *authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338 applies for the extension; and

(b) the magistrate is satisfied that an application has been made to a court (but not decided by the court) for a *restraining order to cover the account (whether or not the restraining order is also to cover other property).

(2) The extension may be for:

(a) a specified number of *working days; or

(b) the period ending when the court decides the application for the *restraining order.

(3) The extension does not have effect unless a copy of the order for the extension is given to the *financial institution before the time the *freezing order would cease to be in force apart from the extension.

(4) The following provisions apply in relation to an order extending a *freezing order in a way corresponding to the way in which they apply in relation to a freezing order:

(a) Division 2 (except paragraphs 15C(c) and (d));

(b) section 15J (except the note to that section).

(5) Division 2 applies because of subsection (4) as if:

(a) section 15C also required that an affidavit supporting an application:

(i) identify the *freezing order; and

(ii) state that an application has been made for a *restraining order to cover the *account; and

(b) the reference in subsection 15E(1) to section 15B were a reference to subsection (1) of this section.

Division 5 - Varying scope of freezing orders

15Q Magistrate may vary freezing order to allow withdrawal to meet reasonable expenses

(1) A magistrate may vary a *freezing order relating to an *account with a *financial institution so that the institution may allow a withdrawal from the account to meet one or more of the following relating to a person in whose name the account is held:

(a) the reasonable living expenses of the person;

(b) the reasonable living expenses of any of the *dependants of the person;

(c) the reasonable business expenses of the person;

(d) a specified debt incurred in good faith by the person.

(2) The magistrate may vary the *freezing order only if:

(a) a person in whose name the *account is held has applied for the variation; and

(b) the person has notified the *DPP in writing of the application and the grounds for the application; and

(c) the magistrate is satisfied that the expense or debt does not, or will not, relate to legal costs that the person has incurred, or will incur, in connection with:

(i) proceedings under this Act; or

(ii) proceedings for an offence against a law of the Commonwealth, a State or a Territory; and

(d) the magistrate is satisfied that the person cannot meet the expense or debt out of property that is not covered by:

(i) a freezing order; or

(ii) a *restraining order; or

(iii) an *interstate restraining order; or

(iv) a *foreign restraining order that is registered under the *Mutual Assistance Act.

(3) The variation does not take effect until written notice of it is given to the *financial institution.

Division 6 - Revoking freezing orders

15R Application to revoke a freezing order

(1) A person may apply to a magistrate to revoke a *freezing order.

(2) The applicant for the revocation must give written notice of the application and the grounds on which the revocation is sought to the *enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the *authorised officer who applied for the *freezing order.

(3) One or more of the following may adduce additional material to the magistrate relating to the application to revoke the *freezing order:

(a) the *authorised officer who applied for the freezing order;

(b) the authorised officer whose affidavit supported the application for the freezing order;

(c) another authorised officer described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer mentioned in paragraph (a) or (b) of this subsection.

(4) The magistrate may revoke the *freezing order if satisfied that it is in the interests of justice to do so.

15S Notice of revocation of a freezing order

(1) If a *freezing order relating to an *account with a *financial institution is revoked under section 15R, an *authorised officer (the notifying officer ) described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer who applied for the freezing order must cause written notice of the revocation to be given to:

(a) the financial institution; and

(b) each person in whose name the account is held.

(2) However, the notifying officer need not give notice to the applicant for the revocation.

(3) Subsection (1) does not require more than one *authorised officer to cause notice of the revocation to be given.