Revised Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs Senator the Honourable Chris Ellison)Schedule 6 - Other Amendments
Administrative Decisions (Judicial Review) At 1977
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
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
This item amends paragraph 6(1)(n) to include a reference to the additional function of the DPP.
This item amends the definition of 'specified proceedings' in subsection 9(6A) of the DPP Actto include a reference to the PoC Bill 2002.
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.
This item inserts a reference to new subsection 16A(1AB).
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.
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.
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.
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.
This item clarifies that information obtained pursuant to the NCA's compulsory information gathering powers will not be inadmissible in confiscation proceedings.
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
This amendment amends the reference to the PoC Act 1987 to include the PoC Bill 2002.
This amendment amends the reference to the PoC Act 1987 to include the PoC Bill 2002.
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
This item amends the definition of 'proceeds of crime legislation' to include a reference to the PoC Bill 2002.
Taxation Administration Act 1953
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.
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
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 the PoC Bill 2002.
This amendment will enable intercept material to be used in restraining order proceedings for both conviction- and civil-based proceedings under that Act.
This item expandsthe 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.
This item amends the definition of 'forfeiture order provisions' to include Parts 2-2 and 2-3 of the PoC Bill 2002.
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
This item inserts a definition of 'commencement of the Proceeds of crime Act 2002' into the PoC Act 1987.
This item prevents new confiscation matters from being brought under the PoC Act 1987 after the PoC Bill 2002 has commenced. It does this by amending section 14 of the PoC Act 1987 to provide that the DPP cannot seek an application under that section unless some or all of the property which could be used to satisfy an order was restrained under that Act prior to the PoC Bill 2002 commencing.
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.
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 there is in force a restraining order made under the PoC Act 1987 prior to the PoC Bill 2002 commencing.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.