Explanatory Memorandum
(Circulated by authority of the Minister for Justice and Customs, Senator the Honourable Chris Ellison)Schedule 3 - Proceeds of crime orders
Proceeds of Crime Act 2002
The amendments to the Proceeds of Crime Act 2002 are technical amendments that give effect to existing policy intentions of the Proceeds of Crime Act 2002 and the Bankruptcy Act 1966 . The current policy intention is to enable a court to make a restraining order against a person's property which has vested in a trustee under the Bankruptcy Act 1966 . The amendments will improve the operation of this policy.
Proposed Item 1 - After paragraph 17(2)(a)
This proposed item allows a restraining order to be made over all or specified property of a suspect when their property has vested in a trustee under the Bankruptcy Act 1966 .
Proposed Item 2 - After paragraph 17(2)(b)
This proposed item allows a restraining order to be made over property other than specified property of a suspect when their property has vested in a trustee under the Bankruptcy Act 1966 .
Proposed Item 3 - Paragraph 17(3)(b)
This proposed item removes the requirement for an authorised officer to provide the information in section 17(3)(b) Proceeds of Crime Act 2002 . This is because the property is vested in a trustee under the Bankruptcy Act 1966 and therefore the need to prove the property is under the effective control of the suspect or is proceeds or an instrument of the offence is precluded.
Proposed Item 4 - After paragraph 18(2)(a)
This proposed item allows a restraining order to be made over all or specified property of a suspect when their property has vested in a trustee under the Bankruptcy Act 1966 .
Proposed Item 5 - After paragraph 18(2)(b)
This proposed item allows a restraining order to be made over property other than specified property of a suspect when their property has vested in a trustee under Bankruptcy Act 1966 .
Proposed Item 6 - Paragraph 18(3)(b)
This proposed item removes the requirement for an authorised officer to provide the information in section 18(3)(b) Proceeds of Crime Act 2002 . This is because the property is vested in a trustee under the Bankruptcy Act 1966 and therefore the need to prove the property is under the effective control of the suspect or is proceeds or an instrument of the offence is precluded.
Proposed Item 7 - After paragraph 20(2)(a)
This proposed item allows a restraining order to be made over all or specified property of a suspect when their property has vested in a trustee under the Bankruptcy Act 1966 .
Proposed Item 8 - After paragraph 20(2)(b)
This proposed item allows a restraining order to be made over property other than specified property of a suspect when their property has vested in a trustee under the Bankruptcy Act 1966 .
Proposed Item 9 - Paragraph 20(3)(d)
This proposed item removes the requirement for an authorised officer to provide the information in section 20(3)(d) Proceeds of Crime Act 2002 . This is because the property is vested in a trustee under the Bankruptcy Act 1966 and therefore the need to prove the property is under the effective control of the suspect is precluded.
Proposed Item 10 - Section 338
Proposed Item 10 inserts a definition of "bankruptcy property" into section 338 Proceeds of Crime Act 2002 to cover property of a person that is vested in a bankruptcy trustee under section 58(1) or section 249(1) of the Bankruptcy Act 1966 .
Proposed Item 11 - Application
The amendments will enable orders made under the Proceeds of Crime Act 2002 to apply to property vested under the Bankruptcy Act 1966 before, on or after the commencement of these proposed items. However the amendments only enable proceeds of crime orders to be made after these amendments come into force and thus there is no retrospective effect.