Unexplained Wealth Legislation Amendment Act 2018 (126 of 2018)

Schedule 4   Information gathering under the national cooperative scheme on unexplained wealth

Proceeds of Crime Act 2002

6   In the appropriate position

Insert:

Schedule 1 - Information gathering by participating States and self-governing Territories

Note: See section 14M.

Part 1 - Production orders

1 Making production orders

(1) A magistrate may make an order (a production order )requiring a person to:

(a) produce one or more documents referred to in subclause (6) to an *authorised State/Territory officer of a *participating State or *self-governing Territory; or

(b) make one or more documents referred to in subclause (6) available to an authorised State/Territory officer of a participating State or self-governing Territory for inspection.

(2) An authorised State/Territory officer of a *participating State or *self-governing Territory means:

(a) a person who may apply for, or make an affidavit in support of, a restraining order under a *special confiscation law of the State or Territory; or

(b) if New South Wales is a participating State - the Commissioner and Assistant Commissioners of the New South Wales Crimes Commission; or

(c) for a self-governing Territory - a person of a kind prescribed by the regulations in relation to the Territory.

(3) However:

(a) the magistrate must not make a *production order unless the magistrate is satisfied by information on oath that the person is reasonably suspected of having possession or control of such documents; and

(b) a production order cannot require documents that are not:

(i) in the possession or under the control of a body corporate; or

(ii) used or intended to be used in the carrying on of a business;

to be produced or made available to an *authorised State/Territory officer of the *participating State or *self-governing Territory concerned; and

(c) a production order cannot require any accounting records used in the ordinary business of a *financial institution (including ledgers, day-books, cash-books and account books) to be produced to an authorised State/Territory officer of the participating State or self-governing Territory concerned.

(4) The *production order can only be made on application by an *authorised State/Territory officer of a *participating State or *self-governing Territory.

(5) The *authorised State/Territory officer need not give notice of the application to any person.

(6) Each of the following is a document that may be the subject of a *production order:

(a) a document relevant to identifying, locating or quantifying property of a person for the purposes of:

(i) determining whether to take any action in relation to the person under the *unexplained wealth legislation of the *participating State or *self-governing Territory concerned; or

(ii) proceedings in relation to the person under the unexplained wealth legislation of the participating State or self-governing Territory concerned;

(b) a document relevant to identifying or locating any document necessary for the transfer of property of such a person;

(c) a document that would assist in the reading or interpretation of a document referred to in paragraph (a) or (b).

2 Contents of production orders

(1) A *production order must:

(a) specify the nature of the documents required; and

(b) specify the place at which the person must produce the documents or make the documents available; and

(c) specify the time at which, or the times between which, this must be done; and

(d) specify the form and manner in which those documents are to be produced; and

(e) specify the name of the *authorised State/Territory officer of the State or Territory who, unless he or she inserts the name of another authorised State/Territory officer of the State or Territory in the order, is to be responsible for giving the order to the person; and

(f) if the order specifies that information about the order must not be disclosed - set out the effect of clause 9 (disclosing existence or nature of production orders); and

(g) set out the effect of clause 10 (failing to comply with an order).

(2) The time or times specified under paragraph (1)(c) must be:

(a) at least 14 days after the day on which the *production order is made; or

(b) if the magistrate who makes the production order is satisfied that it is appropriate, having regard to the matters specified in subclause (3), to specify an earlier time - at least 3 days after the day on which the production order is made.

(3) The matters to which the magistrate must have regard for the purposes of deciding whether an earlier time is appropriate under paragraph (2)(b) are:

(a) the urgency of the situation; and

(b) any hardship that may be caused to the person required by the *production order to produce documents or make documents available.

3 Powers under production orders

The *authorised State/Territory officer may inspect, take extracts from, or make copies of, a document produced or made available under a *production order.

4 Retaining produced documents

(1) The *authorised State/Territory officer may also retain a document produced under a *production order for as long as is necessary for the purposes of the *unexplained wealth legislation of the *participating State or *self-governing Territory concerned.

(2) The person to whom a *production order is given may require the *authorised State/Territory officer to:

(a) certify in writing a copy of the document retained to be a true copy and give the person the copy; or

(b) allow the person to do one or more of the following:

(i) inspect the document;

(ii) take extracts from the document;

(iii) make copies of the document.

5 Privilege against self-incrimination etc. does not apply

(1) A person is not excused from producing a document or making a document available under a *production order on the ground that producing the document or making it available:

(a) would tend to incriminate the person or expose the person to a penalty; or

(b) would breach an obligation (whether imposed by an enactment or otherwise) of the person not to disclose the existence or contents of the document; or

(c) would disclose information that is the subject of *legal professional privilege.

(2) However, in the case of a natural person, the document is not admissible in evidence in a *criminal proceeding against the person, except in proceedings under, or arising out of, section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to producing the document or making it available.

6 Varying production orders

(1) A person who is required to produce a document to an *authorised State/Territory officer under a *production order may apply to:

(a) the magistrate who made the order; or

(b) if that magistrate is unavailable - any other magistrate;

to vary the order so that it instead requires the person to make the document available for inspection.

(2) The magistrate may vary the *production order if satisfied that the document is essential to the person's business activities.

7 Jurisdiction of magistrates

A magistrate in a State or a *self-governing Territory may issue a *production order relating to one or more documents that are located in:

(a) that State or Territory; or

(b) another State or self-governing Territory if he or she is satisfied that there are special circumstances that make the issue of the order appropriate; or

(c) a *non-governing Territory.

8 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 *production order.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

9 Disclosing existence or nature of production orders

(1) A person commits an offence if:

(a) the person is given a *production order; and

(b) the order specifies that information about the order must not be disclosed; and

(c) the person discloses the existence or nature of the order to another person.

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

(2) A person commits an offence if:

(a) the person is given a *production order; and

(b) the order specifies that information about the order must not be disclosed; and

(c) the person discloses information to another person; and

(d) that other person could infer the existence or nature of the order from that information.

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

(3) Subclauses (1) and (2) do not apply if:

(a) the person discloses the information to an employee, *agent or other person in order to obtain a document that is required by the *production order in order to comply with it, and that other person is directed not to inform the person to whom the document relates about the matter; or

(b) the disclosure is made to obtain legal advice or legal representation in relation to the order; or

(c) the disclosure is made for the purposes of, or in the course of, legal proceedings.

Note: A defendant bears an evidential burden in relation to the matters in subclause (3): see subsection 13.3(3) of the Criminal Code.

10 Failing to comply with production orders

(1) A person commits an offence if:

(a) the person is given a *production order; and

(b) the person fails to comply with the order; and

(c) the person has not been notified of sufficient compliance under subclause (2).

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Note: Sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.

(2) A person is notified of sufficient compliance under this subclause if:

(a) the person gives an *authorised State/Territory officer of the *participating State or *self-governing Territory concerned a statutory declaration stating that the person does not have possession or control of the document specified in the *production order; and

(b) the officer notifies the person in writing that the statutory declaration is sufficient compliance with the order.

(3) It is a defence to an offence against subclause (1) if:

(a) the person fails to comply with the *production order only because the person does not produce the document specified in the order within the time specified in the order; and

(b) the person took all reasonable steps to produce the document within that time; and

(c) the person produces the document as soon as practicable after that time.

Note: A defendant bears an evidential burden in relation to the matters in subclause (3) (see subsection 13.3(3) of the Criminal Code).

11 Destroying etc. documents subject to production orders

A person commits an offence if:

(a) the person destroys, defaces or otherwise interferes with a document; and

(b) a *production order is in force requiring the document to be produced or made available.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Part 2 - Notices to financial institutions

12 Giving notices to financial institutions

(1) An official specified in subclause (3) of a *participating State or *self-governing Territory may give a written notice to a *financial institution requiring the institution to provide to an *authorised State/Territory officer of the participating State or the Territory any information or documents relevant to any one or more of the following:

(a) determining whether an *account is or was held by a specified person with the financial institution;

(b) determining whether a particular person is or was a signatory to an account;

(c) if a person holds an account with the institution, the current balance of the account;

(d) details of transactions on an account over a specified period of up to 6 months;

(e) details of any related accounts (including names of those who hold or held those accounts);

(f) determining whether a *stored value card was issued to a specified person by a financial institution;

(g) details of transactions made using such a card over a specified period of up to 6 months;

(h) a transaction conducted by the financial institution on behalf of a specified person.

(2) The official must not issue the notice unless the official reasonably believes that giving the notice is required:

(a) to determine whether to take any action under the *unexplained wealth legislation of the State or Territory; or

(b) in relation to proceedings under the unexplained wealth legislation of the State or Territory.

(3) The officials of a *participating State or *self-governing Territory who may give a notice to a *financial institution are:

(a) the Commissioner or head (however described) of the police force or police service of the State or Territory; or

(b) the Director of Public Prosecutions, or a person performing a similar function, appointed under a law of the State or Territory; or

(c) if New South Wales is a participating State - the Commissioner and Assistant Commissioners of the New South Wales Crimes Commission; or

(d) for a self-governing Territory - a person of a kind prescribed by the regulations in relation to the Territory.

13 Contents of notices to financial institutions

(1) The notice must:

(a) state that the official giving the notice believes that the notice is required:

(i) to determine whether to take any action under the *unexplained wealth legislation of the State or Territory; or

(ii) in relation to proceedings under the unexplained wealth legislation of the State or Territory; and

(b) specify the name of the *financial institution; and

(c) specify the kind of information or documents required to be provided; and

(d) specify the form and manner in which that information or those documents are to be provided, having regard to the record-keeping capabilities of the financial institution (to the extent known to the official); and

(e) specify that the information or documents must be provided no later than:

(i) 14 days after the giving of the notice; or

(ii) if the official giving the notice believes that it is appropriate, having regard to the matters specified in subclause (2), to specify an earlier day that is at least 3 days after the giving of the notice - that earlier day; and

(f) if the notice specifies that information about the notice must not be disclosed - set out the effect of clause 16 (disclosing existence or nature of a notice); and

(g) set out the effect of clause 17 (failing to comply with a notice).

(2) The matters to which the official giving the notice must have regard in deciding whether to specify an earlier day under subparagraph (1)(e)(ii) are:

(a) the urgency of the situation; and

(b) any hardship that may be caused to the *financial institution required by the notice to provide the information or documents.

14 Protection from suits etc. for those complying with notices

(1) No action, suit or proceeding lies against:

(a) a *financial institution; or

(b) an *officer, employee 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 under a notice under clause 12 or in the mistaken belief that action was required under the notice.

(2) A *financial institution, or person who is an *officer, employee or *agent of a financial institution, who provides information under a notice under clause 12 is taken, for the purposes of Part 10.2 of the Criminal Code (offences relating to money-laundering), not to have been in possession of that information at any time.

15 Making false statements in notices

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, a notice under clause 12.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

16 Disclosing existence or nature of notices

A person commits an offence if:

(a) the person is given a notice under clause 12; and

(b) the notice specifies that information about the notice must not be disclosed; and

(c) the person discloses the existence or nature of the notice.

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

17 Failing to comply with notices

(1) A person commits an offence if:

(a) the person is given a notice under clause 12; and

(b) the person fails to comply with the notice.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

Note: Sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.

(2) It is a defence to an offence against subclause (1) if:

(a) the person fails to comply with the notice only because the person does not provide the information or a document within the period specified in the notice; and

(b) the person took all reasonable steps to provide the information or document within that period; and

(c) the person provides the information or document as soon as practicable after the end of that period.

Note: A defendant bears an evidential burden in relation to the matters in subclause (2) (see subsection 13.3(3) of the Criminal Code).

Part 3 - Disclosure of information

18 Disclosure

(1) This clause applies if a person obtains information:

(a) as a direct result of the exercise of a power (by the person or someone else), or performance (by the person) of a function, under Part 1 or 2; or

(b) as a result of a disclosure, or a series of disclosures, under this clause.

(2) The person may disclose the information to an authority described in an item of the following table for a purpose described in that item if:

(a) the person believes on reasonable grounds that the disclosure will serve that purpose; and

(b) a court has not made an order prohibiting the disclosure of the information to the authority for that purpose.

(3) In a *criminal proceeding against a person who produced or made available a document under a *production order, none of the following that is disclosed under this clause is admissible in evidence against the person:

(a) the document;

(b) information contained in the document.

(4) Subclause (3) does not apply in a proceeding under, or arising out of, section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to producing the document or making it available.

Note: Subclauses (3) and (4) reflect subclause 5(2).

(5) To avoid doubt:

(a) this clause does not prohibit the disclosure under section 266A of any information disclosed under this clause; and

(b) this clause does not affect the admissibility in evidence of any information, document or thing obtained as an indirect consequence of a disclosure under this clause.

19 Parliamentary supervision of the operation of this Schedule

(1) The operation of this Schedule is subject to the oversight of the Parliamentary Joint Committee on Law Enforcement.

(2) The Committee may require an authority of a *participating State or *self-governing Territory that is the recipient of any information disclosed as the result of the operation of this Schedule to appear before it from time to time to give evidence.

20 Reports about the operation of this Schedule

(1) The Commissioner or head (however described) of a police force or police service of a *participating State or *self-governing Territory must give the Minister a written report in respect of each financial year that contains the following information:

(a) the number and results of applications for *production orders under clause 1 in the year by an *authorised State/Territory officer of the State or Territory;

(b) the number of notices to *financial institutions issued under clause 12 in the year by an official specified in subclause 12(3) of the State or Territory;

(c) any other information of a kind prescribed by the regulations.

(2) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.