Crimes Legislation Amendment Act (No. 2) 2011 (174 of 2011)

Schedule 2   Proceeds of crime amendments

Part 1   Responsible authorities for proceeds of crime: the DPP and the AFP

Division 1   Main amendments

Proceeds of Crime Act 2002

3   After section 315A

Insert:

315B Transfer of responsibility for principal orders and applications

Transfer

(1) A *proceeds of crime authority (the transferor authority ) may, with the consent of the other proceeds of crime authority (the transferee authority ), transfer to the other authority responsibility for:

(a) an application for a *principal order (if the order has not been made); or

(b) a principal order.

Note 1: The proceeds of crime authority is the Commissioner of the Australian Federal Police, or the DPP (see the definition of proceeds of crime authority in section 338). Either authority may start and conduct proceedings under this Act.

Note 2: The proceeds of crime authority that applies for a principal order under this Act, or to which responsibility is transferred under this section, is referred to in this Act as the responsible authority (see the definition in section 338).

Note 3: The principal orders under this Act are restraining orders, forfeiture orders, pecuniary penalty orders, literary proceeds orders and unexplained wealth orders (see the definitions of principal order and the individual orders in section 338).

(2) The transferee authority must give a written notice of transfer of responsibility for an application for a *principal order, or for a principal order, to:

(a) in the case of a transfer of responsibility for an application for a principal order:

(i) the court before which proceedings on the application are being heard (or are to be heard); and

(ii) each party (if any) to those proceedings; and

(iii) any court in which proceedings related to the application are being heard, or are to be heard, if the transferee authority considers it appropriate; and

(iv) any person to whom notice of the application has been given; and

(v) the Family Court of Australia, if an application has been made to that court by a *proceeds of crime authority for a stay of proceedings because of the application for the principal order, or that court has given notice to a proceeds of crime authority of a stay having been granted; or

(b) in the case of a transfer of responsibility for a principal order:

(i) the court that made the order; and

(ii) each party (if any) to the proceedings in that court on the application for the order; and

(iii) any court in which proceedings related to the order are being heard, or are to be heard, if the transferee authority considers it appropriate; and

(iv) any person to whom notice of the order, or of the application for the order, has been given; and

(v) the Family Court of Australia, if an application has been made to that court by a proceeds of crime authority for a stay of proceedings because of the order or the application for the order, or that court has given notice to a proceeds of crime authority of a stay having been granted.

Note: Notice is not required to be given in the circumstances mentioned in subsection (4).

(3) It is sufficient compliance with a requirement under subsection (2) to give a person (other than a court) a notice of transfer if the transferee authority takes reasonable steps to give the notice to the person.

(4) The transferee authority for an application for a *restraining order or a *forfeiture order is not required to give any notice of the transfer (other than to the court before which proceedings on the application are being heard):

(a) in the case of an application for a restraining order:

(i) if the court has been requested under subsection 26(4) to consider the application without notice having been given to the person; or

(ii) during a period ordered by the court under subsection 33(3) (delay in giving notice to protect integrity of an investigation or prosecution); or

(b) in the case of an application for a forfeiture order - if the court has, under section 63 (person has absconded), dispensed with the requirement to give notice to the person under subsections 61(1) and 62(3).

Day of effect

(5) A transfer takes effect on the day the following court receives the notice of transfer given under subsection (2):

(a) in the case of a transfer of responsibility for an application for a *principal order - the court before which proceedings on the application are being heard (or are to be heard);

(b) in the case of a transfer of responsibility for a principal order - the court that made the order.

Effects of transfer - proceedings etc.

(6) On and after the day of effect of a transfer of responsibility for an application for a *principal order, or a principal order:

(a) the transferee authority replaces the transferor authority as a party to any applications or proceedings ( related applications or proceedings ) under this or any other Act in relation to, or arising out of, the application or order, or to which the application or order is relevant; and

(b) the transferee authority may (subject to this Act and any other Act) initiate, conduct or respond to any related applications or proceedings; and

(c) the transferee authority is responsible for any functions, powers and duties under this Act, or any other Act, to be performed or exercised by a *responsible authority in relation to all of the following:

(i) the application or the order;

(ii) any related applications or proceedings;

(iii) any order (including a principal order, or another principal order) arising out of related applications or proceedings.

Effects of transfer - as between transferee and transferor authorities

(7) On and after the day of effect of the transfer, the following paragraphs have effect in relation to the application or order and any related applications or proceedings:

(a) the functions, powers and duties of the transferor authority are extinguished (subject to subsection (8));

(b) the transferee authority is bound by the actions of the transferor authority while it was the *responsible authority;

(c) without limiting paragraph (b), the transferee authority is:

(i) bound by any undertakings with respect to the payment of damages or costs, or both, entered into by the transferor authority while it was the responsible authority; and

(ii) liable for any damages or costs awarded by any court against the transferor authority on or after that day, whether or not the damages or costs result from any action (or failure to act) of the transferor authority while it was the responsible authority.

(8) However, the transferor authority continues to be liable on and after the day of effect of the transfer for any damages or costs that had been awarded against the authority, while it was the *responsible authority, in relation to the application or order and any related applications or proceedings.