Crimes Legislation Amendment (Serious and Organised Crime) Act 2010

(3 of 2010)

An Act to amend various Acts relating to the enforcement of the criminal law, and for other purposes

[Assented to 19 February 2010]

The Parliament of Australia enacts:

[Minister's second reading speech made in - House of Representatives on 24 June 2009, Senate on 23 November 2009]

1 Short title

This Act may be cited as theCrimes Legislation Amendment (Serious and Organised Crime) Act 2010.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table	The day on which this Act receives the Royal Assent.	19 February 2010
2. Schedule 1	The day on which this Act receives the Royal Assent.	19 February 2010
3. Schedule 2, Parts 1 to 4	The day after this Act receives the Royal Assent.	20 February 2010
4. Schedule 2, Part 5	On the day after the end of the period of 3 months beginning on the day on which this Act receives the Royal Assent.	19 May 2010
5. Schedule 2, Parts 6 and 7	The day after this Act receives the Royal Assent.	20 February 2010
6. Schedule 3	The day on which this Act receives the Royal Assent.	19 February 2010
7. Schedule 4, Part 1	The day after this Act receives the Royal Assent.	20 February 2010
8. Schedule 4, Parts 2 and 3	The day on which this Act receives the Royal Assent.	19 February 2010

Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 Unexplained wealth

Part 1 Main amendments

Proceeds of Crime Act 2002

1 After paragraph 5(b)

Insert:

(ba) to deprive persons of *unexplained wealth amounts that the person cannot satisfy a court were not derived from certain offences; and

2 Paragraph 5(d)

Omit "and literary proceeds", substitute ", literary proceeds and unexplained wealth amounts".

3 Paragraph 5(e)

Omit "and literary proceeds", substitute ", literary proceeds and unexplained wealth amounts".

4 At the end of section 7

Add:

; and (f) unexplained wealth orders requiring payment of unexplained wealth amounts (see Part 2-6).

5 After section 20

Insert:

20A Restraining orders - unexplained wealth

When a restraining order must be made

(1) A court with *proceeds jurisdiction may order that:

(a) property must not be disposed of or otherwise dealt with by any person; or

(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

if:

(d) there are reasonable grounds to suspect that a person's *total wealth exceeds the value of the person's *wealth that was *lawfully acquired; and

(e) any affidavit requirements in subsection (3) for the application have been met; and

(f) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds; and

(g) there are reasonable grounds to suspect either or both of the following:

(i) that the person has committed an offence against a law of the Commonwealth, a *foreign indictable offence or a *State offence that has a federal aspect;

(ii) that the whole or any part of the person's wealth was derived from an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect.

Property that a restraining order may cover

(2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:

(a) all or specified property of the *suspect;

(b) all or specified *bankruptcy property of the suspect;

(d) all bankruptcy property of the suspect other than specified bankruptcy property;

(e) specified property of another person (whether or not that other person's identity is known) that is subject to the *effective control of the suspect.

Affidavit requirements

(3) The application for the order must be supported by an affidavit of an *authorised officer stating:

(a) that the authorised officer suspects that the *total wealth of the *suspect exceeds the value of the suspect's *wealth that was *lawfully acquired; and

(b) if the application is to restrain property of a person other than the suspect but not to restrain *bankruptcy property of the *suspect - that the authorised officer suspects that the property is subject to the *effective control of the suspect; and

(i) that the suspect has committed an offence against a law of the Commonwealth, a *foreign indictable offence or a *State offence that has a federal aspect;

(ii) that the whole or any part of the suspect's wealth was derived from an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect.

The affidavit must include the grounds on which the authorised officer holds those suspicions.

Legal expenses

(3A) Without limiting the manner and circumstances that may be specified in an order under paragraph (1)(b), the court may order that specified property may be disposed of or otherwise dealt with for the purposes of meeting a person's reasonable legal expenses arising from an application under this Act.

(3B) The court may make an order under subsection (3A) despite anything in section 24.

(3C) The court may require that a costs assessor certify that legal expenses have been properly incurred before permitting the payment of expenses from the disposal of any property covered by an order under subsection (3A) and may make any further or ancillary orders it considers appropriate.

Refusal to make a restraining order

(4) Despite subsection (1), the court may refuse to make a *restraining order if the court is satisfied that it is not in the public interest to make the order.

Note: A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.

(4A) If the court refuses to make a *restraining order under subsection (1), it may make any order as to costs it considers appropriate, including costs on an indemnity basis.

Risk of property being disposed of etc.

(5) The court may make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.

Later acquisitions of property

(6) The court may specify that a *restraining order covers property that is acquired by the *suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.

6 Subsection 29(1) (note)

Omit "31A", substitute "32".

Note: The heading to section 29 is altered by omitting " a restraining order " and substituting " certain restraining orders ".

7 After section 29

Insert:

29A Court may exclude property from a restraining order made under section 20A

The court to which an application for a *restraining order under section 20A was made may, when the order is made or at a later time, exclude specified property from the order if:

(a) an application is made under section 30 or 31; and

(b) the court is satisfied that:

(i) the property is property of a person other than the *suspect; and

(ii) the property is not subject to the *effective control of the suspect.

Note: Section 32 may prevent the court from hearing the application until the DPP has had a reasonable opportunity to conduct an examination of the applicant.

8 Paragraph 35(1)(a)

After "29", insert "or 29A".

9 Subsection 39(1) (note)

After "Note", insert "1".

10 At the end of subsection 39(1) (after the note)

Add:

Note 2: If there is an unexplained wealth order that relates to a restraining order under section 20A, the court may also order the Official Trustee to pay an amount equal to the unexplained wealth amount out of property covered by the restraining order: see section 282A.

11 At the end of section 45

Add:

(7) To avoid doubt, this section does not apply to a *restraining order made under section 20A.

Note: The heading to section 45 is altered by inserting " certain " before " restraining ".

12 At the end of Division 6 of Part 2-1

Add:

45A Cessation of restraining orders relating to unexplained wealth

(1) A *restraining order made under section 20A ceases to be in force if, within 28 days after the order was made, no application for an *unexplained wealth order has been made in relation to the *suspect to whom the restraining order relates.

(2) A *restraining order made under section 20A ceases to be in force if:

(a) an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and

(b) the application is made within 28 days after the making of the restraining order; and

(d) one of the following applies:

(i) the time for an appeal against the refusal has expired without an appeal being lodged;

(ii) an appeal against the refusal has lapsed;

(iii) an appeal against the refusal has been dismissed and finally disposed of.

(3) A *restraining order made under section 20A ceases to be in force if:

(a) an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and

(b) the application is made within 28 days after the making of the restraining order; and

(d) either:

(i) the unexplained wealth order is complied with; or

(ii) an appeal against the unexplained wealth order has been upheld and finally disposed of.

(4) If a *restraining order ceases under subsection (1) or (2), the court may, on application by a person with an *interest in the property covered by the restraining order, make any order as to costs it considers appropriate, including costs on an indemnity basis.

13 At the end of Chapter 2

Add:

Part 2-6 - Unexplained wealth orders

179A Simplified outline of this Part

This Part provides for the making of certain orders relating to unexplained wealth.

A preliminary unexplained wealth order requires a person to attend court for the purpose of enabling the court to decide whether to make an unexplained wealth order against the person.

An unexplained wealth order is an order requiring the person to pay an amount equal to so much of the person's total wealth as the person cannot satisfy the court is not derived from certain offences.

Division 1 - Making unexplained wealth orders

179B Making an order requiring a person to appear

(1) A court with *proceeds jurisdiction may make an order (a preliminary unexplained wealth order ) requiring a person to appear before the court for the purpose of enabling the court to decide whether or not to make an *unexplained wealth order in relation to the person if:

(a) the *DPP applies for an unexplained wealth order in relation to the person; and

(b) the court is satisfied that an *authorised officer has reasonable grounds to suspect that the person's *total wealth exceeds the value of the person's *wealth that was *lawfully acquired; and

Affidavit requirements

(2) An application for an *unexplained wealth order in relation to a person must be supported by an affidavit of an *authorised officer stating:

(a) the identity of the person; and

(b) that the authorised officer suspects that the person's *total wealth exceeds the value of the person's *wealth that was *lawfully acquired; and

(i) the property the authorised officer knows or reasonably suspects was lawfully acquired by the person;

(ii) the property the authorised officer knows or reasonably suspects is owned by the person or is under the *effective control of the person.

The affidavit must include the grounds on which the authorised officer holds the suspicions referred to in paragraphs (b) and (c).

(3) The court must make the order under subsection (1) without notice having been given to any person if the *DPP requests the court to do so.

179C Application to revoke a preliminary unexplained wealth order

(1) If a court makes a *preliminary unexplained wealth order requiring a person to appear before the court, the person may apply to the court to revoke the order.

(2) The application must be made:

(a) within 28 days after the person is notified of the *preliminary unexplained wealth order; or

(b) if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation - within such longer period, not exceeding 3 months, as the court allows.

(4) However, the *preliminary unexplained wealth order remains in force until the court revokes the order.

(5) The court may revoke the *preliminary unexplained wealth order on application under subsection (1) if satisfied that:

(a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or

(b) it is in the public interest to do so; or

179CA Notice and procedure on application to revoke preliminary unexplained wealth order

(1) This section applies if a person applies under section 179C for revocation of a *preliminary unexplained wealth order.

(2) The applicant may appear and adduce material at the hearing of the application.

(3) The applicant must give the *DPP:

(a) written notice of the application; and

(b) a copy of any affidavit supporting the application.

(4) The *DPP may appear and adduce additional material at the hearing of the application.

(5) The *DPP must give the applicant a copy of any affidavit it proposes to rely on to contest the application.

(6) The notice and copies of affidavits must be given under subsections (3) and (5) within a reasonable time before the hearing of the application.

179D Notice of revocation of a preliminary unexplained wealth order

If a *preliminary unexplained wealth order is revoked under section 179C, the *DPP must give written notice of the revocation to the applicant for the revocation.

179E Making an unexplained wealth order

(1) A court with *proceeds jurisdiction may make an order (an unexplained wealth order) requiring a person to pay an amount to the Commonwealth if:

(a) the court has made a *preliminary unexplained wealth order in relation to the person; and

(b) the court is not satisfied that the whole or any part of the person's *wealth was not derived from one or more of the following:

(i) an offence against a law of the Commonwealth;

(ii) a *foreign indictable offence;

(iii) a *State offence that has a federal aspect.

(2) The court must specify in the order that the person is liable to pay to the Commonwealth an amount (the person's unexplained wealth amount ) equal to the amount that, in the opinion of the court, is the difference between:

(a) the person's *total wealth; and

(b) the sum of the values of the property that the court is satisfied was not derived from one or more of the following:

(i) an offence against a law of the Commonwealth;

(ii) a *foreign indictable offence;

(iii) a *State offence that has a federal aspect;

reduced by any amount deducted under section 179J (reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc.).

(3) In proceedings under this section, the burden of proving that a person's *wealth is not derived from one or more of the offences referred to in paragraph (1)(b) lies on the person.

(4) To avoid doubt, when considering whether to make an order under subsection (1), the court may have regard to information not included in the application.

(5) To avoid doubt, subsection (3) has effect despite section 317.

(6) Despite subsection (1), the court may refuse to make an order under that subsection if the court is satisfied that it is not in the public interest to make the order.

179EA Refusal to make an order for failure to give undertaking

(1) The court may refuse to make a *preliminary unexplained wealth order or an *unexplained wealth order if the Commonwealth refuses or fails to give the court an appropriate undertaking with respect to the payment of damages or costs, or both, for the making and operation of the order.

(2) The *DPP may give such an undertaking on behalf of the Commonwealth.

179EB Costs

If the court refuses to make a *preliminary unexplained wealth order or an *unexplained wealth order, it may make any order as to costs it considers appropriate, including costs on an indemnity basis.

179F Ancillary orders

(1) A court that makes an *unexplained wealth order, or any other court that could have made the unexplained wealth order, may make orders ancillary to the order, either when the order is made or at a later time.

(2) A court that makes a *preliminary unexplained wealth order, or any other court that could have made the order, may make orders ancillary to the order, either when the order is made or at a later time.

Division 2 - Unexplained wealth amounts

179G Determining unexplained wealth amounts

Meaning of wealth

(1) The property of a person that, taken together, constitutes the wealth of a person for the purposes of this Part is:

(a) property owned by the person at any time;

(b) property that has been under the *effective control of the person at any time;

including property owned, effectively controlled, disposed of or consumed before the commencement of this Part.

Meaning of total wealth

(2) The total wealth of a person is the sum of all of the values of the property that constitutes the person's wealth.

Value of property

(3) The value of any property that has been disposed of or consumed, or that is for any other reason no longer available, is the greater of:

(a) the value of the property at the time it was acquired; and

(b) the value of the property immediately before it was disposed of, consumed or stopped being available.

(4) The value of any other property is the greater of:

(a) the value of the property at the time it was acquired; and

(b) the value of the property on the day that the application for the *unexplained wealth order was made.

179H Effect of property vesting in an insolvency trustee

In assessing the value of property of a person, property is taken to continue to be the *person's property if it vests in any of the following:

(a) in relation to a bankruptcy - the trustee of the estate of the bankrupt;

(b) in relation to a composition or scheme of arrangement under Division 6 of Part IV of the Bankruptcy Act 1966 - the trustee of the composition or scheme of arrangement;

(c) in relation to a personal insolvency agreement under Part X of the Bankruptcy Act 1966 - the trustee of the agreement;

(d) in relation to the estate of a deceased person in respect of which an order has been made under Part XI of the Bankruptcy Act 1966 - the trustee of the estate.

179J Reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc.

In determining the *unexplained wealth amount specified in an *unexplained wealth order in relation to a person, the court must deduct an amount equal to the following:

(a) the value, at the time of making the order, of any property of the person forfeited under:

(i) a *forfeiture order; or

(ii) an *interstate forfeiture order; or

(iii) a *foreign forfeiture order;

(b) the sum of any amounts payable by the person under:

(i) a *pecuniary penalty order; or

(ii) a *literary proceeds order; or

(iii) an order under section 243B of the Customs Act 1901; or

(iv) an *interstate pecuniary penalty order; or

(v) a *foreign pecuniary penalty order.

179K Varying unexplained wealth orders to increase amounts

(1) The court may, on the application of the *DPP, vary an *unexplained wealth order against a person by increasing the *unexplained wealth amount if subsection (2) or (3) applies. The amount of the increase is as specified in subsection (2) or (3).

(2) The *unexplained wealth amount may be increased if:

(a) the value of property of the person forfeited under a *forfeiture order, an *interstate forfeiture order or a *foreign forfeiture order was deducted from the unexplained wealth amount under paragraph 179J(a); and

(b) an appeal against the forfeiture, or against the order, is allowed.

The amount of the increase is equal to the value of the property.

(3) The *unexplained wealth amount may be increased if:

(a) an amount payable under a *pecuniary penalty order, a *literary proceeds order, an order under section 243B of the Customs Act 1901, an *interstate pecuniary penalty order or a *foreign pecuniary penalty order was deducted from the *unexplained wealth amount under paragraph 179J(b); and

(b) an appeal against the amount payable, or against the order, is allowed.

The amount of the increase is equal to the amount that was payable.

(4) The *DPP's application may deal with more than one increase to the same *unexplained wealth amount.

179L Relieving certain dependants from hardship

(1) The court making an *unexplained wealth order in relation to a person must make another order directing the Commonwealth, once the unexplained wealth order is satisfied, to pay a specified amount to a *dependant of the person if the court is satisfied that:

(a) the unexplained wealth order would cause hardship to the dependant; and

(b) the specified amount would relieve that hardship; and

(c) if the dependant is aged at least 18 years - the dependant had no knowledge of the person's conduct that is the subject of the unexplained wealth order.

(2) The specified amount must not exceed the person's *unexplained wealth amount.

(3) An order under this section may relate to more than one of the person's *dependants.

Division 3 - How unexplained wealth orders are obtained

179M DPP may apply for an unexplained wealth order

The *DPP may apply for an *unexplained wealth order.

179N Notice of application

(1) This section sets out the notice requirements if the *DPP has made an application for an *unexplained wealth order.

(2) If a court with *proceeds jurisdiction makes a *preliminary unexplained wealth order in relation to the person, the *DPP must, within 7 days of the making of the order:

(a) give written notice of the order to the person who would be subject tothe *unexplained wealth order if it were made; and

(b) provide to the person a copy of the application for the unexplained wealth order, and the affidavit referred to in subsection 179B(2).

(3) The *DPP must also give a copy of any other affidavit supporting the application to the person who would be subject to the *unexplained wealth order if it were made.

(4) The copies must be given under subsection (3) within a reasonable time before the hearing in relation to whether the order is to be made.

179P Additional application for an unexplained wealth order

(1) The *DPP cannot, unless the court gives leave, apply for an *unexplained wealth order against a person if:

(a) an application has previously been made for an unexplained wealth order in relation to the person; and

(b) the application has been finally determined on the merits.

(2) The court must not give leave unless it is satisfied that:

(a) the *wealth to which the new application relates was identified only after the first application was determined; or

(b) necessary evidence became available only after the first application was determined; or

179Q Procedure on application and other notice requirements

(1) The person who would be subject to an *unexplained wealth order if it were made may appear and adduce evidence at the hearing in relation to whether the order is to be made.

(2) The person must give the *DPP written notice of any grounds on which he or she proposes to contest the making of the order.

(3) The *DPP may appear and adduce evidence at the hearing in relation to whether an *unexplained wealth order is to be made.

Division 4 - Enforcement of unexplained wealth orders

179R Enforcement of an unexplained wealth order

(1) An amount payable by a person to the Commonwealth under an *unexplained wealth order is a civil debt due by the person to the Commonwealth.

(2) An *unexplained wealth order against a person may be enforced as if it were an order made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.

(3) The debt arising from the order is taken to be a judgment debt.

(4) If an *unexplained wealth order is made against a person after the person's death, this section has effect as if the person had died on the day after the order was made.

179S Property subject to a person's effective control

(1) If:

(a) a person is subject to an *unexplained wealth order; and

(b) the *DPP applies to the court for an order under this section; and

the court may make an order declaring that the whole, or a specified part, of that property is available to satisfy the unexplained wealth order.

(2) The order under subsection (1) may be enforced against the property as if the property were the *person's property.

(3) A *restraining order may be made in respect of the property as if:

(a) the property were the *person's property; and

(b) there were reasonable grounds to suspect that:

(i) the person had committed an offence against a law of the Commonwealth, a *foreign indictable offence or a *State offence that has a federal aspect;

(ii) the whole or any part of the person's wealth was derived from an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect.

(4) If the *DPP applies for an order under subsection (1) relating to particular property, the DPP must give written notice of the application to:

(a) the person who is subject to the *unexplained wealth order; and

(b) any person whom the DPP has reason to believe may have an *interest in the property.

(5) The person who is subject to the *unexplained wealth order, and any person who claims an *interest in the property, may appear and adduce evidence at the hearing of the application.

179SA Legal expenses

(1) If the court considers that it is appropriate to do so, it may order that the whole, or a specified part, of specified property covered by an order under subsection 179S(1) is not available to satisfy the *unexplained wealth order and may instead be disposed of or otherwise dealt with for the purposes of meeting a person's reasonable legal expenses arising from an application under this Act.

(2) The court may require that a costs assessor certify that legal expenses have been properly incurred before permitting the payment of expenses from the disposal of any property covered by an order under subsection (1) and may make any further or ancillary orders it considers appropriate.

179T Amounts exceeding the court's jurisdiction

(1) If:

(a) a court makes an *unexplained wealth order of a particular amount; and

(b) the court does not have jurisdiction with respect to the recovery of debts of an amount equal to that amount;

the registrar of the court must issue a certificate containing the particulars specified in the regulations.

(2) The certificate may be registered, in accordance with the regulations, in a court having jurisdiction with respect to the recovery of debts of an amount equal to the amount of the relevant order.

(3) Upon registration in a court, the certificate is enforceable in all respects as a final judgment of the court in favour of the Commonwealth.

Division 5 - Oversight

179U Parliamentary supervision

(1) The operation of this Part and section 20A is subject to the oversight of the Parliamentary Joint Committee on the Australian Crime Commission (the Committee ).

(2) The Committee may require the Australian Crime Commission, the Australian Federal Police, the *DPP or any other federal agency or authority that is the recipient of any material disclosed as the result of the operation of this Part to appear before it from time to time to give evidence.

14 After paragraph 202(5)(e)

Insert:

(ea) a document relevant to identifying, locating or quantifying the property of a person, if it is reasonable to suspect that the total value of the person's *wealth exceeds the value of the person's wealth that was *lawfully acquired;

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

15 Paragraph 202(5)(f)

Omit "or (e)", substitute "(e), (ea) or (eb)".

16 After section 282

Insert:

282A Direction by a court to the Official Trustee in relation to unexplained wealth orders

(1) A court may, if subsection (2), (3) or (4) applies, direct the *Official Trustee to pay the Commonwealth, out of property that is subject to a *restraining order under section 20A, an amount equal to the *unexplained wealth amount made under an *unexplained wealth order in relation to a person.

(2) The court that makes the *unexplained wealth order may include such a direction in the order if the *restraining order:

(a) has already been made against the person; and

(b) relates to property that constitutes part of the person's *total wealth.

(3) The court that makes the *restraining order may include such a direction in the order if:

(a) the *unexplained wealth order has been made against the person; and

(b) the restraining order is subsequently made:

(i) against the person under section 20A; or

(ii) against property of another person in relation to which an order is in force under section 179S in relation to the unexplained wealth order.

(4) The court that made the *unexplained wealth order or the *restraining order may, on application by the *DPP, make the direction if:

(a) the unexplained wealth order has been made against the person; and

(b) the restraining order has been made:

(i) against the person under section 20A; or

(ii) against property of another person in relation to which an order is in force under section 179S in relation to the unexplained wealth order.

Note: The heading to section 282 is altered by adding at the end " in relation to certain restraining orders ".

17 Subsections 283(1) and 284(1)

After "282", insert "or 282A".

18 Subsection 284(2)

Omit "or *literary proceeds amount", substitute ", *literary proceeds amount or *unexplained wealth amount".

19 Paragraph 284(2)(a)

Omit "or literary proceeds amount", substitute ", literary proceeds amount or unexplained wealth amount".

20 Subsection 285(1)

After "282", insert "or 282A".

21 Subsection 285(2)(a)

Omit "or *literary proceeds order", substitute ", *literary proceeds order or *unexplained wealth order".

22 Subsection 285(2)(b)

Omit "or literary proceeds order", substitute ", literary proceeds order or unexplained wealth order".

23 At the end of section 286

Add:

(3) If the *Official Trustee credits, under this Division, money to the *Confiscated Assets Account as required by section 296 in satisfaction of a person's liability under an *unexplained wealth order, the person's liability under the unexplained wealth order is, to the extent of the credit, discharged.

24 After paragraph 296(3)(f)

Insert:

(fa) the amount referred to in subsection 179R(1);

25 Paragraph 322(1)(c)

Omit all the words from and including "or 168" to and including "proceeds", substitute ", 168 or 179S to satisfy a *pecuniary penalty order, a *literary proceeds order or an *unexplained wealth".

26 Subsection 322(1)

Omit "or 168" (second occurring), substitute ", 168 or 179S".

27 After subsection 322(4)

Insert:

(4A) Despite subsections (2) and (3), in the case of an *unexplained wealth order, or an order under section 179S that relates to an unexplained wealth order, the person may appeal against the targeted order in the same manner as if:

(a) the person had been convicted of one of the following:

(i) an offence against a law of the Commonwealth;

(ii) a *foreign indictable offence;

(iii) a *State offence that has a federal aspect; and

(b) the targeted order were, or were part of, the sentence imposed on the person in respect of the offence.

28 Subsection 335(1)

After "order" (first occurring), insert ", other than a *preliminary unexplained wealth order or an *unexplained wealth order,".

29 At the end of section 335

Add:

Preliminary unexplained wealth orders and unexplained wealth orders

(7) The courts that have proceeds jurisdiction for a *preliminary unexplained wealth order or an *unexplained wealth order are those of any State or Territory with jurisdiction to deal with criminal matters on indictment.

30 Section 336

Omit "or *literary proceeds", substitute ", *literary proceeds or *wealth".

31 Section 336

Omit "or literary proceeds", substitute ", literary proceeds or wealth".

32 After section 336

Insert:

336A Meaning of property or wealth being lawfully acquired

For the purposes of this Act, property or *wealth is lawfully acquired only if:

(a) the property or wealth was lawfully acquired; and

(b) the consideration given for the property or wealth was lawfully acquired.

33 Section 338 (definition of confiscation order )

Omit "or a *literary proceeds order", substitute ", a *literary proceeds order or an *unexplained wealth order".

34 Section 338

Insert:

lawfully acquired has a meaning affected by section 336A.

35 Section 338

Insert:

preliminary unexplained wealth order , in relation to a person, means an order under section 179B requiring the person to appear before a court.

36 Section 338 (definition of restraining order )

Omit "or 20", substitute "20 or 20A".

37 Section 338

Insert:

State offence that has a federal aspect has the same meaning as in the Crimes Act 1914.

Note: Section 3AA of the Crimes Act 1914 sets out when a State offence has a federal aspect.

38 Section 338 (definition of suspect )

Insert:

suspect means:

(a) in relation to a *restraining order (other than a restraining order made under section 20A) or a *confiscation order (other than an *unexplained wealth order) - the person who:

(i) has been convicted of; or

(ii) has been *charged with, or is proposed to be charged with; or

(iii) if the order is a restraining order - is suspected of having committed; or

(iv) if the order is a confiscation order - committed;

the offence or offences to which the order relates; or

(b) in relation to a restraining order made under section 20A or an unexplained wealth order - the person whose *total wealth is suspected of exceeding the value of *wealth that was *lawfully acquired.

39 Section 338

Insert:

total wealth , of a person, has the meaning given by subsection 179G(2).

40 Section 338

Insert:

unexplained wealth amount , of a person, has the meaning given by subsection 179E(2).

41 Section 338

Insert:

unexplained wealth order means an order made under subsection 179E(1) that is in force.

42 Section 338

Insert:

wealth , of a person, has the meaning given by subsection 179G(1).

Part 2 Related amendments

Bankruptcy Act 1966

43 Subsection 5(1) (at the end of the definition of pecuniary penalty order )

Add:

; or (c) an unexplained wealth order within the meaning of the Proceeds of Crime Act 2002.

Crimes Act 1914

44 Subparagraph 3(2)(a)(ii)

Omit "or a literary proceeds order", substitute ", a literary proceeds order or an unexplained wealth order".

Schedule 2 Other amendments relating to proceeds of crime

Part 1 Freezing orders

Division 1 Main amendments

Proceeds of Crime Act 2002

1 Section 7

Omit "5", substitute "a number of".

2 Before paragraph 7(a)

Insert:

(aa) freezing orders limiting withdrawals from accounts with financial institutions before courts decide applications for restraining orders to cover the accounts (see Part 2-1A); and

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

(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.

(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

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

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

(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

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

Division 3 - Givingeffect 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

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;

(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.

4 Paragraph 337A(1)(a)

After "for a", insert "*freezing order,".

5 Paragraph 337A(2)(a)

After "for a", insert "*freezing order or".

6 Section 338

Insert:

freezing order means an order under section 15B, with any variations under section 15Q.

7 Section 338

Insert:

working day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the place concerned.

8 Application

Part 2-1A of the Proceeds of Crime Act 2002 applies in relation to an account if there are reasonable grounds to suspect that the balance of the account:

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

(b) is wholly or partly an instrument of a serious offence;

whether the conduct constituting the offence occurs before, on or after the commencement of that Part.

Division 2 Related amendments

Crimes Act 1914

9 Subsection 21E(4) (paragraph (a) of the definition of confiscation proceedings)

After "for", insert "freezing orders,".

Family Law Act 1975

10 Subsection 4(1) (before paragraph (a) of the definition of proceeds of crime order )

Insert:

(aa) a freezing order under the Proceeds of Crime Act 2002; or

Part 2 Removal of 6-year time limit

Proceeds of Crime Act 2002

11 Paragraph 18(1)(d)

Repeal the paragraph, substitute:

(d) there are reasonable grounds to suspect that a person has committed a *serious offence; and

12 Paragraph 18(3)(a)

Repeal the paragraph, substitute:

(a) that the authorised officer suspects that the *suspect committed the offence; and

13 At the end of subparagraph 19(1)(d)(ii)

Add "and".

14 Paragraph 19(1)(d)

Omit "and, if the offence is not a terrorism offence, that the offence was committed within the 6 years preceding the application, or since the application was made; and".

15 Application of amendments of sections 18 and 19

The amendments of sections 18 and 19 of the Proceeds of Crime Act 2002 made by this Part apply in relation to applications made on or after the commencement of the amendments for a restraining order, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

16 Paragraph 47(1)(c)

Repeal the paragraph, substitute:

(c) the court is satisfied that a person whose conduct or suspected conduct formed the basis of the restraining order engaged in conduct constituting one or more *serious offences.

17 Paragraph 49(1)(d)

Repeal the paragraph.

18 Application of amendments of sections 47 and 49

The amendments of sections 47 and 49 of the Proceeds of Crime Act 2002 made by this Part apply in relation to applications made on or after the commencement of the amendments for a forfeiture order, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

19 Subsection 84(1)

Omit "(1)".

20 Subsection 84(2)

Repeal the subsection.

21 Subsection 85(1)

Omit "84(1)(a)", substitute "84(a)".

22 Subsection 85(2)

Omit "84(1)(b)", substitute "84(b)".

23 Subsection 110(1)

Omit "(1)".

24 Subsection 110(2)

Repeal the subsection.

25 Subsection 111(1)

Omit "110(1)(a)", substitute "110(a)".

26 Subsection 111(2)

Omit "110(1)(b)", substitute "110(b)".

27 Subparagraph 116(1)(b)(ii)

Omit "subject to subsection (2),".

28 Subsection 116(2)

Repeal the subsection.

29 Application of amendments of section 116

The amendments of section 116 of the Proceeds of Crime Act 2002 made by this Part apply in relation to applications made on or after the commencement of the amendments for a pecuniary penalty order, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

30 Section 149

Repeal the section, substitute:

149 Court may confirm pecuniary penalty order

The court may confirm the *pecuniary penalty order if the court is satisfied that, when the *DPP applied for the order, the court could have made the order without relying on the person's conviction that was *quashed.

31 Application of new section 149

Section 149 of the Proceeds of Crime Act 2002 as amended by this Part applies in relation to pecuniary penalty orders applied for after the commencement of that section, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

32 Subparagraphs 202(5)(a)(ii) and (iii)

Repeal the subparagraphs, substitute:

(ii) whom there are reasonable grounds to suspect of having engaged in conduct constituting a *serious offence;

33 Subparagraphs 202(5)(c)(ii) and (iii)

Repeal the subparagraphs, substitute:

(ii) proceeds of a serious offence, or an instrument of a serious offence, that a person is reasonably suspected of having committed;

34 Subsection 202(6)

Omit "or (iii)".

35 Application of amendments of section 202

The amendments of section 202 of the Proceeds of Crime Act 2002 made by this Part apply in relation to production orders applied for on or after the commencement of the amendments, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

36 Section 338 (paragraph (g) of the definition of serious offence )

After "Criminal Code", insert "or former section 5, 7, 7A or 86 of the Crimes Act 1914".

Part 3 Confiscation scheme and instruments of serious offences

Proceeds of Crime Act 2002

37 Subparagraph 18(2)(d)(ii)

Omit "*terrorism", substitute "*serious".

38 Subparagraph 18(3)(b)(iii)

Omit "terrorism", substitute "*serious".

39 Subparagraph 19(1)(d)(ii)

Omit "terrorism", substitute "*serious".

40 Subparagraph 19(1)(e)(ii)

Omit "terrorism", substitute "serious".

41 Paragraph 19(2)(b)

Omit "*terrorism", substitute "*serious".

42 Application of amendments of sections 18 and 19

43 Subparagraph 29(2)(c)(ii)

Omit "a *terrorism", substitute "a serious".

44 Subparagraph 29(2)(c)(ii)

Omit "any terrorism", substitute "any serious".

45 Subparagraph 29(2)(d)(ii)

Omit "a *terrorism", substitute "a serious".

46 Subparagraph 29(2)(d)(ii)

Omit "any terrorism", substitute "any serious".

47 Paragraph 45(6)(ca)

Omit "*terrorism", substitute "*serious".

48 Application of amendments of sections 29 and 45

The amendments of sections 29 and 45 of the Proceeds of Crime Act 2002 made by this Part apply in relation to restraining orders made as a result of an application made on or after the commencement of the amendments, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

49 At the end of section 47

Add:

Refusal to make a forfeiture order

(4) Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:

(a) is an *instrument of a *serious offence other than a *terrorism offence; and

(b) is not *proceeds of an offence;

if the court is satisfied that it is not in the public interest to make the order.

50 Application of new subsection 47(4)

Subsection 47(4) of the Proceeds of Crime Act 2002 applies in relation to the making of an order on or after the commencement of that subsection, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

51 Subparagraph 49(1)(c)(iv)

Omit "*terrorism", substitute "*serious".

52 Application of amendment of subparagraph 49(1)(c)(iv)

The amendment of subparagraph 49(1)(c)(iv) of the Proceeds of Crime Act 2002 made by this Part applies in relation to applications made on or after the commencement of the amendment for a forfeiture order, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

53 At the end of section 49

Add:

Refusal to make a forfeiture order

(4) Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:

(a) is an *instrument of a *serious offence other than a *terrorism offence; and

(b) is not *proceeds of an offence;

if the court is satisfied that it is not in the public interest to make the order.

54 Application of new subsection 49(4)

Subsection 49(4) of the Proceeds of Crime Act 2002 applies in relation to the making of an order on or after the commencement of that subsection, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

55 Subparagraph 73(1)(c)(ii)

Omit "a *terrorism", substitute "a *serious".

56 Subparagraph 73(1)(c)(ii)

Omit "any terrorism", substitute "any serious".

57 Subparagraph 73(1)(d)(iii)

Omit "terrorism" (wherever occurring), substitute "serious".

58 Subparagraph 85(2)(a)(ii)

Omit "*terrorism", substitute "*serious".

59 Subparagraph 85(2)(b)(ii)

Omit "terrorism", substitute "serious".

60 Application of amendments of sections 73 and 85

The amendments of sections 73 and 85 of the Proceeds of Crime Act 2002 made by this Part apply in relation to forfeiture orders applied for on or after the commencement of the amendments, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

61 Subparagraph 111(2)(a)(ii)

Omit "*terrorism", substitute "*serious".

62 Subparagraph 111(2)(b)(ii)

Omit "terrorism", substitute "serious".

63 Application of amendments of section 111

The amendments of section 111 of the Proceeds of Crime Act 2002 made by this Part apply in relation to the quashing, on or after the commencement of the amendments, of a conviction of an offence, whether the conviction occurred before, on or after that commencement.

Part 4 Disclosure of information

Proceeds of Crime Act 2002

64 Section 8

Before "Chapter 3", insert "(1)".

65 At the end of section 8

Add:

(2) Chapter 3 also authorises the disclosure, to certain authorities for certain purposes, of information obtained under that Chapter or certain other provisions (see Part 3-6).

66 At the end of subsection 223(4)

Add:

; (e) a person who is or forms part of an authority with one or more functions under this Act for the purpose of facilitating the authority's performance of its functions under this Act;

(f) a person who is or forms part of an authority of the Commonwealth, or of a State, Territory or foreign country, that has a function of investigating or prosecuting crimes against a law of the Commonwealth, State, Territory or country for the purpose of assisting in the prevention, investigation or prosecution of a crime against that law;

(g) a person in the Australian Taxation Office for the purpose of protecting public revenue.

67 At the end of Chapter 3

Add:

Part 3-6 - Disclosure of information

266A Disclosure

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

(a) as a direct result of:

(i) the person being given a sworn statement under an order made under paragraph 39(1)(d); or

(ii) the exercise of a power (by the person or someone else), or performance (by the person) of a function, under Part 3-1, 3-2, 3-3, 3-4 or 3-5; or

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

(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 the person believes on reasonable grounds that the disclosure will serve that purpose:

Recipients and purposes of disclosure
Item	Authority to which disclosure may be made	Purpose for which disclosure may be made
1	Authority with one or more functions under this Act	Facilitating the authority's performance of its functionsunder this Act
2	Authority of the Commonwealth, or of a State or Territory, that has a function of investigating or prosecuting offences against a law of the Commonwealth, State or Territory	Assisting in the prevention, investigation or prosecution of an offence against that law that is punishable on conviction by imprisonment for at least 3 years or for life
2A	Authority of a foreign country that has a function of investigating or prosecuting offences against a law of the country	Assisting in the prevention, investigation or prosecution of an offence against that law constituted by conduct that, if it occurred in Australia, would constitute an offence against a law of the Commonwealth, or of a State or Territory, punishable on conviction by imprisonment for at least 3 years or for life
3	Australian Taxation Office	Protecting public revenue

Limits on use of information disclosed

(3) In civil or *criminal proceedings against a person who gave an answer or produced a document in an *examination, none of the following that is disclosed under this section is admissible in evidence against the person:

(a) the answer or document;

(b) information contained in the answer or document.

(4) Subsection (3) does not apply in:

(a) *criminal proceedings for giving false or misleading information; or

(b) proceedings on an application under this Act; or

(d) proceedings for enforcement of a *confiscation order; or

(e) civil proceedings for or in respect of a right or liability the document confers or imposes.

Note: Subsections (3) and (4) reflect section 198.

(5) 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 section is admissible in evidence against the person:

(a) the document;

(b) information contained in the document.

(6) Subsection (5) 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: Subsections (5) and (6) reflect subsection 206(2).

(7) To avoid doubt, this section does not affect the admissibility in evidence of any information, document or thing obtained as an indirect consequence of a disclosure under this section.

Relationship with subsection 228(2)

(8) To avoid doubt:

(a) this section does not limit subsection 228(2) (about a *search warrant authorising the *executing officer to make things seized under the warrant available to officers of other *enforcement agencies); and

(b) subsection 228(2) does not limit this section.

Part 5 Legal aid costs

Proceeds of Crime Act 2002

68 Section 292

Repeal the section.

69 Subsections 293(1), (2) and (3)

Repeal the subsections, substitute:

(1) This section applies if:

(a) a *legal aid commission incurred (before, on or after the commencement of this subsection) legal costs for:

(i) representing a person whose property was, at the time of the representation, covered by a *restraining order in proceedings under this Act; or

(ii) representing a person, who was a *suspect at the time of the representation and whose property was at that time covered by a restraining order, in proceedings for defending any criminal charge against the person; and

(b) the commission has given (before, on or after the commencement of this subsection) the *Official Trustee a bill for the costs; and

(2) The *Official Trustee must pay the legal costs (according to the bill) to the *legal aid commission out of the *Confiscated Assets Account, subject to subsection (2A).

(2A) If the *Official Trustee is satisfied that:

(a) the balance of the *Confiscated Assets Account is insufficient to pay the legal costs; and

(b) property of the person is covered by the *restraining order;

the Official Trustee must pay the legal costs (according to the bill) to the *legal aid commission out of that property covered by the order, to the extent possible.

(3) If the *Official Trustee pays an amount to the *legal aid commission under this section and property of the person is covered by a *restraining order, the person must pay the Commonwealth an amount equal to the lesser of the following (or either of them if they are the same):

(a) the amount paid to the legal aid commission;

(b) the value of the person's property covered by the restraining order.

Note: The heading to section 293 is replaced by the heading " Payments to legal aid commissions for representing suspects and other persons ".

70 Division 1 of Part 4-4

Repeal the Division.

71 Application of amendments of Chapter 4

The amendments of Chapter 4 of the Proceeds of Crime Act 2002 made by this Part apply in relation to costs that:

(a) were incurred by legal aid commissions before, on or after the commencement of the amendments; and

(b) if they were incurred before that commencement, had not been paid to the commissions before that commencement.