House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Justice and Customs Senator the Honourable Chris Ellison)

SCHEDULE 7 - TRANSITIONAL AND RELATED MATTERS

These provisions will facilitate the transition from the Proceeds of Crime Act 1987 to the PoC Bill 2002.

Part 1 - Application of the Proceeds of Crime Act 1987

Proceeds of Crime Act 1987

Item 1 This item inserts a definition of 'commencement of the Proceeds of crime Act 2002' into the PoC Act 1987.

Item 2 This item repeals subsection 14(2), which sets out when the DPP can apply for a confiscation order under the PoC Act 1987. That provision is contained in proposed paragraph 14(2)(a). Proposed paragraph 14(2)(b) prohibits the DPP from making an application for a confiscation order after the commencement of the PoC Bill 2002 unless there is already a relevant restraining order in force under the PoC Act 1987. This ensures that no new proceedings are taken under the PoC Act 1987 once the PoC Bill 2002 has commenced.

Item 3 This item amends section 22 of the PoC Act 1987 to provide that where a conviction is quashed after the commencement of the PoC Bill 2002, the effect of that quashing on a proceeds of crime order is to be dealt with under the PoC Bill 2002, not the PoC Act 1987.

Item 4 Section 30 of the PoC Act 1987 provides for the automatic forfeiture of restrained property upon a person's conviction of a serious offence. This item amends section 30 to provide that it only applies where the conviction occurs prior to the commencement of the PoC Bill 2002.

Item 5 This item amends section 32 of the PoC Act 1987 to provide that where a conviction for a serious offence is quashed after the commencement of the PoC Bill 2002, the effect of that quashing on the forfeiture of that person's property is to be dealt with under the PoC Bill 2002, not the PoC Act 1987.

Item 6 Section 35 enables a police officer to search for and seize tainted property. This item amends that section to provide that a police officer cannot do anything under that section after the commencement of the PoC Bill 2002, unless it is done under a warrant which was issued under the PoC Act 1987 before the PoC Bill 2002 commenced.

Item 7 Section 43 of the PoC Act 1987 enables a DPP to apply for a restraining order. This item amends section 43 to prohibit the DPP from applying for a restraining order under that section once the PoC Bill 2002 has commenced. This ensures that all new actions are commenced under the PoC Bill 2002.

Item 8 Paragraph 57(2)(d) sets out that a restraining order ceases to be in force upon acquittal if the person the subject of the order is acquitted of the charge on which the order was based, and is not charged with a related indictable offence by the time of the acquittal. This item amends that subsection to provide that if the PoC Bill 2002 is in force at the time of the acquittal, the restraining order does not cease until 28 days after the acquittal. This reflects the cessation provisions in the PoC Bill 2002, and that civil-based forfeiture proceedings are able to be taken in respect of a person who was acquitted of an offence.

Item 9 Section 66 enables production orders to be applied for and made. This item amends the section to prohibit a police officer to apply for a production order under section 66 after the PoC Bill 2002 has commenced. The PoC Bill 2002 contains its own production order regime.

Item 10 Section 70 enables a police officer to search for and seize property-tracking documents. This item amends that section to provide that a police officer cannot do anything under that section after the commencement of the PoC Bill 2002, unless it is done under a warrant which was issued under the PoC Act 1987 before the PoC Bill 2002 commenced.

Item 11 Section 73 enables monitoring orders to be applied for and made. This item amends the section to prohibit a police officer to apply for a monitoring order under section 73 after the PoC Bill 2002 has commenced. The PoC Bill 2002 contains its own production order regime.

Item 12 Section 86 provides for the registration of interstate restraining orders under the PoC Act 1987. This item prohibits those orders being registered under the PoC Act 1987 if the PoC Bill 2002 has commended.

Item 13 Section 86 provides for the registration of interstate forfeiture orders under the PoC Act 1987. This item prohibits those orders being registered under the PoC Act 1987 if the PoC Bill 2002 has commended.

Item 14 This item makes it clear that the transitional amendments in Part 1 of Schedule 7 do not affect applications or orders made ,or warrants or search warrants issued, under the PoC Act 1987 made before the commencement of the PoC Bill 2002.

Item 15 This item makes it clear that property, documents or evidence seized or otherwise obtained pursuant to the operation of the PoC Act 1987 can be used under the PoC Bill 2002.

Item 16 This item makes it clear that the document retention obligations of financial institutions continue in force, despite the move of the provisions from the PoC Act 1987 to the FTR Act.

Part 2 - Application of the Proceeds of Crime Act 2002

Item 17 This item provides that references to the commencement of the PoC Act 2002 in Part 2 of Schedule 7 are references to the commencement of sections 3 to 332 of that Act, which will commence later than sections 1 and 2.

Item 18 This item makes it clear that an order under the PoC Bill 2002 can relate to an offence which was committed prior to the Bill commencing. However, property cannot be automatically forfeited under Part 2-3 if the relevant conviction occurred prior to commencement.

Item 19 This item prohibits the DPP from applying for a restraining order under the PoC Bill 2002 if there is an application for a restraining order on foot under the PoC Act 1987.

This item also prohibits the DPP from applying for a restraining order under section 17 of the PoC Bill 2002 (a 'conviction-based' restraining order) if an application for that type of order has been refused under the PoC Act 1987. However, the DPP is not prevented from applying for another type of restraining order under the PoC Bill 2002.

Item 20 This item prohibits the DPP from applying for a forfeiture order under the PoC Bill 2002 if there is an application for a forfeiture order on foot under the PoC Act 1987.

This item also prohibits the DPP from applying for a forfeiture order under section 46 of the PoC Bill 2002 (a 'conviction-based' forfeiture order) if an application for that type of order has been refused under the PoC Act 1987. However, the DPP is not prevented from applying for another type of forfeiture order (ie a civil-forfeiture order) under the PoC Bill 2002.

Item 21 Where a forfeiture order has been made under the PoC Act 1987 (whether before or after the commencement of the PoC Bill 2002) and the conviction on which that order is based is quashed, and that occurs after the commencement of the PoC Bill 2002, Division 6 of Part 2-2 of the PoC Bill 2002 applies.

Where a persons property was automatically forfeited under the PoC Act 1987 as a result of his or her conviction of a serious offence (whether before or after the commencement of the PoC Bill 2002) and the conviction on which that order is based is quashed, and that occurs after the commencement of the PoC Bill 2002, Division 4 of Part 2-3 of the PoC Bill 2002 applies.

Item 22 This item prohibits the DPP from apply for a PPO under the PoC Bill 2002 if an application for a PPO has been made under the PoC Act 1987, and that application is still pending.

This item also prohibits the DPP from applying for a PPO under section 111 of the PoC Bill 2002 if the application is based on the person's conviction of an offence, an application for that type of order has been refused under the PoC Act 1987. However, the DPP is not prevented from applying for a PPO under Part 2-3 of the PoC Bill 2002 in respect of that offence.

Item 23 Where a PPO has been made under the PoC Act 1987 (whether before or after the commencement of the PoC Bill 2002) and the conviction on which that order is based is quashed, and that occurs after the commencement of the PoC Bill 2002, Division 5 of Part 2-4 of the PoC Bill 2002 applies.

Item 24 Where an interstate restraining order has been registered under Part 4-5 of the PoC Act 1987, Division 1 of Part 4-5 of PoC Bill 2002 does not apply to that order.

Item 25 Where an interstate forfeiture order has been registered under Part 4-5 of the PoC Act 1987, Division 2 of Part 4-5 of PoC Bill 2002 does not apply to that order.

Item 26 This item enables regulations which are already in force under the PoC Act 1987 to continue in force as if they were made under the PoC Bill 2002 until regulations are made under the Bill. The item sets out the regulations which are in the PoC Act 1987 and the corresponding provisions in the PoC Bill 2002.