House of Representatives

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)

Schedule 2 - Other amendments

Schedule 2 of the Bill also corrects minor drafting errors in the POC Act. These errors were identified in the drafting of the Bill.

Proceeds of Crime Act 2002

Item 1 - Subparagraph 54(a)(i)

Item 1 repeals a reference to terrorism offence in subparagraph 54(a)(i) of the POC Act and substitutes a reference to serious offence.

Division 2 of Part 2 of the POC Act sets out certain matters for the court to consider when making forfeiture orders. Section 54 of Division 2 states that there is a presumption that certain property is an instrument of an offence, which applies where the Director of Public Prosecutions applies for a forfeiture order and specific evidence is tendered to the court. Subparagraph 54(a)(i) states that this presumption applies with respect to property in relation to a person's commission of a terrorism offence.

Terrorism offence is defined by section 338 of the POC Act as meaning an offence against Part 5-3 of the Criminal Code Act 1995. A serious offence is defined under the POC Act as an indictable offence punishable by at least 3 years imprisonment and involving certain other elements such as unlawful conduct relating to narcotic substances or serious drug offences, money laundering and certain people smuggling offences.

Previously the POC Act distinguished 'terrorism offences' and 'serious offences with respect to non-conviction based confiscation of instruments of indictable offences, and only allowed the instruments of terrorism offences to be confiscated under non-conviction-based confiscation provisions. The Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 replaced the references to instruments of terrorism offences in provisions that provide for non-conviction-based confiscation with references to instruments of 'serious offences' to ensure instruments of serious offences can also be confiscated under those provisions. That Act also removed most other references to a 'terrorism offence' from the POC Act and substituted these references with a reference to 'serious offence'.

However, the reference to 'terrorism offence' in subparagraph 54(a)(i) with respect to the presumptions that apply when a forfeiture orders in relation to instruments of terrorism offences appears to have been left in erroneously. Item 1 omits this reference and substitutes a reference to 'serious offence' to resolve this error.

Item 2 - Section 338 (subparagraph (b)(ii) of the definition of indictable offence of Commonwealth concern )

Section 338 defines indictable offence of Commonwealth concern for the purposes of the POC Act. Paragraph (b)(ii) of this definition refers to this term as meaning an offence against a law of a State or a self-governing Territory the proceeds of which were dealt with in contravention of a law of the Commonwealth on using a postal, telegraphic or telephonic service within the meaning of paragraph 51(xx) of the Constitution. However, the paragraph of the Constitution that deals with postal, telegraphic and telephonic services is paragraph 51(v). This item omits the incorrect reference to paragraph 51(xx) and substitutes a reference to paragraph 51(v).