Anti-terrorism Act 2004 (104 of 2004)

Schedule 1   Amendments

Proceeds of Crime Act 2002

26   After section 337

Insert:

337A Meaning of foreign indictable offence

(1) If:

(a) an application (the current application ) is made for a *restraining order or *confiscation order in relation to conduct that constituted an offence against a law of a foreign country; and

(b) if the conduct had occurred in Australia at the testing time referred to in subsection (2), the conduct would have constituted an offence against a law of the Commonwealth, a State or a Territory punishable by at least 12 months imprisonment;

then, for the purposes of the current application, the conduct is treated as having constituted a foreign indictable offence at all relevant times.

Example: X commits an offence against a law of a foreign country at a time when the conduct is not an offence against Australian law. X then derives literary proceeds in relation to the offence and transfers the proceeds to Australia. After the proceeds are transferred, a new Commonwealth offence is created that applies to the type of conduct concerned. An application is then made for a literary proceeds order. For the purposes of the proceedings for that order, the original conduct is treated as having constituted a foreign indictable offence at all relevant times and accordingly an order can be made in respect of those proceeds.

(2) The testing time for the current application is:

(a) if the current application is an application for a *restraining order - the time when the current application was made; or

(b) if the current application is an application for a *confiscation order (other than a *literary proceeds order) in relation to a restraining order - the time when the application for the restraining order was made; or

(c) if:

(i) the current application is an application for a literary proceeds order; and

(ii) an earlier restraining order has been made in respect of the same offence;

the time when the application was made for that earlier restraining order; or

(d) if the current application is an application for a literary proceeds order but paragraph (c) does not apply - the time when the current application was made.

(3) In this section:

offence against a law of a foreign country includes an offence triable by a military commission of the United States of America established under a Military Order of 13 November 2001 made by the President of the United States of America and entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism”.