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Crimes Legislation Amendment Bill (No. 2) 2011

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2010 - 2011

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

CRIMES LEGISLATION AMENDMENT BILL (No. 2) 2011

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

(Circulated by authority of the Minister for Justice,

the Honourable Brendan O’Connor MP)



CRIMES LEGISLATION AMENDMENT BILL (No. 2) 2011

GENERAL OUTLINE

This Bill will enhance processes for the confiscation of criminal assets and expand the jurisdiction of the Australian Commission for Law Enforcement Integrity (ACLEI).

The Bill will amend the Administrative Decisions (Judicial Review) Act 1977, Australian Federal Police Act 1979, Bankruptcy Act 1966, Crimes Act 1914, Crimes Legislation Amendment (Serious and Organised Crime) Act 2010, Customs Administration Act 1985, Family Law Act 1975 (FLA), Foreign Evidence Act 1994, International Criminal Court Act 2002, International War Crimes Tribunals Act 1995, Law Enforcement Integrity Commissioner Act 2006 (the LEIC Act), Mutual Assistance in Criminal Matters Act 1987,   Proceeds of Crime Act 2002 (POCA) and Trade Marks Act 1995.

The Bill will:

·          amend the LEIC Act and a related Act to include the Australian Customs and Border Protection Service (ACBPS) within the jurisdiction of ACLEI

 

·          enable the Commissioner of Australian Federal Police (AFP) to commence litigation under the POCA

 

·          enable the Commonwealth Director of Public Prosecutions (DPP) to transfer POCA matters to the Commissioner of the AFP, and vice versa

 

·          extend procedures currently available in the FLA, for when a Commonwealth proceeds of crime order or forfeiture application applies to property the subject of certain family law proceedings, to when State and Territory proceeds of crime orders and forfeiture applications apply to such property

 

·          improve the interaction between collection of tax-related liabilities and proceeds of crime proceedings in the POCA, and

 

·          extend the definition of ‘property-tracking document’ in the POCA to enable production orders to be issued in relation to documents relevant to identifying, locating or quantifying property which forms part of a person’s wealth.

 

 

PURPOSE

 

This Bill will bring the ACBPS within ACLEI’s jurisdiction on a whole-of-agency basis, facilitate the implementation of the new Criminal Asset Confiscation Taskforce (the Taskforce), and streamline other elements of the proceeds of crime regime.

 

Australian Commission for Law Enforcement Integrity amendments

 

Schedule 1 will amend the LEIC Act, to include the ACBPS within ACLEI’s jurisdiction.  This will expand the ability of the Integrity Commissioner to detect, investigate and prevent corrupt conduct occurring within the ACBPS.  The amendments implement the Government’s October 2010 response to



recommendation 3 of the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity’s interim report on the inquiry into the LEIC Act.

Schedule 1 will also amend the Customs Administration Act 1985 , to ensure that secrecy provisions applying to Customs employees and others do not preclude disclosures made for the purposes of the LEIC Act or Regulations under the LEIC Act. This will bring the Customs secrecy provisions in line with the Australian Crime Commission (ACC) and Australian Federal Police (AFP) provisions in relation to disclosures to the Integrity Commissioner or ACLEI.

 

Proceeds of crime amendments

 

In August 2009, the Parliamentary Joint Committee on the Australian Crime Commission (PJC-ACC) recommended that the Australian Government examine an integrated model of asset recovery in which investigation and prosecution would be undertaken within one agency.  During the 2010 election, the Government announced that it would establish a new Criminal Assets Confiscation Taskforce, led by the AFP, to enhance the identification of potential criminal asset confiscation matters and strengthen their pursuit.

 

The Bill will allow proceeds of crime matters to be litigated by the Commissioner of the AFP on behalf of the Criminal Assets Confiscation Taskforce.

 

Part 1 of Schedule 2 will amend the POCA to facilitate the operation of the Taskforce by:

 

  • enabling the Commissioner of the AFP to exercise the powers and functions relating to confiscation litigation under the POCA, currently exercised only by the DPP, and

 

  • allowing the Commissioner of the AFP and DPP to transfer matters already commenced between themselves.

 

Part 1 also contains consequential amendments to the following Acts to reflect that the Commissioner will now be able to undertake proceeds of crime litigation:  Administrative Decisions (Judicial Review) Act 1977, Australian Federal Police Act 1979, Bankruptcy Act 1966, Crimes Act 1914,  Crimes Legislation Amendment (Serious and Organised Crime) Act 2010, Foreign Evidence Act 1994, International Criminal Court Act 2002, International War Crimes Tribunals Act 1995 , Mutual Assistance in Criminal Matters Act 1987 and Trade Marks Act 1995.

 

The FLA will be amended to reflect the Commissioner’s new powers, as well as to allow State and Territory proceeds of crime orders and forfeiture applications to be taken into account in property settlement and spouse maintenance proceedings under FLA Part VIII and VIIIAB, in the same way as Commonwealth proceeds of crime orders and forfeiture applications.

 

Part 2 of Schedule 2 makes two key amendments to the POCA.

 

The first amendment will give courts a discretion, when calculating the amount of a pecuniary penalty order, to take into account tax paid after proceedings were commenced under the POCA, based on whether the court is satisfied that it is in the interests of justice to do so.  This will prevent the frustration of proceeds of crime proceedings by the belated discharge of a tax liability, as well as protect persons who are unable to settle their tax liability prior to the commencement of POCA proceedings for genuine reasons.

 

The second amendment will extend the definition of ‘property-tracking document’ in paragraph 202(5)(ea) to be consistent with the definition of ‘wealth’ under subsection 179G(1).  This will facilitate investigations by aligning the production order provision with unexplained wealth provisions under the POCA.

 

FINANCIAL IMPACT STATEMENT

 

The amendments in this Bill have little or no financial impact on Government revenue.



ACRONYMS

 

ACBPS                                   Australian Customs and Border Protection Service

ACLEI                                                Australian Commission for Law Enforcement Integrity

AD(JR) Act                            Administrative Decisions (Judicial Review) Act 197

AFP                                         Australian Federal Police

AFP Act                                  Australian Federal Police Act 1979

Commissioner                         Commissioner of the Australian Federal Police

Crimes Act                              Crimes Act 1914

DPP                                         Commonwealth Director of Public Prosecutions

FLA Act                                 Family Law Act 1975

Integrity Commissioner          Australian Law Enforcement Integrity Commissioner

LEIC Act                                Law Enforcement Integrity Commissioner Act 2006

PJC-ACC                                Parliamentary Joint Committee on the Australian Crime

Commission

PJC-ACLEI                            Parliamentary Joint Committee on the Australian

Commissioner for Law Enforcement Integrity

POCA                                     Proceeds of Crime Act 2002

 



NOTES ON CLAUSES

 

Clause 1: Short Title

 

This clause provides that when the Bill is enacted, it is to be cited as the Crimes Legislation Amendment Act (No. 2) 2011 .

 

Clause 2: Commencement

 

This clause sets out when the various parts of the Act are to commence.

 

Schedule 1 and Part 2 of Schedule 2 will commence the day after this Act receives Royal Assent.

 

Items 1 to 154 and 195 to 242 of Schedule 2 will commence on 1 January 2012 or the day after this Act receives Royal Assent, whichever occurs later.  This is to allow arrangements to be put in place to enable the Commissioner to take action under the POCA on behalf of the newly established Criminal Assets Confiscation Taskforce, which commenced operation in January 2011.  Agencies participating in the Taskforce (including the AFP, DPP, Australian Crime Commission and Australian Taxation Office) are currently working on arrangements to enable the AFP to take on responsibility for litigation once these amendments commence.  A commencement date of 1 January 2012 will give the Commissioner time to put in place structures, procedures and safeguards in relation to the exercise of the powers, duties and functions which will be conferred on him or her by this Act.

 

Items 155 to 194 of Schedule 2, which amend the FLA, will commence on a single day to be fixed by Proclamation.  However, if the provisions do not commence within 6 months of the day that this Act receives Royal Assent, they will commence on the day after the end of that period.  This commencement provision has been included to provide time to consult with the States and Territories in relation to proposed Regulations to support these amendments, and allow for those Regulations to be drafted.

 

Clause 3: Schedule(s)

 

This is a formal clause that enables the Schedules to amend Acts by including amendments under the title of the relevant Act.

 



Schedule 1 - Integrity commissioner amendments

 

In 2006, the Law Enforcement Integrity Commissioner Act (the LEIC Act) was enacted to enhance the integrity of Commonwealth law enforcement agencies.  The LEIC Act establishes the Australian Commission for Law Enforcement Integrity (ACLEI), and the position of the Integrity Commissioner, and provides them with powers to prevent, detect and investigate corrupt conduct within Australian Government law enforcement agencies.

 

The LEIC Act provides a framework for dealing with allegations of corrupt conduct within Commonwealth law enforcement agencies.  The Integrity Commissioner’s functions include to investigate corrupt conduct, report on corruption issues and refer corruption issues to law enforcement agencies in appropriate circumstances.  The Integrity Commissioner can recommend that criminal, civil and/or asset confiscation proceedings be brought for contraventions of Commonwealth laws by staff members of law enforcement agencies. 

 

ACLEI present jurisdiction includes all the activities of the Australian Federal Police, the Australian Crime Commission and the former National Crime Authority.  From January 2011, it has also has responsibility for investigating corrupt conduct relating to the law enforcement functions of the Australian Customs Border Protection Service (ACBPS), following that agency’s prescription in Regulations made under the LEIC Act.  The inclusion of the ACBPS within ACLEI’s jurisdiction under the LEIC Act will enable ACLEI to investigate corrupt conduct relating to all ACBPS functions. 

 

The inclusion of ACBPS within ACLEI’s jurisdiction on a whole of agency basis will implement Recommendation 3 of the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity’s interim report on the Inquiry into the LEIC Act and the Government’s response to this report.

 

Customs Administration Act 1985

 

Item 1 - After paragraph 16(2)(c)

 

Item 1 will add a new paragraph to subsection 16(2) of the Customs Administration Act 1985 so that non-disclosure obligations applying to individuals do not preclude disclosures made for the purposes of the LEIC Act or Regulations under the LEIC Act.  This will bring the Customs secrecy provision in line with the Australian Crime Commission (ACC) and Australian Federal Police (AFP) provisions in relation to disclosures to the Integrity Commissioner or ACLEI.

 

Section 16 of the Customs Administration Act prohibits the disclosure of certain ACBPS information by ACBPS employees and others referred to in section 16(1AA) of that Act.  It is an offence for these individuals to directly or indirectly make a record of, or disclose to any person, any protected information, if the record or disclosure is outside the course of their employment, or made without legislative authority.  Similar provisions appear in the Australian Federal Police Act 1979 (section 60A) and the Australian Crime Commission Act 2002 (section 51), but explicitly permit disclosure made for the purpose of the LEIC Act.

 

The amendments in this Schedule will include the ACBPS within ACLEI’s jurisdiction. Therefore, it is important that there is explicit provision for ACBPS employees and others covered by the Customs Administration Act to disclose information to the Integrity Commissioner or ACLEI in relation to corruption allegations arising within the ACBPS.

 

Law Enforcement Integrity Commissioner Act 2006

 

Items 2 and 3 - Subsection 5(1)

 

Item 2 will amend the definition of ‘head of a government agency’ in section 5 of the LEIC Act, to include the Chief Executive Officer of Customs, as the head of a government agency for the purposes of the LEIC Act.

 

Item 3 will amend the definition of ‘law enforcement agency,’ in section 5 of the LEIC Act to include ‘Customs.’

 

Section 4AA of the Customs Administration Act provides that ‘Customs’ means the agency continued in existence under subsection 4(1).  Section 4(1) of the Customs Administration Act provides that the agency previously known as the Australian Customs Service is continued in existence with the new name, the ACBPS. The reference to ‘Customs’ in the LEIC Act therefore covers past and present staff members of the ACBPS and its predecessor, the Australian Customs Service.

 

The inclusion of ‘Customs’ in the definition of a law enforcement agency in the LEIC Act has the effect of providing the Integrity Commissioner with the jurisdiction to investigate corrupt conduct engaged in by all Customs staff members, even if the particular functions performed by the staff member fall outside the boundaries of a traditional law enforcement role.  This is appropriate because Customs officers may have access to information that is likely to be of interest to those engaged in serious and organised crime, regardless of whether the officer performs a specific law enforcement function within Customs.  In addition, Customs also rotates officers between roles of a law enforcement and non-law enforcement nature, such that a Customs officer could use information obtained while in a law enforcement role while performing a non-law enforcement role.  Including all Customs’ functions within ACLEI’s jurisdiction on a whole of agency basis is also consistent with the current application of the LEIC Act to all AFP and ACC staff, regardless of their role.

 

Item 4 and 5 - After subsection 10(2) and paragraph 10(5)(b)

 

Section 10 of the LEIC Act defines ‘staff members of law enforcement agencies’ for the purposes of the Act.  Subsection 10(5) identifies which of those staff members in subsection 10(1) to 10(4) are ‘secondees’ for the purposes of the Act.

 

Item 4 amends section 10, to include a definition of ‘Customs staff members’.  The purpose of the amendment is to provide the Integrity Commissioner with jurisdiction to investigate allegations of corruption made against, or relating to, the CEO of Customs, a Customs employee, or a person authorised in writing by the CEO of Customs to perform a function of a person employed in Customs.  This definition includes Commonwealth, State and Territory employees who are seconded to Customs, as well as individuals who are not in other government employment, who are authorised by the CEO of Customs to perform a function of a person employed in Customs. 

 

Item 5 amends section 10(5) of the LEIC Act, to identify which Customs staff members are also secondees, for the purposes of the Act.  New paragraph 10(5)(ba) will specify that all persons authorised by the CEO of Customs to perform a function of a person employed in Customs are secondees for the purposes of the Act.  The effect of this, in combination with other provisions in the LEIC Act, is that the Integrity Commissioner has an obligation to notify the head of a government agency about a corruption issue involving one of their employees who has been authorised by the CEO of Customs to perform a Customs function.

 

Item 6 - Application

 

This item is an application provision that provides that ACLEI’s jurisdiction to investigate any corrupt conduct by staff members of Customs extends to all conduct regardless of whether it was engaged in before or after the commencement of the LEIC Act on 30 June 2006. The effect of this provision is that the Integrity Commissioner can, of his or her own volition, investigate corruption issues within Customs irrespective of when the relevant conduct occurred. 

 

Under section 19 of the LEIC Act, the Chief Executive Officer (CEO) of Customs is required to notify the Integrity Commissioner in writing of a corruption issue as soon as practicable after the CEO becomes aware of the allegation or information that raises the issue.  However, the application provision ensures that this requirement only applies after the commencement of the item.  This means that although the Integrity Commissioner will have the authority to investigate conduct occurring prior to the commencement of the Act, the CEO’s notification obligation will only apply to conduct occurring after commencement.

 

The application provision also confirms that the Integrity Commissioner’s authority to investigate previous corrupt conduct in ACBPS extends to conduct that occurred while the agency was known as the Australian Customs Service.

 



Schedule 2 - Proceeds of crime amendments

 

Part 1 of Schedule 2 amends the Proceeds of Crime Act 2002 (the POCA) and other Acts to enable the Commissioner of the Australian Federal Police (the Commissioner) to commence proceeds of crime litigation.  Currently, the Commonwealth Director of Public Prosecutions (DPP) is the only Commonwealth entity authorised to commence proceeds of crime litigation under the POCA.

 

These amendments will enable the Commissioner to exercise all of the powers, duties and functions currently vested in the DPP under the POCA, including the power to:

 

·          apply for an order to restrain property, an ancillary order, a conviction based or non-conviction based forfeiture order, a pecuniary penalty order, a literary proceeds order, a preliminary unexplained wealth order or unexplained wealth order, or an examination order

 

·          give undertakings with respect to the payment of damages or costs for the making and operation of a restraining order, preliminary unexplained wealth order or unexplained wealth order, and

 

·          appear and give evidence at hearings for applications under the POCA, including applications for exclusion, compensation, recovery or to relieve dependants from hardship.

 

These amendments are integral to the streamlined operation of the Government’s newly established Criminal Assets Confiscation Taskforce, led by the AFP.  Once the Commissioner has the power to commence and conduct proceedings under the POCA, it is envisaged that the AFP will take responsibility for litigating all proceeds of crime matters relevant to the investigations undertaken by the Taskforce, and all non-conviction based proceeds of crime matters.  While it is likely that the Taskforce will take responsibility for the majority of proceeds of crime matters, it is expected that the DPP will continue with a limited number of matters that are closely connected with criminal prosecutions.  The division of responsibilities between the two authorities will be subject to administrative arrangements outlined in a Memorandum of Understanding.

 

Part 1 will also insert a new provision enabling the DPP and the Commissioner to transfer matters between them, where both parties consent to the transfer.  This will allow the efficient transfer of matters between the authorities where a matter is more appropriately carried on by the other authority, without the need to recommence proceedings. 

 

Part 1 also amends a number of other Acts to reflect that both the DPP and Commissioner will have a role in litigating proceeds of crime matters.  Further amendments are also made to the FLA to extend ‘proceeds of crime’ provisions contained in that Act, which currently apply in property or spousal maintenance proceedings where action has been taken under the POCA, to proceedings where action has been taken under State or Territory proceeds of crime legislation.  The affected provisions are those that require courts to stay property or spousal maintenance proceedings on being notified that property of the parties to the marriage or either of them is covered by a proceeds of crime order or a forfeiture application under the POCA. 

 

The effect of these amendments is that:

 

·          parties to a family law matter will be required to notify the court where the property is covered by a Commonwealth, State or Territory proceeds of crime order or forfeiture application

 

·          State and Territory proceeds of crime authorities, in addition to Commonwealth proceeds of crime authorities, will be able to apply to a court to stay a property settlement or spousal maintenance proceeding where the property is covered by a State or Territory proceeds of crime order or a forfeiture application

 

·          State and Territory proceeds of crime authorities, in addition to Commonwealth proceeds of crime authorities, will be able to intervene in proceedings, and

 

·          the court may also invite or require State or Territory proceeds of crime authorities to make submissions relating to staying the proceedings.

 

Part 2 makes changes to the POCA to enhance the effectiveness of criminal asset confiscation investigations and litigation.  These amendments will:

 

·          amend the definition of ‘property-tracking document’ to ensure that a magistrate can issue a production order for documents relevant to identifying, locating and quantifying property which forms part of the wealth of a person, and

 

·          improve the interaction between the collection of tax-related liabilities and POCA proceedings.

 

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

 

Division 1 - Main amendments

 

Australian Federal Police Act 1979

 

Item 1 - At the end of section 69C

 

Currently, subsection 69C(1) enables the Commissioner to delegate any or all of the Commissioner’s powers, functions and duties under the Act to a Deputy Commissioner, an AFP employee or special member (other than the Commissioner’s power under section 35A dealing with payments in special circumstances).

 

Item 1 inserts new subsection 69C(3), which will enable the Commissioner to delegate the Commissioner’s powers, functions or duties as a proceeds of crime authority to the Deputy Commissioner or a senior executive AFP employee.  A delegation must be in writing.  This is more restrictive than the delegation under subsection 69C(1) to ensure that the Commissioner can only delegate these powers, functions and duties to officers who are suitably senior.  This approach is consistent with how the DPP currently delegates those functions given to him or her under the POCA.

 

Item 2 - Application of amendment - the Australian Federal Police Act 1979

 

Item 2 sets out the application of the amendments in Item 1.  The amendment in Item 1 of Schedule 2 applies in relation to the Commissioner’s powers, functions or duties as a proceeds of crime authority in relation to applications for orders, orders and proceedings under the POCA, regardless of when they were made or started, or when the conduct giving rise to that order occurred.

 

While this provision is retrospective in application, it does not create any retrospective criminal liability.  It is necessary for this provision to operate retrospectively, as Item 3 of Schedule 2 of this Bill will enable the DPP to transfer to the Commissioner applications for orders and orders that may have been made prior to the commencement of Item 1.  The conduct to which these applications, orders or proceedings relate will also have occurred prior to commencement.  It is necessary for the Commissioner to be able to delegate his powers, functions or duties in relation to these matters to ensure that these matters can be progressed in a timely and efficient manner.

 

Retrospective application will also ensure that the Commissioner (or his or her delegate) is able to apply for a proceeds of crime order, regardless of when the conduct leading to that order occurred.  As the conduct giving rise to the order may continue over several years or may not be discovered immediately, this item will give certainty to persons whose property is subject to proceeds of crime action and legal practitioners who work with the POCA as to when the Commissioner (or his or her delegate) has the power to apply for an order.

 

Proceeds of Crime Act 2002

 

Item 3 - After section 315A

 

Item 3 inserts a new section 315B into the POCA to provide a mechanism for the transfer of proceeds of crime matters between the DPP and the Commissioner, where both authorities consent to that transfer.

 

The provisions are designed to allow a smooth and efficient transfer without causing undue delay or inconvenience, in particular avoiding the need to recommence proceedings.  For example, a transfer may be appropriate where the DPP commences a proceeds of crime matter in conjunction with a prosecution that is later discontinued and the Commissioner becomes the more suitable authority to continue the matter, or where there would be an advantage in the DPP taking over a matter commenced by the Commissioner on the grounds that it is closely linked to a prosecution that it is undertaking.

 

The purpose of subsection 315B(1) is to allow the DPP and Commissioner to transfer between themselves responsibility for any principal order (a definition of principal order will be inserted in section 338) or an application for a principal order, which includes a restraining order, a forfeiture order, a pecuniary penalty order, a literary proceeds order or an unexplained wealth order.

 

Subsection (2) sets out the list of people and courts that the transferee must notify in writing of the transfer of responsibility for the application or order.  This will ensure that the court that is hearing the matter and other relevant parties are aware of the transfer and know which agency now has responsibility for the proceedings.

 

However, subsection (3) provides that the transferee will satisfy their obligation under subsection (2) so long as they take reasonable steps to give notice to a person (other than a court).  While in most instances, it will be relatively easy for the transferee to provide notice to the persons listed in subsection (2), there may be instances where it is not possible to notify relevant people, such as if they have absconded or, after a reasonable endeavour by the transferee, cannot be located.  In these instances, it will be sufficient that the transferee take reasonable steps to give notice to the person.

 

Subsection (4) lists the circumstances in which the transferee is not required to give notice under subsection (2) or may delay giving notice.  These circumstances include where a responsible authority has requested the court to consider an application for a restraining order without notice having being given under subsection 26(4) of the POCA, where the court has agreed to delay giving notice of a restraining order under subsection 33(3) and where a court has dispensed with the requirement to give notice to a person under section 63. 

 

Subsection (5) provides that the transfer takes effect on the day that the court, being the court that made the order or that will hear the application for the order, receives the notice of transfer.

 

Subsection (6) outlines the effect of the transfer.  This provision is intended to be interpreted broadly.  Once a transfer has taken effect, the transferee will replace the original authority as a party to any proceedings under the POCA or any other Act in relation to, or arising out of, the application or order, or to which the application or order is relevant.  Related proceedings may include, for example, examination orders, exclusion orders or compensation orders.  For example, if a restraining order is transferred and an examination order had been made in relation to that restraining order, the transferee would also assume responsibility for that examination order.  The transferee may initiate, conduct, or respond to any related proceedings.  

 

The transferee authority is also responsible for any functions, powers and duties under the POCA or any other Act in relation to the application for the order, any related applications or proceedings, and any order arising out of related applications or proceedings.  This provision is designed to ensure continuity of responsibility for all aspects of a principal order or an application for a principal order before and after the transfer process.

 

Subsections (7) and (8) are designed to clearly delineate areas of responsibility between the transferor and transferee organisations, by extinguishing functions, powers and duties of the transferor upon transfer, except liability for any costs or damages previously awarded against the authority.  The transferee authority will be bound by the actions of the transferor, including any liability for costs or damages awarded on or after the day of transfer as a result of any action or omission of the transferor authority.  These provisions provide certainty to courts and other parties that any undertakings, liabilities and costs will continue to be covered after any transfer of responsibility for the matter.

 

Item 4 - Section 338

 

Item 4 inserts a new definition of principal order into section 338.  A ‘principal order’ is defined to include any of the following orders:

 

  • a restraining order
  • a forfeiture order
  • a pecuniary penalty order
  • a literary proceeds order, and
  • an unexplained wealth order.

 

This new term is used in the context of the transfer of orders and applications for orders, and in determining which organisation is the responsible authority under the POCA.

 

Item 5 - Section 338

 

Item 5 inserts a new definition of ‘proceeds of crime authority’ into section 338 to mean either the Commissioner or the DPP.  This definition will be used in provisions within the POCA where both organisations are intended to be captured.  For example, where either party could make an application.

 

Item 6 - Section 338

 

Item 6 inserts a new definition of ‘responsible authority’ into section 338.  Under this definition, the ‘responsible authority’ is whichever ‘proceeds of crime authority’ (as defined by Item 5) made the application for the principal order (as defined by Item 4), or, if responsibility for the application or the order has been transferred under section 315B, the transferee authority.

 

This definition has been included to reflect that more than one authority will now be able to apply for certain orders under the POCA and make it clear which authority is responsible for a particular proceeds of crime matter. 

 

Division 2—Substituted references to proceeds of crime authority

 

Proceeds of Crime Act 2002

 

Items 7 to 30 - Multiple amendments

 

Items 7 to 30 omit references to ‘the *DPP’, ‘The *DPP’ and ‘the DPP’ and substitutes references to ‘a *proceeds of crime authority’, ‘A *proceeds of crime authority’ and ‘a proceeds of crime authority’ respectively.  These amendments will enable both the Commissioner and the DPP to exercise the powers, functions and duties in these provisions. 

Various headings are also updated by omitting ‘DPP’ and substituting ‘Proceeds of crime authority’.

 

Division 3—Substituted references to responsible authority

 

Proceeds of Crime Act 2002

 

Items 31 to 114 - Multiple amendments

 

Items 31 to 114 omit references to ‘*DPP’, ‘DPP’ and ‘*DPP’s’ and substitute references to the ‘*responsible authority’, ‘authority’ and ‘responsible authority’s’ respectively.  These terms are used where the provision is intended to refer to the specific organisation that has carriage of particular proceedings.

 

The headings in section 32 are also updated by omitting ‘DPP’ and substituting ‘responsible authority’.

 

Division 4 - Other references to the Director of Public Prosecutions

 

Proceeds of Crime Act 2002

 

Item 115 - Paragraph 15Q(2)(b)

 

Item 115 repeals paragraph 15Q(2)(b) and inserts a new paragraph which requires notice of an application to vary a freezing order to be given to the enforcement agency with which the authorised officer that applied for the freezing order is associated, rather than the DPP.  This will make the notification requirements in paragraph 15Q(2)(b) for an application to vary a freezing order more consistent with the notification requirements in subsection 15R(2) for an application to revoke a freezing order.

 

Item 116 to 117 - Subsection 29(1) (note) and Section 29A (note)

 

The amendments are consequential to the amendment in Item 38 of Schedule 2, and amend notes to omit ‘DPP’ and substitute ‘responsible authority’.

 

Items 118 and 119 - Subsections 34(2) and 35(1)

 

Items 118 and 119 omit references to the DPP and substitute references to the responsible authority for the restraining order.  These amendments refer to the ‘responsible authority for the restraining order’ to distinguish the responsible authority from the registration authority.

 

Item 120 - Section 46

 

Item 120 amends the Simplified outline of Part 2-2 - Forfeiture orders, to omit the reference to ‘the DPP’ and substitute a reference to ‘a proceeds of crime authority (the Commissioner of the Australian Federal Police or the DPP)’.  This reflects the fact that both the Commissioner and DPP will be able to apply for forfeiture orders.

 

Items 121 and 122 - Paragraphs 47(1)(a) and (b) and 49(1)(a) and (b)

 

Items 121 and 122 repeal paragraphs 47(1)(a), 47(1)(b), 49(1)(a) and 49(1)(b) to remove references to the DPP and insert similar paragraphs which refer to the responsible authority.  These amendments clarify that it is the authority that applied for the relevant restraining order that is the responsible authority that is able to apply for a forfeiture order under these provisions.

 

Items 123 and 124 - At the end of subsections 75(1) and 79(1)

 

Items 123 and 124 insert notes at the end of subsections 75(1) and 79(1) respectively to clarify who is the responsible authority for the purposes of these paragraphs.  These notes clarify that the responsible authority for subsection 75(1) is the authority responsible for the forfeiture order or forfeiture application referred to in section 73, and the responsible authority for subsection 79(1) is the authority responsible for the forfeiture order or forfeiture application referred to in section 77.

 

Items 125 and 126- Subsection 92A(1)

 

Items 125 and 126 omit references to the ‘*DPP’ and ‘DPP’ in subsection 92A(1) and substitute a reference to the ‘*responsible authority for the *restraining order referred to in paragraph 92(1)(b)’, and a subsequent reference to the ‘authority’.  This makes it clear which organisation is the responsible authority for the purpose of the duty to provide notice of the date of forfeiture under Part 2-3.

 

Item 127 - Paragraphs 97(1)(b) and 110(1)(a)

 

Item 127 amends paragraphs 97(1)(b) and 110(1)(a) to omit the reference to ‘*DPP’ and substitute ‘*responsible authority for the *restraining order referred to in paragraph 92(1)(b)’.  This makes it clear which organisation is the responsible authority for the purpose of those paragraphs.

 

Items 128 and 129 - Subsection 113(2)

 

Items 128 and 129 omit references to the ‘*DPP’ and ‘DPP’ in subsection 113(2) and substitute a reference to the ‘*responsible authority for the *restraining order referred to in paragraph 92(1)(b)’, and a subsequent reference to the ‘authority’.  This makes it clear which organisation is the responsible authority for giving written notice if forfeiture ceases to have effect.

 

Item 130 - Subsection 116(4) (note)

 

Item 130 is consequential on the amendment made by Item 23 of Schedule 2.  It omits the reference to the DPP in the note at subsection 116(4) and substitutes it with ‘applications’.  The purpose of this note is to clarify that there are restrictions on applications for pecuniary penalty orders in certain circumstances.

 



Item 131- Subsections 143(1)

 

Item 131 amends subsection 143(1) to omit ‘*DPP’ and substitute a reference to the responsible authority for the pecuniary penalty order or restraining order.  In most instances a single authority will be responsible for the pecuniary penalty order and the restraining order.  However, where different authorities are responsible for the pecuniary penalty order and the restraining order, either of those authorities will be able to cause a charge created by section 142 to be registered.

 

Item 132 - Subsection 170(1)

 

Item 132 amends subsection 170(1) to omit ‘*DPP’ and substitute a reference to the responsible authority for the literary proceeds order or restraining order.  In most instances a single authority will be responsible for the literary proceeds order and the restraining order.  However, where different authorities are responsible for the literary proceeds order and the restraining order, either of those authorities will be able to cause a charge created by section 169 to be registered.

 

Item 133 - At the end of subsection 170(1)

 

Item 133 inserts a note to clarify that a charge is created under section 169 if both a literary proceeds order and a restraining order have been made in relation to an indictable offence (or related offence).

 

Item 134 - Subsection 182(1)

 

Item 134 amends subsection 182(1) to omit the reference to ‘*DPP’ and insert a reference to the responsible authority for the application for a principal order, or principal order, in relation to which the examination order is sought. 

 

Under Division 1 of Part 3-1 an examination order is always related in some way to a principal order or an application for a principal order.  The application or principal order may be current (such as in section 180) or no longer in force (such as under section 180E).  This item makes it clear that an examination order can only be made where an application is made by the authority who is (or was) responsible for the principal order in relation to which the examination order is sought.  For example, in relation to an application for an examination order under section 181, a court could make an examination order in relation to the quashing of a person’s conviction of an offence on application by the authority who had responsibility for the forfeiture order, restraining order, pecuniary penalty order or literary proceeds order mentioned in sections 81, 107, 146 and 173 respectively.

 

Item 135 - Subsections 282(4) and 282A(4)

 

Item 135 omits references to ‘*DPP’ in subsections 282(4) and 282A(4) and substitutes ‘*responsible authority for the relevant order’.  This makes it clear which organisation is the responsible authority for the purpose of applying for a direction under those of those subsections.

 



Item 136 - Section 294

 

Item 136 omits the reference to ‘*DPP’ in section 294 and substitutes ‘*responsible authority for the *restraining order referred to in section 293’.  This makes it clear which organisation is the responsible authority for the purposes of providing information to a legal aid commission under this section.

 

Item 137 - Paragraph 297(ga)

 

Item 137 omits the reference to ‘*DPP’ in paragraph 297(ga) and substitutes ‘*responsible authority for the *principal order, or application for a principal order, in relation to which the examination was conducted’.  This makes it clear which authority is responsible for approving payments in relation to the conduct of an examination.  The responsible authority for the purposes of this paragraph will be the same as the responsible authority in Item 134 of Schedule 2 (ie the authority that can apply for an examination order).

 

Item 138 - Subsection 322(5)

 

Item 138 omits the reference to ‘*DPP’ in subsection 322(5) and substitutes ‘*responsible authority for the targeted order’.  This makes it clear which organisation is the responsible authority for the purpose of appealing against a targeted order or appealing against a refusal by a court to make a targeted order.

 

Division 5—Application of amendments of the Proceeds of Crime Act 2002

 

Item 139 - Application of amendments - Divisions 1 to 4 of this Schedule

 

Item 139 sets out the application of the amendments in Divisions 1 to 4.  The amendments in these divisions apply in relation to applications for orders, orders and proceedings, regardless of when they were made or started, or when the conduct giving rise to that order occurred.

 

While this provision is retrospective in application, it does not create any retrospective criminal liability.  It is necessary for this provision to operate retrospectively, as Item 3 of Schedule 2 of this Bill will enable the DPP to transfer to the Commissioner applications for orders and orders, which may have been made prior to the commencement of these Divisions.  The conduct to which these applications, orders or proceedings relate will also have occurred prior to commencement.

 

Retrospective application will also ensure that the Commissioner is able to apply for proceeds of crime orders, regardless of when the conduct leading to those orders occurred.  As the conduct giving rise to the order may continue over several years or may not be discovered immediately, this item will give certainty to persons whose property is subject to proceeds of crime action and legal practitioners who work with the POCA as to when the Commissioner has the power to apply for an order.

 



Division 6—Consequential amendments

 

Administrative Decisions (Judicial Review) Act 1977

 

Item 140 - Paragraphs (ya) and (yb) of Schedule 1

 

Item 140 is consequential to the amendments made to the POCA in Part 1, Schedule 2 of this Bill and substitutes the reference to the DPP with a reference to a proceeds of crime authority in paragraphs (ya) and (yb) of Schedule 1.  These paragraphs currently provide that decisions of the DPP or an approved examiner under Part 3-1 of the POCA, and decisions of the DPP to apply for an order under POCA, are not decisions to which the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) would apply.  The amendment extends this exclusion to the same decisions made by the Commissioner under the POCA.

 

Item 141 - After paragraph (yb) of Schedule 1

 

Schedule 1 of the AD(JR) Act contains classes of decisions to which the AD(JR) Act does not apply.  This item inserts paragraph (yc) into Schedule 1 of the AD(JR) Act to exempt decisions of a proceeds of crime authority to transfer responsibility for an application for a principal order, or a principal order, to the other proceeds of crime authority under new section 315B of the POCA (inserted by Item 3 of Schedule 2), from the application of that Act. 

 

New section 315B of the POCA (inserted by Item 3 of Schedule 2) is designed to allow the smooth and efficient transfer of proceeds of crime matters between the Commissioner and DPP without causing undue delay or inconvenience, in particular avoiding the need to recommence proceedings. The transfer mechanism will not affect an individual’s rights under the POCA.  Exempting the decision to transfer responsibility for a proceeds of crime matter from the operation of the AD(JR) Act will prevent a person from using a challenge to the administrative transfer of a matter to frustrate proceeds of crime proceedings.

 

Bankruptcy Act 1966

 

Item 142 - Subsection 5(1)

 

Item 142 is consequential to the amendments made to the POCA in Part 1, Schedule 2 of this Bill and inserts a definition of ‘Commonwealth proceeds of crime authority’ in subsection 5(1) of the Bankruptcy Act 1966, meaning a proceeds of crime authority within the meaning of the POCA.  It also inserts a note that this is either the Commissioner or the DPP, as defined by section 338 of the POCA, and that responsibility can be transferred between these authorities.

 

Including this definition is necessary as references to the DPP in relation to POCA matters under the Bankruptcy Act will be replaced by references to the Commonwealth proceeds of crime authority throughout that Act.

 



Item 143 - Paragraph 12(1C)(a)

 

Item 143 is consequential to the amendments made to the POCA in Part 1, Schedule 2 of the Bill and substitutes a reference to the DPP with a reference to ‘the Commonwealth proceeds of crime authority that is the responsible authority, or that is proposed to be the responsible authority, for the application or proposed application under the Proceeds of Crime Act 2002’ in paragraph 12(1C)(a).

 

Section 12 of the Bankruptcy Act 1966 outlines the functions of the Inspector-General in Bankruptcy.  Paragraphs 12(1)(a) and (b) state that the Inspector-General in Bankruptcy must make inquiries and investigations as the relevant Minister directs, and may make such inquiries and investigations as the Inspector-General thinks fit with respect to the administration of, or the conduct of a trustee (including a controlled trustee) in relation to certain matters.  Paragraph 12(1C)(a) explains that the Inspector-General in Bankruptcy may make inquiries and investigations under paragraphs 12(1)(a) and (b) at the request of the DPP if the Inspector-General is satisfied that the request relates to an application, or proposed application, for a confiscation order.

 

With the amendment in Item 143, the Inspector-General will be able to do so at the request not only of the DPP but also the Commissioner, if the AFP is the responsible authority or proposed responsible authority for the application or proposed application for a confiscation order.

 

Item 144 - Subsection 58A(3)

 

Item 144 is consequential to the amendments made to the POCA in Part 1, Schedule 2 of the Bill.  It inserts, after the reference to the DPP in subsection 58A(3), the words ‘(or the Commissioner of the Australian Federal Police, if the Commissioner is the Commonwealth proceeds of crime authority that is the responsible authority for the order under the Proceeds of Crime Act 2002) ’. 

 

The effect of this amendment will be to extend a notification requirement that currently applies to the DPP in relation to certain proceeds of crime orders relating to  a bankrupt or his or her property, to the Commissioner (if the Commissioner is the responsible proceeds of crime authority).

 

Item 145 - Section 114C

 

Item 145 is consequential to the amendments made to the POCA in Part 1, Schedule 2 of the Bill.  It inserts, after the reference to the DPP in section 114C, the words ‘(or the Commissioner of the Australian Federal Police, if the Commissioner is the Commonwealth proceeds of crime authority that is the responsible authority for the order under the Proceeds of Crime Act 2002 )’.  The heading of the section is also amended to include the Commissioner after the reference to the DPP. 

 

The effect of these amendments will be to extend a notification requirement that currently applies to the DPP in relation to proceeds of crime orders relating to  a bankrupt or his or her property, to the Commissioner of the AFP (if the Commissioner is the responsible proceeds of crime authority).

Item 146 - Paragraph 154(6)(a)

 

Item 146 replaces paragraph 154(6)(a), which currently refers to the DPP (and a person who is entitled to apply for an interstate confiscation order under a corresponding proceeds of crime law), with the words ‘an application is made for an order under this subsection by a person mentioned in subsection (6A)’.  Subsection (6A) will be inserted by Item 147 of Schedule 2.  This amendment is required as a result of the amendments made to the POCA in Part 1, Schedule 2 of this Bill to include the Commissioner as a Commonwealth proceeds of crime authority in addition to the DPP.

 

Item 147 - After subsection 154(6)

 

Item 147 inserts new subsection 154(6A) into the Bankruptcy Act 1966 .

 

The new subsection states that for the purposes of paragraph 154(6)(a) an application for the Court to make an order directing the trustee not to pay or transfer the property, or specified part of the property, to the former bankrupt may be made by:

 

(a)     in the case of pending proceedings in relation to a forfeiture order or a pecuniary penalty order under the POCA - the Commonwealth proceeds of crime authority that is, or is proposed to be, the responsible authority for the application, or

 

(b)    in the case of pending proceedings under a corresponding law - a person who is entitled to apply for an interstate confiscation order under the corresponding law.

 

This item extends the ability to make an application pursuant to subsection 154(6) to the Commissioner in addition to the DPP.  This amendment is required as a result of the amendments made to the POCA in Part 1, Schedule 2 of this Bill to include the Commissioner as a Commonwealth proceeds of crime authority in addition to the DPP.

 

New subsection 154(6A) will also capture the reference to a person who is entitled to apply for an interstate confiscation order under the corresponding proceeds of crime law which was formerly contained in paragraph 154(6)(a).

 

Item 148 - Paragraph 231A(2)(a)

 

Item 148 is consequential to the amendments made to the POCA in Part 1, Schedule 2 of the Bill.  It repeals paragraph 231A(2)(a), which currently refers to the DPP (and a person who is entitled to apply for an interstate confiscation order under a corresponding law), and substitutes the phrase ‘an application is made for an order under this subsection by a person mentioned in subsection (2A); and’.  Subsection 2A will be inserted by Item 149 below. This amendment is required as a result of the inclusion of the Commissioner as a Commonwealth proceeds of crime authority in addition to the DPP.

 

 

Item 149 - After subsection 231A(2)

 

Item 149 inserts new subsection 231A(2A) in the Bankruptcy Act 1966.

 

The new subsection states that for the purposes of paragraph 231A(2)(a), as will be amended by Item 148 above, an application for the Court to make an order directing the trustee not to pay or transfer the property, or a specified part of the property, to the debtor may be made by:

 

(a)     in the case of pending proceedings in relation to a forfeiture order or a pecuniary penalty order under the POCA - the Commonwealth proceeds of crime authority that is, or is proposed to be, the responsible authority for the application, or

 

(b)    in the case of pending proceedings under a corresponding law - a person who is entitled to apply for an interstate confiscation order under the corresponding law.

 

This item extends the ability to make the application pursuant to subsection 231A(2) to the Commissioner in addition to the DPP.  This amendment is required as a result of the amendments made to the POCA in Part 1, Schedule 2 of this Bill to include the Commissioner as a Commonwealth proceeds of crime authority in addition to the DPP.

 

New paragraph 231A(2)(a) will also capture the reference to a person who is entitled to apply for an interstate confiscation order under the corresponding proceeds of crime law that was formerly contained in paragraph 231A(2)(a).

 

Item 150 - Application of amendments - the Bankruptcy Act 1966

 

Item 150 sets out the application of the amendments to the Bankruptcy Act 1966 in Items 142 to 149. 

 

These amendments apply in relation to proceeds of crime orders (or applications, proceedings or pending proceedings for proceeds of crime orders), or proceedings under the Bankruptcy Act, regardless of when they were made or (in the case of proceedings) started, or when the conduct giving rise to those orders (or application or proceedings) occurred.

 

While these amendments will apply retrospectively, they will not create any retrospective criminal liability.  It is necessary for the amendments to the Bankruptcy Act to apply retrospectively to reflect the application of the amendments made to the POCA by Part 1 of Schedule 2 of this Bill.  Those amendments will enable the DPP to transfer to the Commissioner applications for orders and orders (including where the application or order has been made prior to commencement), and allow the Commissioner to apply for proceeds of crime orders (regardless of when the conduct leading to that application occurred).  Applying the amendments to the Bankruptcy Act retrospectively will ensure that Act applies equally to all proceedings under the POCA, regardless of whether they have been commenced by (or transferred to) the Commissioner.

Crimes Act 1914

 

Item 151 - Paragraph 15YU(4)(a)

 

Item 151 omits ‘Director of Public Prosecutions’ and substitutes ‘responsible authority for the proceeding under that Act’.  This amendment is consequential to the amendments to the POCA in Part 1, Schedule 2 of this Bill and reflects the fact that the DPP will no longer be the only authority that is able to commence proceedings under that Act.

 

Item 152 - At the end of subsection 15YU(4)

 

Item 152 inserts a note at the end of subsection 15YU, which clarifies that the responsible authority may be either the Commissioner or the DPP and that responsibility for proceedings can be transferred between these authorities.

 

Item 153 - Application of amendments - the Crimes Act 1914

 

Item 153 sets out the application of the amendments to the Crimes Act made by Items 151 and 152 of Schedule 2.  These amendments apply in relation proceedings under the POCA, regardless of when they were commenced, or when the conduct giving rise to those proceedings occurred.

 

While this provision is retrospective in application, it does not create any retrospective criminal liability.  It is necessary for the amendments to the Crimes Act to apply retrospectively to reflect the application of the amendments made to the POCA by Part 1 of Schedule 2 of this Bill.  The amendments to the POCA will enable the DPP to transfer to the Commissioner applications for orders and orders (including where the application or order has been made prior to commencement), and allow the Commissioner to apply for proceeds of crime orders (regardless of when the conduct leading to that application occurred).  Applying the amendments to the Crimes Act retrospectively will ensure that Part IAE of that Act applies equally to all proceedings under the POCA, regardless of whether they have been commenced by (or transferred to) the Commissioner.

 

Crimes Legislation Amendment (Serious and Organised Crime) Act 2010

 

Item 154 - Paragraphs 107(2)(b) and (c) of Schedule 2

 

Item 154 omits ‘DPP’ from paragraphs 107(2)(b) and (c) and substitutes ‘responsible authority’.  This amendment will ensure that if a proceeding that relies upon the transitional provisions in section 107 is transferred under new section 315B inserted by Item 3 of Schedule 2 of this Bill, the Commissioner will be able to receive a copy of the varied application under paragraph 107(2)(b) and adduce additional material to the court under paragraph 107(2)(c).

 



Family Law Act 1975

 

Item 155 - Subsection 4(1) (definition of DPP )

 

This item repeals the definition of ‘DPP’ in subsection 4(1) of the FLA.  This term is being replaced throughout the FLA by the term ‘proceeds of crime authority’, which will be defined  in new section 4C (inserted by Item 163, Schedule 2 of this Bill) and will refer to a list of persons and bodies able to take action under relevant Commonwealth, State and Territory proceeds of crime laws.   

 

Item 156 - Subsection 4(1) (definition of forfeiture application )

 

This item removes the words ‘under the Proceeds of Crime Act 2002’ from the definition of ‘forfeiture application’ in subsection 4(1).  This, in conjunction with the new definition of ‘forfeiture order’ inserted by Item 157 below, will extend this definition to also include applications for forfeiture orders made under a State or Territory proceeds of crime law, as well as applications for a forfeiture order under the POCA. 

 

Enabling the courts in FLA property settlement and spouse maintenance proceedings to take account of State and Territory forfeiture applications as well as Commonwealth forfeiture applications will assist in determining the extent of a person’s property for the purpose of those proceedings.  It will also prevent parties from attempting to avoid the operation of State and Territory proceeds of crime legislation by instituting FLA property settlement proceedings in order to effect a redistribution of their property to an innocent spouse.

 

Item 157 - Subsection 4(1) (definition of forfeiture order )

 

This item replaces the definition of ‘forfeiture order’ in subsection 4(1) with a new definition.  The new definition refers to a forfeiture order under the POCA or a State or Territory proceeds of crime law, provided it is of a kind declared by the regulations to be a forfeiture order for the purposes of this definition.  ‘State or Territory proceeds of crime law’ is separately defined, as outlined in Item 162 of Schedule 2 of this Bill.

 

Enabling courts in FLA property settlement and spouse maintenance proceedings to take account of State and Territory forfeiture orders as well as Commonwealth forfeiture orders will assist in determining the extent of a person’s property for the purpose of those proceedings.  It will also prevent parties from attempting to avoid the operation of State and Territory proceeds of crime legislation by instituting FLA property settlement proceedings in order to effect a redistribution of their property to an innocent spouse.

 



Item 158 - Subsection 4(1)

 

This item inserts a definition of ‘freezing order’ into the list of definitions in subsection 4(1).  The definition refers to a freezing order under the POCA or a State or Territory proceeds of crime law, provided it is of a kind declared by regulations to be a freezing order for the purposes of this definition.  ‘State or Territory proceeds of crime law’ is separately defined, as outlined in Item 162 of Schedule 2.

 

Enabling courts in FLA property settlement and spouse maintenance proceedings to take account of State and Territory freezing orders as well as Commonwealth freezing orders will assist in determining the extent of a person’s property for the purpose of those proceedings.  It will also prevent parties from attempting to avoid the operation of State and Territory proceeds of crime legislation by instituting FLA property settlement proceedings in order to effect a redistribution of their property to an innocent spouse.

 

Item 159 - Subsection 4(1)

 

This item inserts a reference in subsection 4(1) to the new definition of ‘proceeds of crime authority’, proposed to be inserted by new section 4C in Item 163 of Schedule 2.  It also inserts a note to alert the reader that new section 4C provides for different proceeds of crime authorities in relation to orders under the POCA and State or Territory proceeds of crime laws. 

 

Item 160 - Subsection 4(1) (paragraphs (aa), (a) and (b) of the definition of proceeds of crime order )

 

This item removes the words ‘under the Proceeds of Crime Act 2002 ’ from the definition of ‘proceeds of crime order’ in subsection 4(1).  This amendment is necessary to align the references to ‘freezing order’, ‘restraining order’ and ‘forfeiture order’ in the definition of ‘proceeds of crime order’ with the definitions of those orders being inserted into subsection 4(1), which include State and Territory orders, as well as Commonwealth orders.

 

Item 161 - Subsection 4(1)

 

Item 161 inserts a definition of ‘restraining order’ into the list of definitions in subsection 4(1).  The definition refers to a restraining order under the Proceeds of Crime Act 2002 (Cth) or a State or Territory proceeds of crime law, provided it is of a kind declared by regulations to be a restraining order for the purposes of this definition.  ‘State or Territory proceeds of crime law’ is separately defined, as outlined in Item 162 of Schedule 2.

 

Enabling courts in FLA property settlement and spouse maintenance proceedings to take account of State and Territory restraining orders as well as Commonwealth restraining orders will assist in determining the extent of a person’s property for the purpose of those proceedings.  It will also prevent parties from attempting to avoid the operation of State and Territory proceeds of crime legislation by instituting FLA property settlement proceedings in order to effect a redistribution of their property to an innocent spouse.

 

Item 162 - Subsection 4(1)

 

Item 162 inserts a definition of ‘State or Territory proceeds of crime law’ into the list of definitions in subsection 4(1).  The definition provides that relevant State or Territory proceeds of crime laws are those declared by regulations to be laws that correspond to the POCA.  The proposed definition of ‘State or Territory proceeds of crime law’ has been constructed in a similar way to the definition of ‘corresponding law’ in the POCA.

 

Item 163 - After section 4B

 

Item 163 inserts a new subsection (subsection 4C) defining ‘proceeds of crime authority’.  This definition outlines which authorities are able to initiate and conduct proceeds of crime proceedings under relevant Commonwealth, State and Territory legislation. 



Subsection 4C(2) explains that for the purposes of a restraining order or a forfeiture order, or an application for a forfeiture order, under the POCA (or any proceedings, orders, powers, functions or duties under the FLA related to, or arising out of, such an order or application), the proceeds of crime authority means the Commissioner or the DPP, whichever is responsible for the order or application.

Subsection 4C(3) explains that for the purposes of a freezing order under the POCA (or any proceedings, orders, powers, functions or duties under the FLA related to, or arising out of, such a freezing order), the proceeds of crime authority means the Commissioner or the DPP.

 

Subsection 4C(4) clarifies that for the purposes of a proceeds of crime order, or an application for a forfeiture order, under a State or Territory proceeds of crime law (or any proceedings, orders, powers, functions or duties under the FLA related to, or arising out of, such an order or application), a proceeds of crime authority is a person or body prescribed by the regulations.  Under this subsection, the Regulations will be able to specify that a particular person or body is a proceeds of crime authority, in relation to a particular provision of the FLA, for the purposes of a class of proceeds of crime order or forfeiture application under a State or Territory proceeds of crime law.

 

Item 164 - Paragraph 79B(3)(b)

 

This item substitutes the reference to ‘the DPP’ in paragraph 79B(3)(b) with ‘proceeds of crime authority’.  Currently under paragraph 79B(3)(b), notification given to a person by the DPP that certain property is covered by a proceeds of crime order or forfeiture application triggers a requirement for that person to notify the Registry Manager of that order or application.  The inclusion of a reference to the ‘proceeds of crime authority’ in paragraph 79B(3)(b) will ensure that any notification given to a person by the Commissioner or a prescribed State and Territory proceeds of crime authority, of a proceeds of crime order or forfeiture application will also trigger the notification requirement.

 

Item 165 - Subsection 79B(3)

 

This item amends subsection 79B(3) so that it is supplemented by a requirement that a person, when notifying the Registry Manager in writing of the proceeds of crime order or forfeiture application mentioned in subparagraphs 79B(3)(b)(i) or (ii), must also give to the Registry Manager a copy of any written notification from the proceeds of crime authority, and a copy of any such order or application that accompanied the written notification.

 

Item 166 - Subsections 79C(1A), (2), (3) and(4)

 

This item substitutes all references to the ‘DPP’ with ‘proceeds of crime authority’ in subsections 79C(1A), (2), (3) and (4).  These amendments are required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 167 - Paragraphs 79D(1)(a) and (b)

 

This item substitutes references to the ‘DPP’ with ‘proceeds of crime authority’ in subsections 79D(1)(a) and (b).  These amendments are required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 168 - Subsection 79D(2)

 

This item substitutes the reference to the ‘DPP’ with ‘proceeds of crime authority’ in subsection 79D(2).  These amendments are required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 169 - Subsection 79D(3)

 

This item substitutes the reference to ‘the DPP’s’ with ‘the proceeds of crime authority’s’ in subsection 79D(3).  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 1 70 - Subsection 79D(3)

 

This item substitutes all references to ‘the DPP’ with ‘the authority’ in subsection 79D(3) of the FLA. The reference to ‘authority’ is a reference to the ‘proceeds of crime authority’.  These amendments are required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

Item 171 - Subsection 79E(1)

 

Item 171 substitutes the reference to ‘The DPP’ with ‘The proceeds of crime authority’ in subsection 79E(1).  The heading is also amended to replace the reference to ‘DPP’ with ‘proceeds of crime authority’.  These amendments are required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 172 - Subsection 79E(1)

 

Item 172 substitutes the reference to ‘DPP’ with ‘authority’ in subsection 79E(1).  The reference to ‘authority’ is a reference to the ‘proceeds of crime authority’.  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 173 - Subsection 79E(2)

 

This item substitutes the phrase ‘DPP intervenes, the DPP’ with ‘proceeds of crime authority intervenes, the authority’ in subsection 79E(2).  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 174 - Paragraph 90M(3)(b)

 

This item substitutes the reference to ‘DPP’ with ‘proceeds of crime authority’ in paragraph 90M(3)(b).  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 175 - Subsection 90M(3)

 

This item amends subsection 90M(3) so that it is supplemented by a requirement that a person, when notifying the Registry Manager in writing of the proceeds of crime order or forfeiture application mentioned in subparagraphs 90M(1)(b)(i) and (ii), must also give to the Registry Manager a copy of any written notification from the proceeds of crime authority, and a copy of any such order or application that accompanied the written notification. 

 

Item 176 - Subsections 90N(1A), (2), (3) and (4)

 

This item substitutes the term ‘DPP’ with ‘proceeds of crime authority’ in subsections 90N(1A), (2), (3) and (4).  These amendments are required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 



Item 177 - Paragraphs 90P(1)(a) and (b)

 

This item substitutes the term ‘DPP’ with ‘proceeds of crime authority’ in paragraphs 90P(1)(a) and (b).  These amendments are required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 178 -  Subsection 90P(2)

 

This item substitutes the term ‘DPP’ with ‘proceeds of crime authority’ in subsection 90P(2).  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 179 - Subsection 90P(3)

 

This item substitutes the term ‘DPP’s’ with ‘proceeds of crime authority’s’ in subsection 90P(3).  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 180 - Subsection 90P(3)

 

This item substitutes the term ‘DPP’ with ‘authority’ in subsection 90P(3).  The reference to ‘authority’ refers to the proceeds of crime authority that consents or makes an application for a stay to be lifted under subsection 90P(1) and (2).  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 181 - Subsection 90Q(1)

 

This item substitutes the term ‘The DPP’ with ‘The proceeds of crime authority’ in subsection 90Q(1).  The heading of subsection 90Q(1) is also amended by removing the reference to ‘DPP’ to ‘proceeds of crime authority’.  These amendments are required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 182 - Subsection 90Q(1)

 

This item substitutes the term ‘the DPP’ with ‘the authority’ in subsection 90Q(1).  The reference to ‘authority’ refers to the proceeds of crime authority.  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 183 - Subsection 90Q(2)

 

This item substitutes the phrase ‘DPP intervenes, the DPP’ with ‘proceeds of crime authority intervenes, the authority’ in subsection 90Q(2).  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

Item 184 - Paragraph 90VA(3)(b)

 

This item substitutes the term ‘DPP’ with ‘proceeds of crime authority’ in paragraph 90VA(3)(b).  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 185 - Subsection 90VA(3)

 

This item amends subsection 90VA(3) so that it is supplemented by a requirement that a person, when notifying the Registry Manager in writing of the proceeds of crime order or forfeiture application mentioned in subparagraphs 90VA(1)(b)(i) and (ii), must also give to the Registry Manager a copy of any written notification from the proceeds of crime authority, and a copy of any such order or application that accompanied the written notification. 

 

Item 186 - Subsections 90VB(2), (3), (4) and (5)

 

This item substitutes the term ‘DPP’ with ‘proceeds of crime authority’ in subsections 90VB(2), (3), (4) and (5).  These amendments are required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 187 - Paragraphs 90VC(1)(a) and (b)

 

This item substitutes the term ‘DPP’ with ‘proceeds of crime authority’ in paragraphs 90VC(1)(a) and (b).  These amendments are required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 188 - Subsection 90VC(2)

 

This item substitutes the term ‘DPP’ with ‘proceeds of crime authority’ in subsection 90VC(2).  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 189 - Subsection 90VC(3)

 

This item substitutes the term ‘DPP’s’ with ‘proceeds of crime authority’s’ in subsection 90VC(3).  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 190 - Subsection 90VC(3)

 

This item substitutes the term ‘DPP’ with ‘authority’ in subsection 90VC(3).  The reference to ‘authority’ refers to the proceeds of crime authority.  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 



Item 191 - Subsection 90VD(1)

 

This item substitutes the term ‘The DPP’ with ‘The proceeds of crime authority’ in subsection 90VD(1).  The heading is also amended to include the new reference to ‘proceeds of crime authority’. These amendments are required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 192 - Subsection 90VD(1)

 

This item substitutes the term ‘the DPP’ with ‘the authority’ in subsection 90VD(1).  The reference to ‘authority’ refers to the proceeds of crime authority.  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 193 -Subsection 90VD(2)

 

This item substitutes the phrase ‘DPP intervenes, the DPP’ with ‘proceeds of crime authority intervenes, the authority’ in subsection 90VD(2).  This amendment is required as a result of the inclusion of additional proceeds of crime authorities under the FLA as outlined in Item 163 of Schedule 2.

 

Item 194 - Application of amendments - the Family Law Act 1975

Item 194 sets out the application of the amendments to the FLA in Items 155 to 193. 

The amendments apply in relation to proceeds of crime orders or applications for forfeiture orders made at or after the commencement of those amendments and not before.  This is to ensure that criminal liability is not applied to a person for failing to notify a Court/Registry Manager of a proceeds of crime order or forfeiture application made before these amendments commence.

 

The amendments apply in relation to proceedings under the FLA regardless of whether the proceedings started, or the conduct giving rise to the proceeds of crime orders (or applications for forfeiture orders) occurred, or is suspected to have occurred, before, at or after the commencement of these amendments.  While this will mean that the amendments will apply retrospectively to proceedings under the FLA and conduct, retrospective criminal liability will not be created. 

 

It is necessary for these provisions to operate retrospectively in relation to FLA proceedings so that once a Commonwealth, State or Territory proceeds of crime order or forfeiture application is made, any family law proceedings on foot, which commenced prior to the commencement of these provisions, may be stayed in appropriate circumstances. 

 

The conduct to which these proceeds of crime orders or forfeiture applications relate may also have occurred prior to commencement.  Retrospective application of these provisions in relation to conduct will ensure that proceeds of crime orders or forfeiture applications that apply to that conduct, and are sought after the commencement of these amendments, may be considered for the purposes of staying family law proceedings.

 

Foreign Evidence Act 1994

 

Item 195 - Paragraph 25A(2)(a)

 

Item 195 omits ‘Director of Public Prosecutions’ in paragraph 25A(2)(a) and substitutes ‘responsible authority (under that Act) in relation to the proceeding’.  This amendment is consequential to the amendments to the POCA made by Part 1 of Schedule 2 of this Bill and reflects the fact that the DPP is no longer the only authority that is able to commence proceedings under that Act.

 

Item 196 - At the end of subsection 25A(2)

 

Item 196 inserts a note at the end of subsection 25A(2) to clarify that under the POCA, the responsible authority is the Commissioner or the DPP, and that responsibility can also be transferred between these authorities.

 

Item 197 - Application of amendments - the Foreign Evidence Act 1994

 

Item 197 sets out the application of the amendments to the Foreign Evidence Act made by Items 195 and 196.  These amendments apply in relation proceedings under the POCA, regardless of when those proceedings were commenced, or when the conduct giving rise to those proceedings occurred.

 

While this provision is retrospective in application, it does not create any retrospective criminal liability.  It is necessary for the amendments to the Foreign Evidence Act to apply retrospectively to reflect the application of the amendments made to the POCA by Part 1 of Schedule 2 of this Bill.  The amendments to the POCA will enable the DPP to transfer to the Commissioner applications for orders and orders (including where the application or order has been made prior to commencement), and allow the Commissioner to apply for proceeds of crime orders (regardless of when the conduct leading to that application occurred).  Applying the amendments to the Foreign Evidence Act retrospectively will ensure that that Act applies equally to all proceedings under the POCA, regardless of whether they have been commenced by (or transferred to) the Commissioner.

 

International Criminal Court Act 2002

 

Item 198 - Section 4

 

Item 198 inserts a new definition of ‘proceeds of crime authority’ that will align with the definition of that phrase being inserted into the POCA by Part 1 of Schedule 2 of this Bill.  It also inserts a note that, under POCA, this will be either the Commissioner or the DPP, and refers to where this definition can be found in the POCA.

Item 199 - Subsection 82(1)

 

Item 199 omits the reference to ‘the DPP’ in subsection 82(1) and substitutes a reference to ‘a proceeds of crime authority’, as defined in the definition inserted by Item 198.  This will allow the Attorney-General to authorise either the Commissioner or the DPP to apply for a restraining order against certain property if requested by the International Criminal Court.  This amendment is consequential to the amendments to the POCA under Part1 of Schedule 2 of this Bill and reflects the fact that both the Commissioner and the DPP will have a role in undertaking proceeds of crime litigation.

 

Item 200 - Subsection 82(3)

 

Item 200 omits the reference to ‘the DPP’ in subsection 82(3) and substitutes a reference to ‘a proceeds of crime authority.  This amendment will allow the proceeds of crime authority authorised by the Attorney-General to apply for a restraining order.

 

Item 201 - Paragraph 82(5)(b)

 

Item 201 omits ‘DPP’s’ in paragraph 82(5)(b).  This amendment is consequential to the amendment in Item 199 and reflects that the DPP will no longer be the sole authority that can be given an authorisation under subsection 82(1).

 

Item 202 - Subsections 155(2) and 156(1)

 

Item 202 omits references to ‘the DPP’ in subsections 155(2) and 156(1) and substitutes references to ‘a proceeds of crime authority’.  The change to subsection 155(2) will allow the Attorney-General to authorise either the Commissioner or the DPP to apply for the registration of a forfeiture order.  The change to subsection 156(1) will provide that if the Commissioner or the DPP applies to a court for registration of an order in accordance with authorisation under section 155, the court must register the order.  This amendment is consequential to the amendments to the POCA under Part1 of Schedule 2 of this Bill and reflects the fact that both the Commissioner and the DPP will have a role in undertaking proceeds of crime litigation.

 

Items 203 and 204 - Subsection 156(2) and paragraph 156(2)(a)

 

Items 203 and 204 replace the reference to ‘The DPP’ with a reference to ‘The proceeds of crime authority’ and a subsequent reference to ‘DPP’ with ‘authority’.  These items are consequential to Item 202 and reflect that either the Commissioner or the DPP may be authorised to register a forfeiture order under section 155.  This amendment will require whichever authority that has been authorised under section 155 to give notice of the application to register a forfeiture order to specified persons that he or she has reason to suspect may have an interest in the property and such other persons as the court directs.

 



Item 205 - Subsection 156(3)

 

Item 205 omits ‘DPP’ in subsection 156(3) and substitutes ‘proceeds of crime authority’.  This amendment is consequential to Item 202 and reflects that either the Commissioner or the DPP may be authorised to register a forfeiture order under section 155.  This amendment provides that a court must consider the application without notice having been given if the authority that has been authorised under section 155 requests the court to do so.

 

Item 206 - Paragraph 157(2)(a)

 

Item 206 omits ‘the DPP having applied for the order were a reference to the DPP’ from paragraph 157(2)(a) and substitutes ‘a proceeds of crime authority having applied for the order were a reference to the authority’.  This item is consequential to the amendments to the POCA under Part 1 of Schedule 2 of this Bill and reflects the fact that either the Commissioner or DPP will be able to carry on litigation under the POCA.  The effect of this amendment is that section 68 of the POCA will apply in relation to the forfeiture order as if the reference in subparagraph 68(1)(b)(i) of the POCA to the DPP or the Commissioner having applied for the order were a reference to either authority having applied for registration of the order under section 156 of the International Criminal Court Act.

 

Item 207 - Subsection 158(8)

 

Item 207 omits ‘DPP’ in subsection 158(8) and substitutes ‘proceeds of crime authority authorised under subsection 155(2)’.  This item is consequential to Item 202 and reflects that the Attorney-General can authorise either the Commissioner or the DPP to register a forfeiture order.  This amendment clarifies that where a person makes an application under section 158, they are required to give notice of that application to the proceeds of crime authority that was authorised by the Attorney-General under subsection 155(2).  This will ensure that the appropriate authority is given notice of the application.

 

Item 208 - Subsection 158(9)

 

Item 208 omits ‘The DPP’ in subsection 158(9) and substitutes ‘That proceeds of crime authority’. This item is consequential to Item 202 and reflects that the Attorney-General can authorise either the Commissioner or the DPP to register a forfeiture order.  This amendment clarifies that where an application is made under section 158, it is the authority that has been authorised by the Attorney-General under subsection 155(2) that is to be the party to proceedings for that application.

 

Item 209 - Application of amendments - the International Criminal Court Act 2002

 

Item 209 sets out the application of the amendments to the International Criminal Court Act made by Items 198 to 208.  The amendments to the International Criminal Court Act apply in relation to requests made by the International Criminal Court to the Attorney-General regardless of when the request was made or when the conduct giving rise to that request occurred.

While this provision is retrospective in application, it does not create any retrospective criminal liability.  The retrospective application of this amendment will not unfairly prejudice the rights of a person who may be subject to an order, as these orders can already by registered and enforced by the DPP (subject to the Attorney-General’s authorisation) under the Act as it currently stands. 

 

It is necessary for these amendments to operate retrospectively to ensure that the Attorney-General is able to authorise the most appropriate agency to deal with a request in a timely and effective manner.  Retrospective application will also ensure that the Attorney-General can authorise the Commissioner to register a restraining order or forfeiture order, regardless of when the conduct leading to that order occurred.  As the conduct giving rise to the order may continue over several years or may not be discovered immediately, this item will give certainty as to when the Attorney-General is able to authorise the Commissioner to register an order.

 

International War Crimes Tribunals Act 1995

 

Item 210 - Section 4

 

Item 210 inserts a new definition of ‘proceeds of crime authority’ into section 4 that gives the term the same meaning as it will have under the POCA.  It also inserts a note that, under the POCA, a proceeds of crime authority is either the Commissioner or the DPP, and refers to where this definition can be found in the POCA.  This amendment is consequential to the amendments to the POCA under Part 1, Schedule 2 of this Bill.

 

Item 211 - Subsection 44(1)

 

Item 211 omits the reference to ‘the DPP’ in subsection 44(1) and substitutes a reference to ‘a proceeds of crime authority’, as defined in the definition inserted by Item 210.  This will allow the Attorney-General to authorise either the Commissioner or the DPP to apply for the registration of a forfeiture order if requested by the International War Crimes Tribunal.  This amendment is consequential to the amendments to the POCA in Part 1, Schedule 2 of this Bill and reflects the fact that both the Commissioner and the DPP will have a role in undertaking proceeds of crime litigation.

 

Item 212 - Subsection 45(1)

 

Item 212 omits ‘If the Director of Public Prosecutions’ from subsection 45(1) and substitutes ‘ If a proceeds of crime authority’ .  This amendment is consequential to Item 211, and reflects that either the Commissioner or the DPP may be authorised by the Attorney-General to register an order.  This amendment will ensure that where the relevant authority applies to a court for registration in accordance with the authorisation given to them, the court must register the order.

 

Item 213 - Subsection 45(1)

 

Item 213 omits ‘direct the Director of Public Prosecutions’ from subsection 45(1) and substitutes ‘direct the authority’.  This amendment is consequential to the amendment in Item 211 and reflects that either the Commissioner or the DPP may be authorised by the Attorney-General to register an order.  This amendment clarifies which is the relevant authority for the purpose of this subsection .

 

Item 214 - Paragraph 46(1A)(a)

 

Item 214 omits ‘the Director of Public Prosecutions having applied for the order were a reference to the Director of Public Prosecutions’ and substitutes ‘a proceeds of crime authority having applied for the order were a reference to the authority’.  This item is consequential to the amendments to the POCA under Part 1, Schedule 2 of this Bill and reflects the fact that either the Commissioner or DPP will be able to carry on litigation under the POCA. 

 

The effect of this amendment is that section 68 of the POCA will apply in relation to the forfeiture order as if the reference in subparagraph 68(1)(b)(i) of the POCA to the DPP or the Commissioner having applied for the order were a reference to either authority having applied for registration of the order under section 45 of the International War Crimes Tribunal Act.

 

Item 215 - Subsection 46A(8)

 

Item 215 omits ‘Director of Public Prosecutions’ in subsection 46A(8) and substitutes ‘proceeds of crime authority authorised under subsection 45(1)’.  This item is consequential to Item 211 and reflects that the Attorney-General can authorise either the Commissioner or the DPP to register a forfeiture order.  This amendment clarifies that where a person makes an application under section 46A, they are required to give notice of that application to the proceeds of crime authority that was authorised by the Attorney-General under subsection 45(1).  This will ensure that the appropriate authority is given notice of the application.

 

Item 216 - Subsection 46A(9)

 

Item 216 omits ‘The DPP’ in subsection 46A(9) and substitutes ‘That proceeds of crime authority’.  This item is consequential to Item 211 and reflects that the Attorney-General can authorise either the Commissioner or the DPP to register a forfeiture order.  This amendment clarifies that where an application is made under section 46A, it is the authority that has been authorised by the Attorney-General under subsection 45(1) that is to be the party to proceedings for that application.

 

Item 217 - Application of amendments - the International War Crimes Tribunals Act 1995

 

Item 217 sets out the application of the amendments to the International War Crimes Tribunals Act made by Items 210 to 216.  The amendments to the International War Crimes Tribunals Act apply in relation to requests made by a Tribunal to the Attorney-General regardless of when the request was made or when the conduct giving rise to that request occurred.

 

While this provision is retrospective in application, it does not create any retrospective criminal liability.  The retrospective application of these amendments will not unfairly prejudice the rights of a person who may be subject to an order, as these orders can already by registered and enforced by the DPP (subject to the Attorney-General’s authorisation) under the Act as it currently stands. 

 

It is necessary for these amendments to operate retrospectively to ensure that the Attorney-General is able to authorise the most appropriate agency to deal with a request in a timely and effective manner.  Retrospective application will also ensure that the Attorney can authorise the Commissioner to register a forfeiture order, regardless of when the conduct leading to that order occurred.  As the conduct giving rise to the order may continue over several years or may not be discovered immediately, this item will give certainty as to when the Attorney is able to authorise the Commissioner to register an order.

 

Mutual Assistance in Criminal Matters Act 1987

 

Item 218 - Subsection 3(1) (definition of DPP)

 

Item 218 repeals the definition of DPP, as all references to the DPP that are currently in the Mutual Assistance in Criminal Matters Act will be replaced by the term inserted by Item 219.  This amendment is consequential to the amendments to the POCA in Part 1, Schedule 2 of this Bill.

 

Item 219 - Subsection 3(1)

 

Item 219 inserts a new definition of ‘proceeds of crime authority’ that has the same meaning as that term will have under the POCA pursuant to amendments proposed in Part 1, Schedule 2 of this Bill.  It also inserts a note to clarify that, under the POCA, this will be either the Commissioner or the DPP, and refers to where this definition can be found in the POCA.

 

Item 220 - Subsections 34(1), (2) and (3) and 34A(1)

 

Item 220 omits ‘the DPP’ and substitutes ‘a proceeds of crime authority’ in subsections 34(1), (2) and (3) and subsection 34A(1), as defined by the provision to be inserted by Item 219.  This will allow the Attorney-General to authorise either the Commissioner or the DPP to apply for the registration of a foreign forfeiture order, foreign pecuniary penalty order or foreign restraining order in a specified court.  This amendment is consequential to the amendments to the POCA under Part 1 of Schedule 2 of this Bill and reflects the fact that both the Commissioner and the DPP will have a role in undertaking proceeds of crime litigation.

 

The effect of the amendment in subsection 34A(1) will be that if the Commissioner or the DPP applies to a court for registration of a foreign order in accordance with such an authorisation, the court must register the order accordingly.

 

Item 221 and 222 - Subsection 34A(2) and paragraph 34A(2)(a)

 

Items 221 and 222 omit references to the DPP in subsection 34A(2) and substitute a reference to ‘The proceeds of crime authority’ and a subsequent reference to ‘the authority’.  These items are consequential to Item 220 and reflect that either the Commissioner or the DPP may be authorised to register a foreign order under section 34.  Under this amendment, whichever authority has been authorised under section 34 will be required to give notice of the application to register a foreign order to specified persons that he or she has reason to suspect may have an interest in the property and such other persons as the court directs.

 

Item 223 - Subsection 34A(3)

 

Item 223 omits ‘DPP’ in subsection 34A(3) and substitutes ‘proceeds of crime authority’.  This amendment is consequential to Item 220 and reflects that either the Commissioner or the DPP may be authorised to register a foreign order under section 34.  This amendment provides that a court must consider the application to register a foreign order without notice having been given if the authority that has been authorised under section 34 requests the court to do so.

 

Item 224 - Paragraph 34B(2)(a)

 

Item 224 omits ‘the DPP’ and substitutes ‘a proceeds of crime authority’.  This item is consequential to the amendments to the POCA under Part 1 of Schedule 2 of this Bill and reflects the fact that either the Commissioner or DPP will be able to carry on proceedings under that Act. 

 

The effect of this amendment is that section 68 of the POCA will apply in relation to the forfeiture order as if the reference in subparagraph 68(1)(b)(i) of the POCA to the DPP or the Commissioner having applied for the order were a reference to the foreign forfeiture order having been made.

 

Item 225 - Paragraph 34B(2)(b)

 

Item 225 omits ‘DPP’ from paragraph 34B(2)(b) and substitutes ‘authority’. This item is consequential to Item 220 and reflects that either the Commissioner or the DPP will be able to apply for registration of an order under section 34A of the Mutual Assistance in Criminal Matters Act.

 

Item 226 - Subsection 34C(8)

 

Item 226 omits ‘DPP’ in subsection 34C(8) and substitutes ‘proceeds of crime authority authorised under section 34’.  This item is consequential to Item 220 and reflects that the Attorney-General can authorise either the Commissioner or the DPP to register a foreign order.  This amendment clarifies that where a person makes an application under section 34C, they are required to give notice of that application to the proceeds of crime authority that was authorised by the Attorney-General under subsection 34.  This will ensure that the appropriate authority is given notice of the application.

 

Item 227 - Subsection 34C(9)

 

Item 227 omits ‘The DPP’ in subsection 34C(9) and substitutes ‘That proceeds of crime authority’.  This item is consequential to Item 220 and reflects that the Attorney-General can authorise either the Commissioner or the DPP to register a foreign order.  This amendment clarifies that where an application is made under section 34C, it is the authority that has been authorised by the Attorney-General under subsection 34 that is to be the party to proceedings for that application.

 

Item 228 - Subsection 34G(1)

 

Item 228 omits ‘DPP’ in subsection 34G(1) and substitutes ‘proceeds of crime authority authorised under section 34’.  This amendment is consequential to the amendment in Item 220 and reflects that the Attorney-General will be able to authorise either the DPP or the Commissioner to apply for a foreign order.  This amendment will allow the Attorney-General to direct whichever authority was originally authorised under section 34 to apply for the registration of the foreign pecuniary penalty order or foreign restraining order to cancel that registration. 

 

Item 229 - Subsection 34G(3)

 

Item 229 omits ‘the DPP’ and substitutes ‘a proceeds of crime authority’.  This item is consequential to Item 220 and requires that where either the Commissioner or the DPP applies for the cancellation of a foreign pecuniary penalty order or a foreign restraining order in accordance with a direction under subsection 34G(1), the court must cancel the registration accordingly.

 

Item 230 - Subsections 34J(1) and 34K(1)

 

Item 230 omits ‘the DPP’ from subsections 34J(1) and 34K(1) and substitutes ‘a proceeds of crime authority’.  The amendment to subsection 34J(1) will allow the Attorney-General to authorise either the Commissioner or the DPP to apply to a specified court for a restraining order.  The amendment to subsection 34K(1) will allow the Commissioner or the DPP, if so authorised, to apply for such a restraining order. This amendment is consequential to the amendments to the POCA in Part 1, Schedule 2 of this Bill and reflects the fact that both the Commissioner and the DPP will have a role in undertaking proceeds of crime litigation. 

 

Item 231 - Paragraph 34K(3)(b)

 

Item 231 omits ‘DPP’s’ from paragraph 34K(3)(b).  This amendment is consequential to Item 230 and reflects that the DPP will no longer be the only agency that is authorised to apply for a restraining order.

 

Item 232 - Paragraph 34M(1)(b)

 

Item 232 omits ‘the DPP’ and substitutes ‘the proceeds of crime authority authorised under section 34J’ in paragraph 34M(1)(b).  This amendment is consequential to Item 230 and will allow the DPP or the Commissioner, whichever has been authorised by the Attorney-General under section 34J, to apply to extend the operation of a restraining order.  This amendment ensures that the authority that is authorised to apply for the restraining order, may also apply for that order to be extended.

 



Item 233 - Paragraph 35(a)

 

Item 233 omits ‘DPP’ and substitutes ‘proceeds of crime authority authorised under section 34’ in paragraph 35(a).  This item is consequential to Item 220 and reflects that the Attorney-General will be able to authorise either the DPP or the Commissioner to register a foreign restraining order.  This amendment will allow the DPP or the Commissioner, whichever has been authorised by the Attorney-General, to apply for an order for the Official Trustee to take custody and control of all or a specified part of property covered by the restraining order.

 

Item 234 - Subsection 35A(1)

 

Item 234 omits ‘The DPP must give written notice of an application for an order under section 35 in respect of property to’ and substitutes ‘A proceeds of crime authority that applies for an order under section 35 in respect of property must give written notice of the application to’.  This item is consequential to Item 233 and reflects that either the DPP or the Commissioner may be the authority that is responsible for applying for an order under section 35.  This amendment clarifies that the authority that applied for the order under section 35, is also the authority required to provide notice under section 35A.

 

Item 235 - Paragraph 35A(1)(b)

 

Item 235 omits ‘ DPP’ and substitutes ‘authority’ in paragraph 35A(1)(b).  This amendment is consequential to the amendment in Item 234 and clarifies who must be notified of an application under section 35.

 

Item 236 - Subsection 35A(2)

 

Item 236 omits ‘DPP’ from subsection 35A(2) and substitutes ‘proceeds of crime authority’.  This amendment is consequential to Item 233 and allows the court to direct the proceeds of crime authority referred to in subsection 35A(1) (ie the authority that applied for the order under section 35) to give or publish notice of the application to a specified person or class of persons.

 

Item 237 - Section 35E

 

Item 237 omits ‘by the DPP on behalf of the Commonwealth’ from section 35E and substitutes ‘on behalf of the Commonwealth by the proceeds of crime authority authorised under section 34’.  This item is consequential to the amendment in Item 220, which amends section 34 to allow the Commissioner as well as the DPP to be authorised by the Attorney-General to apply for the registration of a foreign order.  This amendment will allow a court to make an order in relation to the giving or carrying out of an undertaking by the authority that is authorised by the Attorney-General under section 34, with respect to payment of damages or costs.

 

Item 238 - Subsection 35L(2)

 

Item 238 omits ‘DPP’ from subsection 35L(2) and substitutes ‘proceeds of crime authority authorised under section 34’.  This amendment is consequential to the amendment in Item 220 and reflects that either the Commissioner or the DPP will be able to be authorised by the Attorney-General to apply for the registration of a foreign order.  This amendment will enable a registration authority to record in the register a charge created by section 35J on the application of either the DPP or the Commissioner, whichever is the authority authorised under section 34 to register the order.

 

Item 239 - Application of amendments - the Mutual Assistance in Criminal Matters Act 1987

 

Item 239 sets out the application of the amendments to the Mutual Assistance in Criminal Matters Act. 

 

The amendments to the Mutual Assistance in Criminal Matters Act apply in relation to requests by a foreign country to the Attorney-General, to foreign orders and to proceedings under the Act, regardless of:

 

·        when the request is made

·        when the foreign order was registered

·        when the proceedings started,  or

·        when the conduct giving rise to those requests or proceedings occurred (or is suspected to have occurred).

 

While this provision is retrospective in application, it does not create any retrospective criminal liability.  The retrospective application of these amendments will not unfairly prejudice the rights of a person who may be subject to an order, as these orders can already by registered and enforced by the DPP (subject to the Attorney-General’s authorisation) under the Act as it currently stands. 

 

It is necessary for these amendments to operate retrospectively to ensure that the Attorney-General is able to authorise the most appropriate agency to deal with a request in a timely and effective manner.  Retrospective application will also ensure that the Attorney can authorise the Commissioner to register a foreign order, regardless of when the conduct leading to that order occurred.  As the conduct giving rise to the order may continue over several years or may not be discovered immediately, this item will give certainty as to when the Attorney is able to authorise the Commissioner to register an order.

 

Trade Marks Act 1995

 

Item 240 - Subsection 159(1)

 

Item 240 omits the second occurring reference to ‘the Director of Public Prosecutions’ in subsection 159(1) and substitutes ‘a proceeds of crime authority (or a responsible authority)’.  This amendment is consequential to the amendments to the POCA in Part 1, Schedule 2 of this Bill and reflects the fact that the DPP is no longer the only authority that is able to commence proceedings under that Act.

 



Item 241 - Subsection 159(2) (paragraphs (a) and (b) of the definition of forfeiture order provisions )

 

Item 241 repeals the references to the Proceeds of Crime Act 1987 in the definition of ‘forfeiture order provisions’ in paragraphs 159(2)(a) and (b).  This amendment has been made as these paragraphs are no longer operational, as Commonwealth proceeds of crime matters are now commenced under the Proceeds of Crime Act 2002 .

 

Item 242 - Application of amendments - the Trade Marks Act 1995

 

Item 242 sets out the application of the amendments to the Trade Marks Act made by Items 240 and 241.  The amendment in Item 240 applies in relation to proceedings for the prosecution of a person in respect of an indictable offence against Part 14 of that Act, regardless of when those proceedings were commenced or when the conduct relating to those proceedings occurred (or is suspected to have occurred). 

 

While this provision is retrospective in application, it does not create any retrospective criminal liability.  It is necessary for this item to apply retrospectively to reflect the fact that the amendments made to the POCA by Part 1 of Schedule 2 of this Bill also apply retrospectively. 

 

However, if Division 1 and 2 of Part II of the Proceeds of Crime Act 1987 apply to a proceeding immediately before the commencement of item 240 and 241, those divisions continue to apply as if the amendments in item 240 and 241 had not been made.  This reflects that the DPP (rather than a proceeds of crime authority or responsible authority) is the authority that can commence proceedings under Part II of the Proceeds of Crime Act 1987.  This has been included to ensure the continuity of any proceedings that may be currently underway under the Proceeds of Crime Act 1987.

 

Item 241 will apply in relation to proceedings for the prosecution of a person in respect of an indictable offence against Part 14 of that Act that are instituted at or after commencement, regardless of when the conduct giving rise to those proceedings occurred (or is suspected to have occurred).  This application provision reflects that Commonwealth proceeds of crime proceedings are no longer commenced under the Proceeds of Crime Act 1987, but that there may be existing proceedings that are still being conducted under that Act.  Ensuring that the amendments in Item 241 only apply to proceedings that are instituted at or after the commencement of these items will ensure the continuity of any proceedings that may be currently underway under the Proceeds of Crime Act 1987.

 

Part 2 - Other proceeds of crime amendments

 

Proceeds of Crime Act 2002

 

Item 243 - Subsection 131(1)

 

Item 243 inserts ‘before the application or the order is made’ after ‘has paid’ in section 131(1).  This item also inserts a new heading to subsection 131(1).

 

Currently, section 131 states that a court must reduce the penalty amount under a pecuniary penalty order against a person by an amount that, in the court’s opinion, ‘represents the extent to which tax that the person has paid is attributable to the benefits to which the order relates’ - regardless of when the relevant tax was paid to the Australian Taxation Office.

 

The Tax Law Amendment (2010 Measures No .1) Act 2010 inserted a new provision into the Taxation Administration Act 1953 to allow the Commissioner of Taxation to waive the Commonwealth’s right to payment of all or part of a tax-related liability.  In order to do so, the Commissioner must be satisfied that the waiver would contribute to the commencement, conduct or ending of proceedings under the POCA, and the liability is connected with circumstances associated with those proceedings.  The purpose of this amendment was to facilitate the resolution of matters under the POCA that might otherwise be hindered by processes to enforce a person’s taxation liability.

 

The DPP has suggested a further amendment be made to section 131 of the POCA to further improve the interaction between the collection of tax-related liabilities and proceedings under the POCA.

 

This amendment, in conjunction with the amendment in Item 244, will enable a court to apply different tests in deciding whether to reduce the amount of a pecuniary penalty order to take into account tax paid, based on whether that tax was paid before or after the commencement of proceedings under the POCA. 

 

Under the amendment in this item, a court will be required to reduce the amount of a pecuniary penalty order by an amount that, in the court’s opinion, represents the extent to which the tax that the person has paid before the application for the order is attributable to the benefits to which the order relates.

 

Item 244 - After subsection 131(1)

 

Item 244 inserts a new subsection after subsection 131(1).  This amendment, in conjunction with the amendment in Item 243, will enable a court to apply different tests in deciding whether to reduce the amount of a pecuniary penalty order to take into account tax paid, based on whether that tax was paid before or after the commencement of proceedings under the POCA.

 

Under this amendment, where a person pays tax after the commencement of proceedings, the court will have a discretion regarding whether to reduce the amount of a pecuniary penalty order to reflect the tax paid that is attributable to the benefits to which the order relates (based on whether it is satisfied that it is in the interests of justice to do so).

 

The proposed amendment aims to ensure that a court has a discretion to prevent the frustration of POCA proceedings which have been commenced based on alleged tax fraud  in circumstances where the alleged offender belatedly indicates a willingness to discharge a relevant tax liability (potentially with a specific intention of circumventing or frustrating the POCA proceedings).  It will be a matter for the court as to whether or not it is appropriate to allow a reduction of the amount of the pecuniary penalty order in the circumstances of each case.

Giving the court the discretion to reduce a pecuniary penalty order to take into account tax paid will protect persons who are unable to settle their tax liability prior to the commencement of POCA proceedings for genuine reasons.  This may include, for example, where a tax liability was not raised until after commencement of POCA proceedings, or where a person always intended to pay their tax liability but required time to raise the necessary funds.

Item 245 - Subsection 131(2)

Item 245 omits ‘The Tax’ and substitutes ‘Tax covered by this section’.  This amendment is consequential to the amendments in Items 243 and 244 and reflects that there will be two separate provisions dealing with the reduction of a pecuniary penalty amount within subsection 131.

 

Item 246 - Application of amendments - taking tax into account in pecuniary penalty orders

 

Item 244 sets out the application of the amendments to section 131 in Items 243 to245.  These amendment apply in relation to pecuniary penalty orders if the applications for the orders are made at or after commencement, regardless of when the conduct giving rise to the application for the pecuniary penalty order occurred.

 

While this provision is retrospective in application, it only applies to applications for pecuniary penalty orders that are made on or after commencement.  It does not create any retrospective criminal liability. 

 

As the conduct giving rise to an application for a pecuniary penalty order may continue over several years or may not be discovered immediately, this item will give certainty to courts, legal practitioners and a person who may be subject to a pecuniary penalty order on how these amendments apply.

 

Item 247 - Paragraph 202(5)(ea)

 

Item 247 omits ‘the property of a person’ from subsection 202(5)(ea) and substitutes ‘property that constitutes part of a person’s *wealth’.

Section 202 of the POCA allows a magistrate to make an order requiring a person to produce, or make available one or more ‘property-tracking documents’.   Currently, under paragraph 202(5)(ea) a ‘property-tracking document’ includes 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.

The definition in paragraph 202(5)(ea) is currently limited to documents that are relevant to the current property of a person.  However, the unexplained wealth provisions allow for the confiscation of a person’s ‘wealth’, where it is not satisfied that is was lawfully derived.  Under subsection 179G(1) of the Act, ‘wealth’  includes property owned by the person at any time, property that has been under the effective control of the person at any time and property that has been disposed of or consumed at any time.  A person’s ‘wealth’ is not limited to the current property of the person.

 

This item amends paragraph 202(5)(ea) to ensure that all documents that are relevant to identifying, locating or quantifying property that constitutes part of a person’s wealth can be obtained.

 

Item 248 - Paragraph 202(5)(ea)

 

This item will ensure that the reference to the total value of wealth in this paragraph is consistent with references elsewhere in the Act, by using the phrase ‘the person’s total wealth’ rather than ‘the total value of the person’s wealth’. 

 

Item 249 - Application of amendments - property tracking documents

 

Item 249 sets out the application of the amendments to paragraph 202(5)(ea) in Items 247 to 248.  These amendments apply in relation to production orders if the applications for the production orders are made at or after commencement, regardless of when the conduct giving rise to the application for the production order occurred.

 

While this provision is retrospective in application, it only applies to applications for production orders that are made on or after commencement.  It does not create any retrospective criminal liability.

 

As the conduct giving rise to an application for a production order may continue over several years or may not be discovered immediately, this item will give certainty to courts, legal practitioners and people who may be required to comply with a production order as to how these amendments apply.