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Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015

Schedule 1 Proceeds of crime

   

Proceeds of Crime Act 2002

1  Subsection 266A(2)

Omit all the words after “in that item”, substitute:

                   if:

                     (a)  the person believes on reasonable grounds that the disclosure will serve that purpose; and

                     (b)  a court has not made an order prohibiting the disclosure of the information to the authority for that purpose.

2  Section 315A

Before “A court”, insert “(1)”.

3  At the end of section 315A

Add:

             (2)  However, if:

                     (a)  a * proceeds of crime authority applies for a * forfeiture order relating to particular property; and

                     (b)  a person applies for an order (the exclusion order ) under section 29 or 29A to exclude a specified * interest in that property from a * restraining order; and

                     (c)  the application for the exclusion order has not been withdrawn;

the court may only hear the application for the forfeiture order after the application for the exclusion order has been determined .

4  Section 319

Repeal the section, substitute:

319   Stay of proceedings

             (1)  A court may stay proceedings (the POCA proceedings ) under this Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so.

             (2)  The court must not stay the POCA proceedings on any or all of the following grounds:

                     (a)  on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person subject to the POCA proceedings;

                     (b)  on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against another person in respect of matters relating to the subject matter of the POCA proceedings;

                     (c)  on the ground that:

                              (i)  a person may consider it necessary to give evidence, or to call evidence from another person, in the POCA proceedings; and

                             (ii)  the evidence is or may be relevant (to whatever extent) to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person or any other person;

                     (d)  on the ground that POCA proceedings in relation to another person have been, are to be or may be stayed.

             (3)  Paragraph (2)(a) applies even if the circumstances pertaining to the POCA proceedings are or may be the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings.

             (4)  Paragraph (2)(b) applies even if the subject matter of the POCA proceedings is the same as, or substantially similar to, the matter at issue in the criminal proceedings.

             (5)  Paragraph (2)(d) applies even if the staying of the POCA proceedings would avoid a multiplicity of POCA proceedings.

             (6)  In considering whether a stay of the POCA proceedings is in the interests of justice, the court must have regard to the following matters:

                     (a)  that the POCA proceedings, and any criminal proceedings of a kind referred to in paragraph (2)(a) or (b), should proceed as expeditiously as possible;

                     (b)  the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;

                     (c)  the risk of a * proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;

                     (d)  whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;

                     (e)  any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.

Note:          Examples of orders the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed include an order under section 319A (closed court) or an order prohibiting the disclosure of information.

319A   Closed court

                   A court may order that proceedings under this Act (other than criminal proceedings) be heard, in whole or in part, in closed court if the court considers that the order is necessary to prevent interference with the administration of criminal justice.

5  Application provisions

(1)       Subsection 266A(2) of the Proceeds of Crime Act 2002 , as amended by this Schedule, applies in relation to the disclosure of information after the commencement of this item, whether the information was obtained before or after that commencement.

(2)       Subsection 315A(2) of the Proceeds of Crime Act 2002 , as inserted by this Schedule, applies in relation to an application made after the commencement of this item:

                     (a)  whether the application relates to an interest in property acquired before or after that commencement; and

                     (b)  whether the application relates to conduct that occurred before or after that commencement.

(3)       Sections 319 and 319A of the Proceeds of Crime Act 2002 , as inserted by this Schedule, apply in relation to proceedings instituted or commenced before or after the commencement of this item.