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Criminal Assets Recovery Bill 2001

Part 1—Preliminary

1   Short title

                   This Act may be cited as the Criminal Assets Recovery Act 2001.

2   Commencement

                   This Act shall come into operation on the day on which it receives the Royal Assent.

 

 

3  Principal objects

The principal objects of this Act are:

                     (a)  to provide for the confiscation, without requiring a conviction, of property of a person if the Federal Court finds it to be more probable than not that the person has engaged in serious crime related activities, and

                     (b)   to enable the proceeds of serious crime related activities to be recovered as a debt due to the Crown, and

                     (c)  to enable law enforcement authorities effectively to  identify and recover property.

4  Interpretation

             (1)  In this Act:

assets forfeiture order means an order made under section 22 and in force.

AFP member means a member or special member of the Australian Federal Police.

authorised officer  means:

                     (a)  the DPP or a member of staff of the Office of the DPP, or

                     (b)  the Commissioner or an AFP member, or

                     (c)  a person authorised in writing by the DPP or the Commissioner of the Australian Federal Police either generally or in a special case to act as an authorised officer for the purposes of section 10 (Restraining orders) or Part 4 (Information gathering powers).

                     (c)  a member of the police force of a State or Territory; or

                     (d)  a person in a class of persons declared by the regulations to be within this definition

       bank means:

                     (a)  the Reserve Bank of Australia, or

                     (b)  a bank within the meaning of the Banking Act 1959 , or

                     (c)  a person who carries on State banking within the meaning of paragraph 51 (xiii) of the Constitution

building society means a society registered or incorporated as a building society, permanent building society, co-operative housing society or similar society under a relating to such societies that is in force in State or Territory.

Commissioner means the Commissioner of the Australian Federal Police.

confiscation order means an assets forfeiture order or a proceeds assessment order.

court means a court having jurisdiction under this Act pursuant to section 57.

credit union means a society or other body of persons registered or incorporated as a credit union or similar society under a law in force in a State or Territory relating to a credit union or credit society .

de facto partner of a person means the other party to a relationship in which both parties live together as a couple, but are not married to one another or related by family

dealing , in relation to an interest in property, includes:

                     (a)  if the interest is a debt—making a payment to any person in reduction of the amount of the debt, and

                     (b)  removing the property in which the interest is held from Australia, and

                     (c)  receiving or making a gift of the interest, and

                     (d)  vesting the interest in a person in the course of administering the estate of a deceased person.

director , in relation to a financial institution or a corporation, means:

                     (a)  if the institution or corporation is a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory—a constituent member of the body corporate, and

                     (b)  any person occupying or acting in the position of director of the institution or corporation, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position, and

                     (c)  except as provided by subsection (4), any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act.

DPP means the Director of Public Prosecutions

effective control , in relation to an interest in property, includes effective control of the interest as provided by section 8.

encumbrance , in relation to property, includes any interest, mortgage, charge, right, claim or demand in respect of the property.

financial institution means:

                     (a)  a bank, or

                     (b)  a building society, or

                     (c)  a credit union, or

                     (d)  a body corporate that is, or if it had been incorporated in Australia would be, a financial corporation within the meaning of paragraph 51 (xx) of the Constitution

illegal activity means:

                     (a)  a serious crime related activity, or

                     (b)  an act or omission that constitutes an offence (including a common law offence) against a law of the Commonwealth or a law of a Territory.

                     (c)  an act or omission that occurs outside Australia, is an offence against the law of the place where it occurs and is of a kind that, if it had occurred in Australia, would be a serious crime related activity.

illegally acquired property means an interest in property that is illegally acquired property as provided by section 9.

indictable offence means an offence against a law of the Commonwealth, or a law of a Territory, that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

law enforcement authority means the Australian Federal Police, the DPP or the National Crime Authority.

money means money in the form of cash.

monitoring order means an order made under section 52 and in force.

Official Trustee means the Official Trustee in Bankruptcy.

officer means a director, secretary, executive officer or employee.

owner , in relation to an interest in property, includes a person who has effective control of the interest.

premises includes

                     (a)  a  structure, building, aircraft, vehicle or vessel

                     (b)  a place (whether enclosed or built on or not); and

                     (c)  a part of premises (including premises of a kind referred to in paragraph (a) or (b))

proceeds , in relation to an activity, includes any interest in property, and any service, advantage or benefit, that is derived or realised, directly or indirectly, as a result of the activity:

                     (a)  by the person engaged in the activity, or

                     (b)  by another person at the direction or request (given or made directly or indirectly) of the person engaged in the activity.

Proceeds Account means the Confiscated Assets Reserve established by section 34A of the Proceeds of Crime Act 1987.

proceeds assessment order means an order made under section 30 and in force.

production order means an order made under section 35 and in force.

property-tracking document means:

                     (a)  a document relevant to:

                              (i)  identifying, locating or quantifying any interest in property of a person who might reasonably be suspected of being, or of having been, engaged in a serious crime related activity, or

                             (ii)  identifying or locating any document necessary for the transfer of an interest in property of a person who might reasonably be suspected of being, or of having been, engaged in a serious crime related activity, or

                     (b)  a document relevant to:

                              (i)  identifying, locating or quantifying an interest in property that might reasonably be suspected of being an interest that is serious crime derived property, or

                             (ii)  identifying or locating any document necessary for the transfer of an interest in property that might reasonably be suspected of being an interest that is serious crime derived property.

restraining order means an order made under section 10 and in force.

serious crime derived property means an interest in property that is serious crime derived property as provided by section 9.

serious crime related activity means serious crime related activity referred to in section 6.

             (2)  A reference in this Act to acquiring an interest in property for sufficient consideration is a reference to acquiring the interest for a consideration that, having regard solely to commercial considerations, reflects the value of the interest.

             (3)  A reference in this Act to a transaction of any kind (including sale, disposition, dealing and acquisition) includes a reference to a transaction outside Australia.

             (4)  For the purposes of this Act, a person is not to be regarded as being a director of a financial institution or corporation within the meaning of paragraph (c) of the definition of director in subsection (1) just because the directors act on advice given by that person in the proper performance of the functions attaching to his or her professional capacity.

5  Proceedings are civil, not criminal

             (1)  For the purposes of this Act, proceedings on an application for a restraining order or a confiscation order are not criminal proceedings.

             (2)  Except in relation to an offence under this Act:

                     (a)  any rules of construction applicable only in relation to the criminal law do not apply in the interpretation of the provisions of this Act, and

                     (b)  the rules of evidence applicable in civil proceedings apply, and any rules applicable only in criminal proceedings do not apply, to proceedings under this Act; and

                     (c)  any question of fact to be decided by a court on an application under the Act is to be decided on the balance of probabilities.

6  Meaning of ``serious crime related activity''

             (1)  In this Act, a reference to a serious crime related activity of a person is a reference to anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence or, if charged:

                     (a)  has been tried, or

                     (b)  has been tried and acquitted, or

                     (c)  has been convicted (even if the conviction has been quashed or set aside).

             (2)  In this section, a reference to a serious criminal offence is a reference to:

                     (a)  an offence that is punishable under a law of the Commonwealth or of a Territory by imprisonment for 5 years or more and involves narcotics, theft, fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide, or

                     (b)  a prescribed indictable offence, or

                     (c)  an offence of attempting to commit, or of conspiracy or incitement to commit, an offence referred to in paragraph (a) or (b).

7  Meaning of ``interest in property''

             (1)  In this Act, a reference to an interest of a person in property is a reference to:

                     (a)  an interest the person has in real or personal property, or

                     (b)  a chose in action enforceable at the suit of the person, or

                     (c)  an interest of the person that is within a class of interests prescribed as interests in property for the purposes of this Act.

             (2)  Without limiting the generality of subsection (1), a reference in this Act to an interest of a person in property includes a reference to:

                     (a)  the person's money, and

                     (b)  an interest that the person has in the goodwill of a business, and

                     (c)  an interest that the person has in a licence required to be held in order to carry on a business.

             (3)  A reference in this Act to an interest of a person in property includes a reference to an interest of a person in property situated outside Australia.

             (4)  For the purposes of this Act, if:

                     (a)  but for this subsection, a person would have an interest in property as provided by subsection (1), and

                     (b)  the interest is subject to the effective control of another person,

                   the interest is an interest of the person who has effective control and is not an interest of the person referred to in paragraph (a).

             (5)  In this section:

interest , in relation to property, means:

                     (a)  a legal or equitable estate or interest in the property, or

                     (b)  a right, power or privilege in connection with the property,

                   whether present or future and whether vested or contingent.

 

8  Meaning of ``effective control of interest in property''

             (1)  An interest in property may be subject to the effective control of a person within the meaning of this Act even if:

                     (a)  the person does not have a legal or equitable estate or interest in the property, or

                     (b)  the person has no direct or indirect right, power or privilege in connection with the interest.

             (2)  In determining whether or not an interest in property is subject to the effective control of a person, regard may be had to any relevant matter, including (without being limited to) the following matters:

                     (a)  shareholdings in, debentures of, or directorships of, a company that has the interest,

                     (b)  a trust that has a relationship to the interest,

                     (c)  family, domestic, business and other relationships between that person and other persons having an interest in the property, or in companies of the kind referred to in paragraph (a) or trusts of the kind referred to in paragraph (b).

9  Meaning of ``serious crime derived property'' and ``illegally acquired property''

             (1)  An interest in property is serious crime derived property if:

                     (a)  it is all or part of the proceeds of a serious crime related activity, or

                     (b)  it is all or part of the proceeds of the disposal of or other dealing in serious crime derived property, or

                     (c)  it was wholly or partly acquired using serious crime derived property.

             (2)  The references in subsection (1) (b) and (c) to serious crime derived property are not limited to serious crime derived property described in subsection (1) (a) but also include interests in property that are serious crime derived property because of a previous operation or previous operations of subsection (1) (b) or (c) or their combined operation.

             (3)  Once an interest in property becomes serious crime derived property it remains serious crime derived property even if the interest is disposed of or otherwise dealt with (including by being used to acquire an interest in property), but this is qualified by subsection (5).

             (4)  The meaning of illegally acquired property is ascertained by substituting, in subsections (1)-(3), illegally acquired property for serious crime derived property and illegal activity for serious crime related activity .

             (5)  An interest in property ceases to be serious crime derived property or illegally acquired property:

                     (a)  when it is acquired by a person for sufficient consideration without knowing, and in circumstances that would not arouse a reasonable suspicion, that the interest was, at the time of acquisition, serious crime derived property or illegally acquired property, or

                     (b)  when it vests in a person as a result of the distribution of the estate of a deceased person, or

                     (c)  when the interest is sold or otherwise disposed of under the authority of this Act (including when discharging a proceeds assessment order), or

                     (d)  when it is the proceeds of the sale or other disposition of serious crime derived property or illegally acquired property under the authority of this Act except a sale under section 10 (8) (b) or 14, or

                     (e)  when it is acquired by a person as payment of reasonable legal expenses incurred in connection with an application under this Act or incurred in defending a criminal charge, or

                      (f)  in such other circumstances as may be prescribed.

 

             (6)  If an interest in property that is not serious crime derived property or illegally acquired property was once owned by a person and was then serious crime derived property or illegally acquired property, the property becomes serious crime derived property or illegally acquired property, respectively, if and when it is again acquired by the person.

             (7)  The proceeds of a sale or other dealing do not lose their identity as such merely as a result of being credited to an account.

             (8)  It does not matter whether the serious crime related activity, illegal activity, disposition or other dealing or acquisition by reason of which an interest in property becomes serious crime derived property or illegally acquired property took place before or after the commencement of this section.

             (9)  The following are examples of the practical operation of this section showing the ways in which an interest in property can become serious crime derived property and stop being serious crime derived property:

                     (a)  if money that is the proceeds of a serious crime related activity is used to buy land, the land becomes serious crime derived property and the money used (which is now in the hands of some other person) continues to be serious crime derived property,

                     (b)  if the land is then sold it continues to be serious crime derived property and the money paid for it becomes serious crime derived property,

                     (c)  if the money paid for the land is then used to buy a car, the car becomes serious crime derived property and the money used to buy it (now in the hands of the car's former owner) continues to be serious crime derived property unless the purchase was for sufficient consideration from an innocent person.