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Criminal Assets Recovery Bill 2001

Part 4—Information gathering powers

Division 1—Production orders

36  Making of production order

             (1)  If an authorised officer has reasonable grounds for suspecting that a person has possession or control of a property-tracking document, or property-tracking documents, the authorised officer may:

                     (a)  lay before a court an information on oath setting out those grounds, and

                     (b)  apply to the court, ex parte, for a production order against the person suspected of having possession or control of the document or documents.

             (2)  The court may order the person against whom an application for a production order is made under subsection (1):

                     (a)  except in the case of bankers' books, to produce to an authorised officer at a specified time, or between specified times, and at a specified place any property-tracking documents that are in the person's possession or control, or

                     (b)  to make available to an authorised officer, for inspection at a specified time or times, or between specified times, at the place at which they are kept, any property-tracking documents that are in the person's possession or control.

             (3)  In this section:

bankers' books means any accounting records of a bank used in its ordinary business of banking, and includes ledgers, day-books, cash-books and account books.

37  Powers under production order

             (1)  If a document is produced to an authorised officer under a production order, the authorised officer may do any one or more of the following:

                     (a)  inspect the document,

                     (b)  take extracts from the document,

                     (c)  make copies of the document,

                     (d)  retain the document if, and for so long as, its retention is reasonably necessary for the purposes of this Act.

             (2)  If a document is made available to an authorised officer for inspection under a production order, the authorised officer may do any one or more of the following:

                     (a)  inspect the document,

                     (b)  take extracts from the document,

                     (c)  make copies of the document.

             (3)  An authorised officer who retains a document under subsection (1) (d) must, on request by the person against whom the order is made:

                     (a)  give the person a copy of the document certified by the authorised officer in writing to be a true copy of the document, and

                     (b)  unless the person has received a copy of the document under paragraph (a)—permit the person to do any one or more of the following:

                              (i)  inspect the document,

                             (ii)  take extracts from the document,

                            (iii)  make copies of the document.

 

38  Effect of production order on proceedings etc

             (1)  A person is not excused from complying with a production order on the ground that:

                     (a)  the production or making available of the document might tend to incriminate the person or make the person liable to a forfeiture or penalty, or

                     (b)  the production or making available of the document would be in breach of an obligation (whether imposed by an enactment or otherwise) of the person not to disclose the existence or contents of the document, or

                     (c)  the production or making available of the document would disclose information that is the subject of legal professional privilege.

             (2)  If a person objects to a production order:

                     (a)  the production or making available of the document, or

                     (b)  any document or thing obtained as a consequence of the production or making available of the document,

                   is not admissible against the person in any criminal proceedings except proceedings for an offence under section 40 (Failure to comply with production order).

39  Variation of production order

                   If a court makes an order under section 36 requiring a person to produce a document to an authorised officer, the person may apply to the court for a variation of the order and the court may, if satisfied that the document is essential to the business activities of the person, vary the production order so that it requires the person to make the document available under section 36(2)(b) to an authorised officer for inspection.

40  Failure to comply with production order

             (1)  If a person is required by a production order to produce a document to an authorised officer or to make a document available to an authorised officer for inspection, the person is guilty of an offence if the person:

                     (a)  contravenes the order without reasonable excuse, or

                     (b)  in purported compliance with the order produces or makes available a document known to the person to be false or misleading in a material particular without:

                              (i)  indicating to the authorised officer to whom the document is produced or made available that the document is false or misleading and the respect in which the document is false or misleading, and

                             (ii)  providing correct information to the authorised officer if the person is in possession of, or can reasonably acquire, the correct information.

                            Maximum penalty: 500 penalty units if the offender is a body corporate or, in any other case, 100 penalty units or imprisonment for 2 years, or both.

             (2)  It is sufficient compliance with a requirement of a production order that a person produce a document or make a document available if:

                     (a)  the person has provided the DPP with a statement verified by statutory declaration to the effect that the person does not have possession and does not have control of the document, and

                     (b)  the DPP has notified the person in writing that the DPP is prepared to accept provision of the statement as compliance with the order.

41  Prohibited disclosures about production orders

             (1)  A person against whom a production order is made must not disclose:

                     (a)  the existence or nature of the order, or

                     (b)  any information to a person from which the person could reasonably be expected to infer the existence or nature of the order.

                   Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.

             (2)  Subsection (1) does not apply to a production order unless it (or a notice accompanying it) specifies that information about the order must not be disclosed.

             (3)  A person does not contravene this section if:

                     (a)  the disclosure is made to an employee, agent or other person in order to obtain a property-tracking document to comply with the order and the employee, agent or other person is directed not to inform the person to whom the document relates about the matter, or

                     (b)  the disclosure is made to obtain legal advice or representation in relation to the order, or

                     (c)  the disclosure is made for the purposes of, or in the course of, legal proceedings.



Division 2—Search powers (general)

42  Search warrants

             (1)  An authorised officer may apply to an issuing officer in accordance with Part 1AA of the Crimes Act 1914 for the issue of a search warrant under this Division if the authorised officer has reasonable grounds for believing that there is or, within 72 hours, will be on any premises:

                     (a)  anything in which a person has an interest that constitutes serious crime derived property, or

                     (b)  anything in which a person has an interest that constitutes illegally acquired property of a person reasonably suspected of having been engaged in serious crime related activities, or

                     (c)  evidence of a serious crime related activity, or

                     (d)  evidence of illegal activity of a person reasonably suspected of having been engaged in serious crime related activities, or

                     (e)  property an interest in which is subject to a restraining order.

             (2)  The issuing officer to whom the application for a search warrant is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer (who, if, an AFP member or the member of a police force of a State or Territory, need not be named in the warrant) to enter the premises and there search for any or all of the property or evidence referred to in subsection (1).

             (3)  Nothing in this Division limits the operation of Part 1AA of the Crimes Act 1914 .

43  Seizure of property and searching of person

             (1)  The person or persons executing a search warrant under this Division may seize anything that might reasonably be suspected of being:

                     (a)  something in which a person has an interest that constitutes serious crime derived property, or

                     (b)  something in which a person has an interest that constitutes illegally acquired property of a person reasonably suspected of having been engaged in serious crime related activities, or

                     (c)  evidence of a serious crime related activity, or

                     (d)  evidence of illegal activity of a person reasonably suspected of having been engaged in serious crime related activities, or

                     (e)  property an interest in which is subject to a restraining order.

             (2)  The power conferred by this section to seize anything includes:

                     (a)  power to remove it from the premises where it is found, and

                     (b)  power to guard it on those premises.

             (3)  A person executing a search warrant issued under this Division may search a person found on the premises who might reasonably be suspected of being in possession of property or evidence that may be seized under this section.

             (4)  A person executing a search warrant issued under this Division may:

                     (a)  examine any property or evidence seized in executing the warrant, and

                     (b)  inspect and test any such property, and

                     (c)  in the case of evidence that is a document—make copies of, and take extracts from, the document.

44  Responsibility for seized property

             (1)  If property or evidence is seized when a search warrant issued under this Division is executed, reasonable measures for its preservation while in custody are to be taken:

                     (a)  by the DPP if the warrant was issued on the application of the DPP or a member of staff of the Office of the DPP, or

                     (b)  in any other case, by the Commissioner.

             (2)  A person authorised by the DPP or the Commissioner for the purpose may:

                     (a)  examine any property or evidence seized when a search warrant issued under this Division is executed, and

                     (b)  inspect and test any such property, and

                     (c)  in the case of evidence that is a document—make copies of, and take extracts from, the document.

45  Return of certain seized property

             (1)  If:

                     (a)  property has been seized pursuant to a search warrant issued under this Division, and

                     (b)  at the time when the property was seized, a restraining order affecting an interest in the property had not been applied for or granted, and

                     (c)  before the expiration of 7 days after the property was seized, such a restraining order had not been applied for or granted or, if applied for, had been refused, and

                     (d)  the responsible person does not propose to use the property as evidence in any proceedings,

                   the responsible person is to arrange for the property to be returned, at the expiration of that period, to the person from whose possession it was seized.

             (2)  In this section:

responsible person , in relation to property, means:

                     (a)  if the property is in the custody, or under the control, of the DPP—the DPP, or

                     (b)  if the property is in the custody, or under the control, of an authorised officer other than the DPP—the Commissioner.

46  Obstruction etc of person executing warrant

                   A person who, without reasonable excuse, obstructs or hinders a person executing a search warrant issued under this Division is guilty of an offence.

                   Maximum penalty: 20 penalty units or imprisonment for 2 years, or both.