Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Criminal Assets Recovery Bill 2001

Division 3—Search powers (property tracking)

47  Consent to search for, and to seizure of, property-tracking document

                   With the consent of the occupier of premises, an authorised officer may:

                     (a)  enter the premises, and

                     (b)  search the premises for any property-tracking document, and

                     (c)  seize any document found in the course of the search that the authorised officer believes, on reasonable grounds, to be a property-tracking document.

48  Application for search warrant for location of property-tracking document

                   If an authorised officer has reasonable grounds for suspecting that a property-tracking document is, or may be within the next following 72 hours, in or on any premises, the authorised officer may:

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

                     (b)  apply to the court for the issue of a search warrant under section 46 in respect of the premises.

49  Search warrant for location etc of property

             (1)  If an application is made under section 48 for a search warrant in respect of premises, the court may issue a search warrant authorising an authorised officer (who, if an AFP member or a member of the police force of a State or Territory need not be named in the warrant), with such assistance, and by the use of such force, as is necessary and reasonable:

                     (a)  to enter the premises, and

                     (b)  to search the premises for property-tracking documents, and

                     (c)  to seize any document found in the course of the search that the authorised officer believes, on reasonable grounds, to be a property-tracking document.

             (2)  A court is not to issue a search warrant under this section unless the court is satisfied that:

                     (a)  the document involved cannot be identified or described with sufficient particularity for the purpose of obtaining a production order in respect of the document, or

                     (b)  a production order has been made in respect of the document and has not been complied with, or

                     (c)  a production order in respect of the document would be unlikely to be effective because there are reasonable grounds to suspect that such a production order would not be complied with, or

                     (d)  the investigation for the purposes of which the search warrant is being sought might be seriously prejudiced if the authorised officer does not gain immediate access to the document without notice to any person.

50  Requirements of search warrant

                   There must be stated in a search warrant issued under section 49:

                     (a)  whether entry is authorised to be made at any time of the day or night or only during specified hours of the day or night, and

                     (b)  the date, not being later than one month after the day of issue of the warrant, on which the warrant ceases to have effect.

51  Other documents and evidence may be seized

                   If an authorised officer executing a search warrant issued under section 49:

                     (a)  finds any document or other thing that the authorised officer believes, on reasonable grounds, will afford evidence of a criminal offence, and

                     (b)  believes, on reasonable grounds, that it is necessary to seize the document or thing in order to prevent its concealment, loss or destruction,

                   the search warrant is to be taken to authorise seizure of the document or thing.

52  Legal professional privilege

             (1)  The fact that a document contains or may contain information that is the subject of legal professional privilege does not prevent seizure of the document under the authority of a search warrant issued under this Division.

             (2)  If a person objects to the seizure of a document under the authority of such a search warrant on the ground that the document contains or may contain information that is the subject of legal professional privilege, any information, document or thing obtained as a direct or indirect consequence of the seizure of the document is not admissible in any criminal proceedings against the person entitled to claim that privilege.



 

Division 4—Monitoring orders

53  Monitoring orders

             (1)  If an authorised officer has reasonable grounds for suspecting that a financial institution may obtain information about transactions conducted by a particular person with the institution, the officer may:

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

                     (b)  apply to the court for the making of an order directing the financial institution to give to a law enforcement authority, or to an authorised officer nominated by the DPP, information obtained by the institution about transactions conducted by the person with the institution.

             (2)  The court is not to make a monitoring order unless satisfied that there are reasonable grounds for suspecting that the person in respect of whose transactions the information is sought:

                     (a)  has been, or is about to be, involved in a serious crime related activity, or

                     (b)  has acquired, or is about to acquire, directly or indirectly, any serious crime derived property or, in the case of a person referred to in paragraph (a), any illegally acquired property.

             (3)  A monitoring order must specify:

                     (a)  the nature of the transactions to be monitored, and

                     (b)  the kind of information that the institution is required to give, and

                     (c)  the manner in which the information is to be given.

             (4)  A monitoring order applies in relation to transactions conducted during the period specified in the order (being a period commencing not earlier than the day on which notice of the order is given to the financial institution and ending not later than 3 months after the date of the order).

             (5)  If the court makes a monitoring order, the person who applied for the order must give notice of the order to the financial institution to which the order applies.

54  Offences relating to monitoring order

                   A financial institution that has been given notice of a monitoring order is guilty of an offence if it knowingly:

                     (a)  contravenes the order, or

                     (b)  provides false or misleading information in purported compliance with the order.

                                                  Maximum penalty: 1,000 penalty units.

55  Existence and operation of monitoring order not to be disclosed

             (1)  A financial institution that is, or has been, subject to a monitoring order is guilty of an offence if it discloses the existence or the operation of the order to any person (including the person to whom the order relates) except:

                     (a)  the DPP or the person authorised by the DPP and named in the order, or

                     (b)  an officer or agent of the institution, for the purpose of ensuring that the order is complied with, or

                     (c)  a barrister or solicitor, for the purpose of obtaining legal advice or representation in relation to the order.

                                      Maximum penalty: 1,000 penalty units.

             (2)  A person described in subsection (1) (a), (b) or (c) to whom the existence or operation of a monitoring order has been disclosed (whether in accordance with subsection (1) or a previous application of this subsection or otherwise) is guilty of an offence if he or she:

                     (a)  while still a person so described—discloses the existence or operation of the order, otherwise than to another person described in subsection (1) (a), (b) or (c) for the purpose of:

                              (i)  if the disclosure is made by a person described in subsection (1) (a)—the performance of that person's duties, or

                             (ii)  if the disclosure is made by an officer or agent of the institution—ensuring that the order is complied with or obtaining legal advice or representation in relation to the order, or

                            (iii)  if the disclosure is made by a barrister or solicitor—giving legal advice, or making representations, in relation to the order, or

                     (b)  while no longer a person so described—makes a record of, or discloses, the existence or operation of the order in any circumstances.

              Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

             (3)  Nothing in subsection (2) prevents the disclosure by a person described in subsection (1) (a) of the existence or operation of a monitoring order:

                     (a)  for the purposes of, or in connection with, legal proceedings, or

                     (b)  in the course of proceedings before a court.

             (4)  A person described in subsection (1) (a) is not to be required to disclose to any court the existence or operation of a monitoring order.

             (5)  A reference in this section to disclosing the existence or operation of a monitoring order to a person includes a reference to disclosing to the person information from which the person could reasonably be expected to infer the existence or operation of the monitoring order.

56  Communication of information by financial institutions to prescribed authorities

             (1)  If a financial institution has reasonable grounds for believing that information it has about a transaction with the institution:

                     (a)  might be relevant to an investigation of a serious crime related activity or the making of a confiscation order, or

                     (b)  might otherwise be of assistance in the enforcement of this Act or the regulations,

                   the institution may give the information to a law enforcement authority.

             (2)  An action, suit or proceeding does not lie against:

                     (a)  a financial institution, or

                     (b)  an officer, employee or agent of the institution acting in the course of the person's employment or agency,

                   in relation to the giving of the information by the institution or person under this section.