Proceeds of Crime Legislation Amendment Act 1991

No. 120 of 1991

TABLE OF PROVISIONS

PART 1—INTRODUCTORY

TABLE OF PROVISIONS—continued

Proceeds of Crime Legislation Amendment Act 1991

No. 120 of 1991

An Act to amend certain Acts in relation to proceeds of crime, and for related purposes

[Assented to 27 June 1991]

The Parliament of Australia enacts:

PART 1—INTRODUCTORY

Short title

1.  This Act may be cited as the Proceeds of Crime Legislation Amendment Act 1991.

Commencement

2.  (1) Sections 1 and 2 commence on the day on which this Act receives the Royal Assent.

(2)     Subject to subsection (3), the remaining provisions of this Act commence on a day or days to be fixed by Proclamation.

(3)     If a provision referred to in subsection (2) does not commence within the period of 6 months starting on the day on which this Act

receives the Royal Assent, it commences on the first day after the end of that period.

PART 2—AMENDMENTS OF THE CRIMES ACT 1914

Principal Act

3.  In this Part, “Principal Act” means the Crimes Act 1914¹.

Interpretation

4.  Section 3 of the Principal Act is amended by inserting in subsection (1) the following definitions:

“ ‘Official Trustee’ means the Official Trustee in Bankruptcy;

‘Trust Fund’ means the Confiscated Assets Trust Fund established by the Proceeds of Crime Act 1987.”.

Seizure and condemnation of forfeitable goods

5.  Section 9 of the Principal Act is amended by omitting subsection (4) and substituting the following subsection:

“(4) All articles that are condemned as forfeited must be transferred to the Official Trustee to be dealt with under section 9a.”.

6.  After section 9 of the Principal Act the following sections are inserted:

Forfeited articles to be dealt with by Official Trustee

“9a. Where articles are transferred to the Official Trustee under subsection 9 (4), the Official Trustee must, subject to any direction by the Attorney-General given in a particular case:

(a)     sell or otherwise dispose of the articles; and

(b)    apply the proceeds of the sale or disposition in payment of the Official Trustee’s remuneration and other costs, charges and expenses of the kind referred to in section 9b payable to or incurred by it in connection with the sale or disposition; and

(c)     pay the remainder of those proceeds to the Trust Fund as required by section 34b of the Proceeds of Crime Act 1987.

Costs etc. payable to Official Trustee

“9b. (1) The regulations may make provision in relation to:

(a)     the costs, charges and expenses incurred in connection with; and

(b)    the Official Trustee’s remuneration in respect of;

the performance or exercise by the Official Trustee of functions, duties or powers under section 9a.

“(2) An amount equal to each amount of remuneration that the Official Trustee receives under the regulations is to be paid into the Consolidated Revenue Fund.

“(3) Where there are no regulations in relation to a matter referred to in subsection (1):

(a)     the regulations referred to in section 55 of the Proceeds of Crime Act 1987 apply, so far as they are applicable, and with appropriate changes, in relation to the matter; and

(b)    a reference in subsection (1) or (2) to regulations is taken to be a reference to the regulations referred to in section 55 of the Proceeds of Crime Act 1987.”.

PART 3—AMENDMENTS OF THE CUSTOMS ACT 1901

Principal Act

7.  In this Part, “Principal Act” means the Customs Act 1901².

Disposal of forfeited goods

8.  Section 208d of the Principal Act is amended by omitting everything after “disposed of and substituting:

“in accordance with:

(a)     in the case of goods other than narcotic-related goods—the directions of the Comptroller; or

(b)     in the case of narcotic-related goods—section 208da.”.

9.  After section 208d of the Principal Act, the following section is inserted:

Disposal of narcotic-related goods

“208da. (1) In this section:

‘condemned goods’ means goods seized under section 203 that are condemned as forfeited to the Crown, or that are taken to be so condemned under subsection 205 (6) or (7) or 208a (2);

‘Official Trustee’ means the Official Trustee in Bankruptcy;

‘prescribed officer’ means a Senior Executive Service Officer in the Attorney-General’s Department appointed or employed under the Public Service Act 1922;

‘Trust Fund’ means the Confiscated Assets Trust Fund established by the Proceeds of Crime Act 1987.

“(2) All condemned goods that are narcotic-related goods (other than narcotic goods) must, subject to any direction given under subsection (4) in relation to those goods, be transferred to the Official Trustee to be dealt with under subsection (3).

“(3) Where goods are transferred to the Official Trustee under subsection (2), the Official Trustee must, as soon as practicable:

(a)      if the goods are money—pay the money to the Trust Fund as required by section 34b of the Proceeds of Crime Act 1987; and

(b)      if the goods are not money:

(i) sell or otherwise dispose of the goods; and

(ii) apply the proceeds of the sale or disposition in payment of the Official Trustee’s remuneration and other costs, charges and expenses of the kind referred to in section 243p payable to or incurred by it in connection with the sale or disposition; and

(iii) pay the remainder of those proceeds to the Trust Fund as required by section 34b of the Proceeds of Crime Act 1987.

“(4) Where condemned goods consist of, or include, narcotic-related goods, the Attorney-General, or a prescribed officer authorised by the Attorney-General for the purposes of this section:

(a)     must, in relation to such of those goods as are narcotic goods, direct that the goods be disposed of, or otherwise dealt with, as specified in the direction; and

(b)    may, in relation to such of those narcotic-related goods as are not narcotic goods, give such a direction at any time before the goods are sold or otherwise disposed of under subsection (2).”.

Interpretation

10.  Section 243a of the Principal Act is amended by inserting in subsection (1) the following definition:

“ ‘Trust Fund’ means the Confiscated Assets Trust Fund established by the Proceeds of Crime Act 1987;”.

Official Trustee to discharge pecuniary penalty

11.  Section 243g of the Principal Act is amended by omitting from subparagraphs (6) (a) (ii) and (6) (b) (iii), paragraph (7) (a) and subsection (8) “to the Commonwealth” and substituting “to the Trust Fund as required by section 34b of the Proceeds of Crime Act 1987”.

Duties of the Official Trustee after receiving notice of presentation of creditor’s petition etc.

12.  Section 243m of the Principal Act is amended by omitting from paragraphs (1) (b) and (2) (b) “to the Commonwealth”.

PART 4—AMENDMENTS OF THE PROCEEDS OF CRIME ACT 1987

Principal Act

13.  In this Part, “Principal Act” means the Proceeds of Crime Act 1987³.

Interpretation

14. Section 4 of the Principal Act is amended by inserting in subsection (1) the following definitions:

“ ‘distributable funds’ means money in the Trust Fund that is:

(a)     identified as distributable funds in accordance with the regulations (other than such money as is identified by the Official Trustee under subsection 34e (2) as suspended funds); or

(b)     identified by the Official Trustee under subsection 34e (3) as distributable funds;

‘equitable sharing program’ means an arrangement under which either or both of the following happen:

(a)     the Commonwealth shares with a participating State a proportion of any proceeds of any unlawful activity recovered under a Commonwealth law, where, in the opinion of the Attorney-General, that State has made a significant contribution to the recovery of those proceeds or to the investigation or prosecution of the relevant unlawful activity;

(b)     each participating State shares with the Commonwealth any proceeds resulting from a breach of the criminal law of that State where, in the opinion of the appropriate Minister of that State, officers of a law enforcement agency of the Commonwealth have made a significant contribution to the recovery of those proceeds;

‘GBE’ means a prescribed government business enterprise;

‘prescribed officer’ means a Senior Executive Service Officer in the Attorney-General’s Department appointed or employed under the Public Service Act 1922;

‘proceeds of confiscated assets’ means the following:

(a)     the remainder of the proceeds referred to in paragraph 9a (c) of the Crimes Act 1914;

(b)    the money referred to in paragraph 208da (3) (a) of the Customs Act 1901;

(c)     the remainder of the proceeds referred to in paragraph 208da (3) (b) of the Customs Act 1901;

(d)    the amount referred to in subsection 243b (4);

(e)     the remainder of the money referred to in paragraph 243g (6) (a) of the Customs Act 1901;

(f)     the remainder of the proceeds referred to in paragraph 243g (6) (b) of the Customs Act 1901;

(g)     the remainder of the money referred to in subparagraph 20 (3) (b) (i);

(h)    the remainder of the proceeds referred to in subparagraph 20 (3) (b) (ii);

(i) the amount referred to in subsection 26 (8);

(j) the remainder of the money referred to in subparagraph 30 (4) (b) (i);

(k) the remainder of the proceeds referred to in subparagraph 30 (4) (b) (ii);

(1) an amount referred to in subsection 33 (1) or (2);

(m) an amount referred to in paragraph 34 (f);

(n) the remainder of the money referred to in paragraph 49 (6) (a);

(o) the remainder of the proceeds referred to in paragraph 49 (6) (b);

(p) the remainder of the money referred to in paragraph 63 (4) (a);

(q) the remainder of the proceeds referred to in paragraph 63 (4) (b);

‘suspended funds’ means money in the Trust Fund that is:

(a)     identified as suspended funds in accordance with the regulations (other than such money as is identified by the Official Trustee under subsection 34e (3) as distributable funds); or

(b)     identified by the Official Trustee under subsection 34e (2) as suspended funds;

‘Trust Fund’ means the Confiscated Assets Trust Fund established by section 34a;”.

Effects of forfeiture order

15. Section 20 of the Principal Act is amended:

(a)  by omitting paragraph (3) (b) and substituting the following paragraph:

“(b) if, at the relevant time, the order has not been discharged, then, subject to any direction under subsection (3a), the Official Trustee must, as soon as practicable after the relevant time:

(i) if the property is money—after paying the Official Trustee’s remuneration and other costs, charges and expenses of the kind referred to in subsection 55 (1) payable to or incurred by it in connection with the restraining order, pay the remainder of the money to the Trust Fund as required by section 34b; and

(ii) if the property is not money—sell or otherwise dispose of the property and, after paying the Official Trustee’s remuneration and other costs, charges and expenses of the kind referred to in subsection 55 (1) payable to or incurred by it in connection with the restraining order or the sale or disposition, pay the remainder of those proceeds to the Trust Fund as required by section 34b.”;

(b)  by inserting after subsection (3) the following subsection:

“(3a) Where a court makes a forfeiture order against property, the Attorney-General, or a prescribed officer authorised by the Attorney-General for the purposes of this subsection, may, at or after the relevant time but before the property is dealt with under paragraph (3) (b), direct that the property be disposed of, or otherwise dealt with, as specified in the direction.”;

(c) by omitting from subsection (4) “paragraph (3) (b)” and “that paragraph” and substituting “subsection (3a)” and “that subsection”, respectively.

Effect of forfeiture order on third parties

16.  Section 21 of the Principal Act is amended by inserting in subparagraph (6) (d) (i) “if the interest is still vested in the Commonwealth—” before “directing”.

Forfeiture of all restrained property if person convicted of serious offence

17.  Section 30 of the Principal Act is amended:

(a)  by omitting paragraph (4) (b) and substituting the following paragraph:

“(b) if, at the end of the appeal period in respect of the conviction, the conviction has not been quashed, then, subject to any direction under subsection (4a), the Official Trustee must, as soon as practicable after the end of the appeal period:

(i) if the property is money—after paying the Official Trustee’s remuneration and other costs, charges and expenses of the kind referred to in subsection 55 (1) payable to or incurred by it in connection with the restraining order, pay the remainder of the money to the Trust Fund as required by section 34b; and

(ii) if the property is not money—sell or otherwise dispose of the property and, after paying the Official Trustee’s remuneration and other costs, charges and expenses of the kind referred to in subsection 55 (1) payable to or incurred by it in connection with the restraining order or the sale or disposition, pay the remainder of those proceeds to the Trust Fund as required by section 34b.”;

(b)  by inserting after subsection (4) the following subsection:

“(4a) Where property is forfeited under this section because of a person’s conviction of a serious offence, the Attorney-General, or a prescribed officer authorised by the Attorney-General for the purposes of this subsection, may, at or after the end of the appeal period in respect of the conviction but before

the property is dealt with under paragraph (4) (b), direct that the property be disposed of, or otherwise dealt with, as specified in the direction.”;

(c) by omitting from subsection (5) “paragraph (4) (b)” and “that paragraph” and substituting “subsection (4a)” and “that subsection” respectively.

Recovery of property to which section 30 applies

18.    Section 31 of the Principal Act is amended by inserting, in subparagraph (6) (d) (i) “if the interest is still vested in the Commonwealth—” before “directing”.

19.    After Part II of the Principal Act the following Part is inserted:

“PART IIa—CONFISCATED ASSETS TRUST FUND

Establishment of Trust Fund

“34a. (1) A fund called the Confiscated Assets Trust Fund is established by this subsection.

“(2) The Trust Fund is a trust account for the purposes of section 62a of the Audit Act 1901.

Payments into Trust Fund

“34b. (1) There are to be paid into the Trust Fund:

(a)     proceeds of confiscated assets; and

(b)    money paid to the Commonwealth by a foreign country, within the meaning of the Mutual Assistance Act, under a treaty or arrangement providing for mutual assistance in criminal matters; and

(c)     money paid to the Commonwealth under a foreign pecuniary penalty order registered under section 34 of the Mutual Assistance Act; and

(d)    money (including the proceeds of sale of any property) that is, under a direction referred to in subsection 23 (2), directed to be paid into the Trust Fund; and

(e)     money deriving from the enforcement of an interstate forfeiture order registered in a Territory, other than money covered by a direction under subsection 20 (3a) or 30 (4a); and

(f) the Commonwealth’s share, under the equitable sharing program, of proceeds resulting from a breach of the criminal law of a State.

“(2) Subject to section 34e, all amounts paid to the Trust Fund are to be identified in accordance with the regulations as distributable funds or suspended funds and are to retain that identity while they remain within the Trust Fund.

“(3) Where an amount payable to the Commonwealth must, under this section, be paid to the Trust Fund, payment of that amount into the Trust Fund is, for all purposes, taken to be payment to the Commonwealth.

Payments out of Trust Fund

“34c. (1) The purposes of the Trust Fund are:

(a)  to the extent to which it comprises suspended funds:

(i) making such payments, if any, to States as the Attorney-General considers are appropriate under the equitable sharing program; and

(ii) making such payments as the Attorney-General considers necessary to satisfy the Commonwealth’s obligations in respect of a registered foreign forfeiture order or a registered foreign pecuniary penalty order; and

(iii) making such payments to a State as the Attorney-General considers necessary following a payment to the Trust Fund under paragraph 34b (1) (b) of money received from a foreign country; and

(iv) paying the prescribed annual management fee in accordance with the regulations; and

(v) making such payments by way of restitution as are required under subparagraph 21 (6) (d) (ii), paragraph 22 (4) (b) or subparagraph 31 (6) (d) (ii); and

(b)  to the extent to which it comprises distributable funds:

(i) making payments to a GBE of any proceeds of confiscated assets that relate to a relevant offence that caused financial loss to the GBE; and

(ii) making payments in accordance with section 34d for purposes related to law enforcement and drug rehabilitation and education.

“(2) In this section:

‘relevant offence’ means an offence under section 29a, 29b, 29c, 29d, 71, 86 or 86a of the Crimes Act 1914 or a prescribed offence.

Application of distributable funds

“34d. (1) For the purposes of subparagraph 34c (1) (b) (ii), the Attorney-General may, from time to time, but must, at least once in each financial year, determine in accordance with the regulations the amount of the balance of the distributable funds that is available for distribution at that time.

“(2) As soon as practicable after making a determination, the Attorney-General must cause the balance to be distributed as follows: (a) an amount equal to half the balance is to be paid to such law enforcement projects as are selected by the Attorney-General

after consultation with such advisory bodies concerned with law enforcement matters (if any) as the Attorney-General considers appropriate;

(b) an amount equal to half the balance is to be paid to such drug rehabilitation and drug education programs as are selected by the Minister of State responsible for health matters, after consultation with such advisory bodies concerned with drug-related matters (if any) as that Minister considers appropriate, and notified in writing to the Attorney-General.

“(3) In this section:

‘law enforcement project’ means a project or program that is developed by, or with the assistance or support of, a prescribed law enforcement agency, being a project or program that promotes the investigation or detection of, or the prosecution of persons for, breaches of Commonwealth criminal law.

Determinations by Official Trustee about suspended and distributable funds

“34e. (1) The Official Trustee may, at such times as it considers appropriate, but must, at least once in every 6 months, determine whether the amount of suspended funds in the Trust Fund:

(a)     is likely to be insufficient to meet the payments to be made out of the suspended funds for the purposes of paragraph 34c (1) (a); or

(b)    is likely to exceed the amount required to meet those payments.

“(2) Where the Official Trustee determines that the amount of suspended funds is likely to be insufficient to meet the payments to be made out of the suspended funds for the purposes of paragraph 34c (1) (a), the Official Trustee must declare that such an amount of the distributable funds as the Official Trustee identifies, being not more than the amount required to meet those payments, is to be identified as suspended funds.

“(3) Where the Official Trustee determines that the amount of suspended funds is likely to exceed the amount required to meet those payments, the Official Trustee must declare that such an amount of the suspended funds as the Official Trustee identifies, being not more than the amount of the likely excess, is to be identified as distributable funds.”.

Official Trustee to discharge pecuniary penalty

20. Section 49 of the Principal Act is amended by omitting from subparagraphs (6) (a) (ii) and (6) (b) (iii), paragraph (7) (a) and subsection (8) “to the Commonwealth” and substituting “to the Trust Fund as required by section 34b.”.

Duties of Official Trustee

21.  Section 53 of the Principal Act is amended by omitting from paragraphs (1) (b) and (2) (b) “the Commonwealth”.

Discharge of certain registered foreign pecuniary penalty orders

22.  Section 63 of the Principal Act is amended by omitting from subparagraphs (4) (a) (ii) and (4) (b) (iii), paragraph (5) (a) and subsection (6) “to the Commonwealth” and substituting “to the Trust Fund as required by section 34b.”.

NOTES

1.      No. 12, 1914, as amended. For previous amendments, see No. 6, 1915 (as amended by No. 54, 1920); No. 54, 1920; No. 9, 1926; No. 13, 1928; No. 30, 1932; No. 5, 1937; No. 6, 1941; No. 77, 1946; No. 80, 1950; No. 10, 1955; No. 11, 1959; No. 84, 1960; No. 93, 1966; Nos. 33 and 216, 1973; No. 56, 1975; Nos. 19 and 155, 1979; No. 70, 1980; No. 122, 1981 (as amended by No. 193, 1985); No. 67, 1982 (as amended by No. 193, 1985); Nos. 80 and 153, 1982; Nos. 91, 114 and 136, 1983; Nos. 10, 63 and 165, 1984; No. 193, 1985; Nos. 76, 102 and 168, 1986; Nos. 73, 120 and 141, 1987; Nos. 63 and 108, 1989; Nos. 4, 11 and 75, 1990; and No. 28, 1991.

2.      No. 6, 1901, as amended. For previous amendments, see No. 21, 1906; Nos. 9 and 36, 1910; No. 19, 1914, No. 10, 1916; No. 41, 1920; No. 19, 1922; No. 12, 1923; No. 22, 1925; No. 6, 1930; No. 7 1934; No. 45, 1934; No. 7, 1935; No. 85, 1936; No. 54, 1947; No. 45, 1949; Nos. 56 and 80, 1950; No. 56, 1951; No. 108, 1952; No. 47, 1953; No. 66, 1954; No. 37, 1957; No. 54, 1959; Nos. 42 and 111, 1960; No. 48, 1963; Nos. 29 and 133, 1965; No. 82, 1965 (as amended by No. 133, 1965); No. 28, 1966; No. 54, 1967; Nos. 14 and 104, 1968; Nos. 12 and 134, 1971; Nos. 162 and 216, 1973; Nos. 28 and 120, 1974; No. 56, 1975 (as amended by No. 107, 1975); Nos. 77 and 107, 1975; Nos. 37, 41, 91 and 174, 1976; No. 154, 1977; Nos. 36 and 183, 1978; No. 19, 1979; No. 92, 1979 (as amended by Nos. 40 and 175, 1985); Nos. 116, 155, 177 and 180, 1979; Nos. 13, 15, 110 and 171, 1980; Nos. 45, 61, 67, 152 and 157, 1981; No. 64, 1981 (as amended by No. 51, 1982 and No. 5, 1990); Nos. 48, 51, 80, 108, 115 and 137, 1982; No. 81, 1982 (as amended by No. 39, 1983; No. 72, 1984; No. 40, 1985; and No. 5, 1990); Nos. 19, 39 and 101, 1983; Nos. 2, 22, 63, 72 and 165, 1984; Nos. 39 and 175, 1985; No. 40, 1985 (as amended by No. 5, 1990); Nos. 10, 34 and 149, 1986; Nos. 51, 76, 81, 104 and 141, 1987; Nos. 63, 76, 99, 120 and 121, 1988; No. 66, 1988 (as amended by No. 120, 1988); Nos. 23, 24, 78, 108 and 174, 1989; Nos. 5, 6, 11, 37, 70 and 111, 1990; and No. 28, 1991.

3.      No. 87, 1987, as amended. For previous amendments, see No. 120, 1987; No. 120, 1988; and No. 28, 1991.

[Minister’s second reading speech made in—

House of Representatives on 31 May 1991 a.m.

Senate on 6 June 1991]