Statutory Rules 1987 No. 224
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Proceeds of Crime Regulations
I, THE ADMINISTRATOR of the Government of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Proceeds of Crime Act 1987.
Dated 8 October 1987.
J. A. ROWLAND
Administrator
By His Excellency’s Command,
LIONEL BOWEN
Attorney-General
Citation
1. These Regulations may be cited as the Proceeds of Crime Regulations.
Interpretation
2. In these Regulations, unless the contrary intention appears:
“the Act” means the Proceeds of Crime Act 1987.
Declaration of State laws—definition of “corresponding law”
3. For the purposes of the definition of “corresponding law” in subsection 4 (1) of the Act, each of the following laws is declared to be a law that corresponds to the Act:
* * * * * * * * *
(aa) Drug Trafficking (Civil Proceedings) Act 1990 of New South Wales;
(b) Confiscation of Proceeds of Crime Act 1989 of New South Wales;
(c) Crimes (Confiscation of Profits) Act 1986 of Victoria;
(d) Crimes (Confiscation of Profits) Act 1989 of Queensland;
(e) Crimes (Confiscation of Profits) Act, 1986 of South Australia;
(f) Crimes (Confiscation of Profits) Act 1988 of Western Australia;
(fa) Crime (Confiscation of Profits) Act 1993 of Tasmania;
(g) Crimes (Forfeiture of Proceeds) Act 1988 of the Northern Territory;
(h) Proceeds of Crime Act 1991 of the Australian Capital Territory.
Distributable funds
3A. For the purposes of paragraph (a) of the definition of “distributable funds” in subsection 4 (1) of the Act, the following moneys paid into the Trust Fund are distributable funds:
(a) money referred to in paragraph 34B (1) (b) of the Act that is not money referred to in subparagraph 7A (b) (ii);
(b) money referred to in paragraph (a) of the definition of “proceeds of confiscated assets” in subsection 4 (1) of the Act;
(c) money referred to in paragraphs (b) to (o) (inclusive) of the definition of “proceeds of confiscated assets” in subsection 4 (1) of the Act that is not an amount in respect of which notice has been given to the Official Trustee under subregulation 11 (2) or 12 (2) or (3);
(d) money referred to in paragraph 34B (1) (f) of the Act;
(e) money referred to in paragraph 34B (1) (g) of the Act.
What is a GBE?
3B. For the purposes of the definition of “GBE” in subsection 4 (1) of the Act, each of the following government business enterprises is prescribed:
* * * * * * * * *
(b) the Australian Industry Development Corporation;
(c) the Australian National Railways Commission;
(d) the Australian Postal Corporation;
(e) ANL Limited;
(f) the Civil Aviation Authority;
* * * * * * * * *
(h) the Federal Airports Corporation;
(i) the Health Insurance Commission;
(j) the Housing Loans Insurance Corporation;
(k) the Pipeline Authority.
Declaration of orders—definition of “interstate forfeiture order”
4. For the purposes of the definition of “interstate forfeiture order” in subsection 4 (1) of the Act, each of the following kinds of orders is declared to be within the definition:
* * * * * * * * *
(aa) assets forfeiture orders under section 22 of the Drug Trafficking (Civil Proceedings) Act 1990 of New South Wales;
(b) forfeiture orders under subsection 18 (1) of the Confiscation of Proceeds of Crime Act 1989 of New South Wales;
(c) forfeiture orders under subsection 7 (1) of the Crimes (Confiscation of Profits) Act 1986 of Victoria;
(d) forfeiture orders under subsection 8 (1) of the Crimes (Confiscation of Profits) Act 1989 of Queensland;
(e) orders that property be forfeited to the Crown made under subsection 5 (1) of the Crimes (Confiscation of Profits) Act, 1986 of South Australia;
(f) forfeiture orders under subsection 10 (1) of the Crimes (Confiscation of Profits) Act 1988 of Western Australia;
(fa) forfeiture orders under section 16 of the Crime (Confiscation of Profits) Act 1993 of Tasmania;
(g) forfeiture orders under subsection 5 (1) of the Crimes (Forfeiture of Proceeds) Act 1988 of the Northern Territory;
(h) forfeiture orders under subsection 19 (1) of the Proceeds of Crime Act 1991 of the Australian Capital Territory.
Declaration of order—definition of “interstate pecuniary penalty order”
5. For the purposes of the definition of “interstate pecuniary penalty order” in subsection 4 (1) of the Act, each of the following kinds of orders is declared to be within the definition:
* * * * * * * * *
(aa) proceeds assessment orders under section 27 of the Drug Trafficking (Civil Proceedings) Act 1990 of New South Wales;
(b) pecuniary penalty orders under subsection 24 (1) of the Confiscation of Proceeds of Crime Act 1989 of New South Wales and drug proceeds orders under subsection 29 (1) of that Act;
(c) pecuniary penalty orders under subsection 12 (1) of the Crimes (Confiscation of Profits) Act 1986 of Victoria;
(d) pecuniary penalty orders under subsection 13 (1) of the Crimes (Confiscation of Profits) Act 1989 of Queensland;
(e) pecuniary penalty orders under subsection 15 (1) of the Crimes (Confiscation of Profits) Act 1988 of Western Australia;
(ea) pecuniary penalty orders under section 21 of the Crime (Confiscation of Profits) Act 1993 of Tasmania;
(f) pecuniary penalty orders under subsection 10 (1) of the Crimes (Forfeiture of Proceeds) Act 1988 of the Northern Territory;
(g) pecuniary penalty orders under subsection 25 (1) of the Proceeds of Crime Act 1991 of the Australian Capital Territory.
Declaration of orders—definition of “interstate restraining order”
6. For the purposes of the definition of “interstate restraining order” in subsection 4 (1) of the Act, each of the following kinds of orders is declared to be within the definition:
* * * * * * * * *
(aa) restraining orders under section 10 of the Drug Trafficking (Civil Proceedings) Act 1990 of New South Wales;
(b) restraining orders under subsection 43 (2) of the Confiscation of Proceeds of Crime Act 1989 of New South Wales;
(c) restraining orders under subsection 16 (3) of the Crimes (Confiscation of Profits) Act 1986 of Victoria;
(d) restraining orders under subsection 17 (8) of the Crimes (Confiscation of Profits) Act 1989 of Queensland;
(e) sequestration orders under subsection 6 (1) of the Crimes (Confiscation of Profits) Act, 1986 of South Australia;
(f) restraining orders subsection 20 (7) of the Crimes (Confiscation of Profits) Act 1988 of Western Australia;
(fa) restraining orders under section 26 of the Crime (Confiscation of Profits) Act 1993 of Tasmania;
(g) restraining orders under subsection 14 (2) of the Crimes (Forfeiture of Proceeds) Act 1988 of the Northern Territory;
(h) restraining orders under subsection 45 (2) of the Proceeds of Crime Act 1991 of the Australian Capital Territory.
Declaration of substances—definition of “narcotic substance”
7. For the purposes of the definition of “narcotic substance” in subsection 4 (1) of the Act, each substance, or each substance of a kind, specified in an item in Schedule 1 is declared to be a substance to which the definition applies.
Suspended funds
7A. For the purposes of paragraph (a) of the definition of “suspended funds” in subsection 4 (1) of the Act, the following amounts paid into the Trust Fund are suspended funds:
(a) if the DPP gives the Official Trustee a copy of a notice referred to in regulation 13—any amount estimated by the Official Trustee to be equal to the amount payable in accordance with an order:
(i) referred to in the notice; and
(ii) that may be made under subsection 21(6), 31 (6) or 31 (7) of the Act;
(b) an amount that is:
(i) referred to in paragraph 34B (1) (b) of the Act; and
(ii) derived from the enforcement in a foreign country of an interstate forfeiture order or an interstate pecuniary penalty order;
(c) an amount that is referred to in paragraph 34B (1) (c) of the Act;
(d) an amount that is referred to in paragraph (p) or (q) of the definition of “proceeds of confiscated assets” in subsection 4 (1) of the Act, unless the Commonwealth is not obliged to make a payment of that amount for the purposes of subparagraph 34C (1) (a) (ii) of the Act;
(e) an amount that is referred to in paragraph 34B (1) (e) of the Act;
(f) an amount in respect of which notice has been given to the Official Trustee under subregulation 11 (2) or 12 (2) or (3).
Remuneration of Official Trustee
8. (1) There is payable to the Official Trustee in respect of the performance or exercise by the Official Trustee of functions, duties or powers under the Act, if the person performing or exercising such functions, duties or powers in the name of, or on behalf of, the Official Trustee:
(a) is a Level 1 officer in the Senior Executive Service of the Australian Public Service or is an officer of a higher classification in the Australian Public Service—remuneration of the amount for each hour or part of an hour prescribed in paragraph 16.07 (8) (c) of the Bankruptcy Regulations; or
(b) is a Senior Officer, Grade C in the Australian Public Service or is an officer of a higher classification in the Australian Public Service, not being a classification referred to in paragraph (a)—remuneration of the amount for each hour or part of an hour prescribed in paragraph 16.07 (8) (d) of the Bankruptcy Regulations ; or
(c) is an Administrative Service Officer, Class 6 in the Australian Public Service or is an officer of a lower classification in the Australian Public Service—remuneration of the amount for each hour or part of an hour prescribed in paragraph 16.07 (8) (e) of the Bankruptcy Regulations;
during which any of those functions, duties or powers are being performed or exercised.
(2) For the purposes of subregulation (1), a person who, for the time being, is performing the duties of a particular office in the Australian Public Service is taken to be the holder of that office.
Costs etc. payable to Official Trustee
9. There is payable to the Official Trustee an amount equal to the amount of costs, charges and expenses incurred in connection with the performance or exercise by the Official Trustee of functions, duties or powers under the Act.
Notice of application for court order regarding third party interest
10. (1) For the purposes of subsection 21(9) of the Act, the following notices are prescribed, namely:
(a) in respect of an application under subsection 21 (1) of the Act—a notice in accordance with Form 1 in Schedule 2; and
(b) in respect of an application under subsection 21 (2) of the Act—a notice in accordance with Form 2 in Schedule 2.
(2) For the purposes of subsection 23A (10) of the Act, the following notice is prescribed, namely, a notice in accordance with Form 3 in Schedule 2.
(3) For the purposes of subsection 31 (7A) of the Act, the following notice is prescribed, namely, a notice in accordance with Form 4 in Schedule 2.
Notice by AFP of possible claims under the equitable sharing program
11. (1) In this regulation, unless the contrary intention appears:
“condemned goods” has the same meaning as in section 208DA of the Customs Act 1901;
“narcotic goods” and “narcotic-related goods” have the same respective meanings as in the Customs Act 1901;
“property” means money, proceeds or an amount, as each case requires, referred to in paragraph (b) or (c) of the definition of “proceeds of confiscated assets” in subsection 4 (1) of the Act.
(2) As soon as practicable after narcotic-related goods (other than narcotic goods) are condemned or taken to be condemned, an AFP member must give notice in writing to the Official Trustee if the member considers that the condemned goods are property in respect of which a claim may be made under the equitable sharing program.
(3) Notice to the Official Trustee must include:
(a) the name of the claimant State; and
(b) the percentage of the value of the property that is likely to be payable in respect of the claim; and
(c) other brief particulars of the claim.
Notice by DPP of possible claims under the equitable sharing program
12. (1) In this regulation:
“property” means money, proceeds or an amount, as each case requires, referred to in paragraph (d), (e), (f), (g), (h), (i), (j), (k), (n) or (o) of the definition of “proceeds of confiscated assets” in subsection 4 (1) of the Act.
(2) As soon as practicable after:
(a) a forfeiture order is made under subsection 19 (1) of the Act; or
(b) the forfeiture under section 30 of the Act of property within the meaning of that section; or
(c) a restraining order is made under subsection 43 (2) of the Act;
the DPP must give notice in writing to the Official Trustee if the DPP considers that the property to which the order or forfeiture as the case may be, relates is property in respect of which a claim may be made under the equitable sharing program.
(3) If the DPP:
(a) applies to a court for a pecuniary penalty order:
(i) under Division 3 of Part II of the Act; or
(ii) under section 243B of the Customs Act 1901; and
(b) considers that a claim may be made under the equitable sharing program in respect of any amount that is, or may be, paid into the Trust Fund as a result of the order;
the DPP must, as soon as practicable, give notice in writing to the Official Trustee accordingly.
(4) Notice under subregulation (2) or (3) must include:
(a) the name of the claimant State; and
(b) the percentage of the property likely to be payable in respect of the claim; and
(c) other brief particulars of the claim.
DPP to give Official Trustee copies of certain notices
13. (1) If the DPP is given notice under subsection 21 (9) or 31 (7A) of the Act of the making of an application of an order, the DPP must give the Official Trustee a copy of the notice.
(2) If the DPP is given notice of an application for a declaration, or of a declaration, under subsection 19 (5) of the Act, the DPP must inform the Official Trustee as soon as practicable.
Annual management fee for Trust Fund
14. (1) For the purposes of subparagraph 34C (1) (a) (iv) of the Act, the prescribed annual management fee is $10,000.
(2) The annual management fee is payable on 27 December in each year, beginning on 27 December 1992.
Determination of amount of balance of distributable funds
15. (1) In making a determination for the purposes of subsection 34D (1) of the Act, the Attorney-General is to have regard to the following matters:
(a) any amount in respect of which notice has been given to the Official Trustee under subregulation 11 (2) or 12 (2) or (3);
(b) any amount payable to a State or to a foreign country under subparagraph 34C (1) (a) (i) of the Act;
(c) any amount of suspended funds in respect of which a payment has not been, but may be, made under subparagraph 34C (1) (a) (i) of the Act;
(d) any amount that may be required to make a payment referred to in subparagraph 34C (1) (a) (v) of the Act;
(e) the amount of suspended funds that the Official Trustee declares under subsection 34E (3) to be distributable funds.
* * * * * * * * * *
* * * * * * * * * *
Prescribed particulars of certificate—paragraph 98 (5) (b) of the Act
17. A certificate issued by the registrar of a court under paragraph 98 (5) (b) of the Act must include the following particulars:
(a) the name of the court that made the pecuniary penalty order;
(b) the date of the order;
(c) the amount of money that is to be paid under the order;
(d) the identity of the person who must pay the amount.
Registration of certificate under subsection 98 (5A) of the Act
18. A certificate issued by a registrar under paragraph 98 (5) (b) of the Act may be registered by filing it in a court that has jurisdiction for the recovery of debts of an amount equal to the amount of the pecuniary penalty order.
SCHEDULE 2
FORMS
FORM 1 Subregulation 10 (1)
COMMONWEALTH OF AUSTRALIA
Proceeds of Crime Act 1987
NOTICE IN RESPECT OF AN APPLICATION UNDER SUBSECTION 21 (1) FOR AN ORDER IN RESPECT OF AN INTEREST IN PROPERTY
To: The Commonwealth Attorney-General
Robert Garran Offices
National Circuit
Barton ACT 2600
The Commonwealth Director of Public Prosecutions
(address of relevant regional office)
(Full name of applicant) of (address), being a person who claims an interest in the property specified in the Schedule, hereby gives notice that application has been made under subsection 21 (1) of the Proceeds of Crime Act 1987 for an order under subsection 21 (6) of that Act in respect of an interest which is the subject of an application for a forfeiture order under subsection 19 (1) of that Act.
The application for a forfeiture order was filed in (name and location of court) on
19 in respect of a conviction within the meaning of section 5 of the Proceeds of Crime Act 1987 of (name of convicted person) for (state offence(s)) on (date of conviction) by (name and location of court).
The abovementioned person who claims an interest has applied to the court for an order with respect to the interest claimed:
(a) declaring the nature, extent and value (as at the time when the order is made) of that person’s interest; and
*(b) directing the Commonwealth to transfer the interest to that person.
*(c) declaring that there is payable by the Commonwealth to that person an amount equal to the value of the interest as so declared by the court. This application has been set down for *mention/*hearing in the (name and location of court) on 19 at *a.m/*p.m
The property to which this notice relates is as follows:
(specify property)
Dated 19 .
..........................................................
*Applicant giving notice/
*solicitor
*Omit if not applicable.
FORM 2 Subregulation 10 (1)
COMMONWEALTH OF AUSTRALIA
Proceeds of Crime Act 1987
NOTICE IN RESPECT OF AN APPLICATION UNDER SUBSECTION 21 (2) FOR AN ORDER IN RESPECT OF AN INTEREST IN FORFEITED PROPERTY
To: The Commonwealth Attorney-General
Robert Garran Offices
National Circuit
Barton ACT 2600
The Commonwealth Director of Public Prosecutions
(address of relevant regional office)
(Full name of applicant) of (address), being a person who claims an interest in the property specified in the Schedule, hereby gives notice that application has been made under subsection 21 (2) of the
Proceeds of Crime Act 1987 for an order under subsection 21 (6) of that Act in respect of an interest which was forfeited to the Commonwealth under that Act.
The property to which this notice relates was forfeited by order of (name and location of court) on 19 following the conviction within the meaning of section 5 of the Proceeds of Crime Act 1987 of (name of convicted person) for (state offence(s)).
The abovementioned applicant has applied to the court for an order with respect to the interest claimed:
(a) declaring the nature, extent and value (as at the time when the order is made) of that person’s interest; and
*(b) directing the Commonwealth to transfer the interest to the applicant.
*(c) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value of the interest as so declared by the court.
The application has been set down for *mention/*hearing in the (name and location of court) on 19 at *a.m./*p.m.
SCHEDULE
The property to which this notice relates is as follows:
(specify property)
Dated 19 .
..........................................................
*Applicant giving notice/
*solicitor
*Omit if not applicable.
FORM 3 Subregulation 10(2)
COMMONWEALTH OF AUSTRALIA
Proceeds of Crime Act 1987
NOTICE IN RESPECT OF AN APPLICATION UNDER SUBSECTION 23A (3) FOR
AN ORDER IN RESPECT OF AN INTEREST IN PROPERTY WHICH IS THE SUBJECT OF A FOREIGN FORFEITURE ORDER
To: The Commonwealth Attorney-General
Robert Garran Offices
National Circuit
Barton ACT 2600
The Commonwealth Director of Public Prosecutions
(address of relevant regional office)
(Full name of applicant) of (address), being a person who claims an interest in the property specified in the Schedule, hereby gives notice that application has been made under subsection 23A (3) of the Proceeds of Crime Act 1987 for an order under subsection 23A (7) of that Act in respect of an interest which is the subject of a foreign forfeiture order.
The foreign forfeiture order in respect of the property to which this notice relates was registered under the Mutual Assistance in Criminal Matters Act 1987 by order of (name and location of court) on 19 and made with respect to the conviction of (name of convicted person) for (state offence(s)) on 19 by (name and location of court).
The abovementioned applicant has applied to the court for an order with respect to the interest claimed:
(a) declaring the nature, extent and value (as at the time when the order is made) of that applicant’s interest; and
*(b) directing the Commonwealth to transfer the interest to the applicant.
*(c) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value of the interest as so declared by the court.
The application has been set down for *mention/*hearing in the (name and location of court) on 19 at *a.m./*p.m.
SCHEDULE
The property to which this notice relates is as follows:
(specify property)
Dated 19 .
..........................................................
*Applicant giving notice/
*solicitor
*Omit if not applicable.
FORM 4 Subregulation 10 (3)
COMMONWEALTH OF AUSTRALIA
Proceeds of Crime Act 1987
NOTICE IN RESPECT OF AN APPLICATION UNDER SUBSECTION 31 (1) FOR AN ORDER IN RESPECT OF AN INTEREST IN FORFEITED PROPERTY PREVIOUSLY THE SUBJECT OF A RESTRAINING ORDER
To: The Commonwealth Attorney-General
Robert Garran Offices
National Circuit
Barton ACT 2600
The Commonwealth Director of Public Prosecutions
(address of relevant regional office)
(Full name of applicant) of (address), being a person who claims an interest in the property specified in the Schedule, hereby gives notice that application has been made under subsection 31 (1) of the Proceeds of Crime Act 1987 for an order under subsection 31 (6) or (7) of that Act in respect of an interest which was forfeited to the Commonwealth under section 30 (1) of the Act.
The property to which this notice relates was forfeited under section 30 of the Proceeds of Crime Act 1987 on 19 following the conviction within the meaning of section 5 of that Act of (name of convicted person) for a serious offence within the meaning of that Act, namely(state offence(s)) by (name and location of court).
The abovementioned applicant has applied to the court for an order with respect to the claimed interest:
(a) declaring the nature, extent and value (in the case of an order under subsection 31(7) of the Proceeds of Crime Act 1987—as at the time when the order is made) of the applicant’s interest; and
*(b) directing the Commonwealth to transfer the interest to the applicant.
*(c) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value of the interest as so declared by the court.
*(d) declaring that section 30 of the Proceeds of Crime Act 1987 shall cease to operate in relation to the interest if payment is made in accordance with section 33 of that Act.
The application has been set down for *mention/*hearing in the (name and location of court) on 19 at *a.m./*p.m.
SCHEDULE
The property to which this notice relates is as follows:
(specify property)
Dated 19 .
..........................................................
*Applicant giving notice/
*solicitor
*Omit if not applicable.