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A Bill for an Act to amend various Acts relating to the enforcement of the criminal law and proceeds of crime, and for related purposes
Administered by: Attorney-General's
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 24 Mar 2011
Introduced HR 23 Mar 2011
Table of contents.

2010‑2011

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Crimes Legislation Amendment Bill (No. 2) 2011

 

No.      , 2011

 

(Justice)

 

 

 

A Bill for an Act to amend various Acts relating to the enforcement of the criminal law and proceeds of crime, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedule(s)......................................................................................... 3

Schedule 1—Australian Commission for Law Enforcement Integrity amendments       4

Customs Administration Act 1985                                                                            4

Law Enforcement Integrity Commissioner Act 2006                                            4

Schedule 2—Proceeds of crime amendments                                                        6

Part 1—Responsible authorities for proceeds of crime: the DPP and the AFP   6

Division 1—Main amendments                                                                                6

Australian Federal Police Act 1979                                                                        6

Proceeds of Crime Act 2002                                                                                      7

Division 2—Substituted references to proceeds of crime authority                 12

Proceeds of Crime Act 2002                                                                                    12

Division 3—Substituted references to responsible authority                             13

Proceeds of Crime Act 2002                                                                                    13

Division 4—Other references to the Director of Public Prosecutions                18

Proceeds of Crime Act 2002                                                                                    18

Division 5—Application of amendments of the Proceeds of Crime Act 2002 21

Division 6—Consequential amendments                                                              21

Administrative Decisions (Judicial Review) Act 1977                                       21

Bankruptcy Act 1966                                                                                                22

Crimes Act 1914                                                                                                         24

Crimes Legislation Amendment (Serious and Organised Crime) Act 2010    25

Family Law Act 1975                                                                                                25

Foreign Evidence Act 1994                                                                                     31

International Criminal Court Act 2002                                                                32

International War Crimes Tribunals Act 1995                                                    33

Mutual Assistance in Criminal Matters Act 1987                                               35

Trade Marks Act 1995                                                                                              37

Part 2—Other proceeds of crime amendments                                              39

Proceeds of Crime Act 2002                                                                                    39

 


A Bill for an Act to amend various Acts relating to the enforcement of the criminal law and proceeds of crime, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Crimes Legislation Amendment Act (No. 2) 2011.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

The day after this Act receives the Royal Assent.

 

3.  Schedule 2, items 1 to 154

The later of:

(a) 1 January 2012; and

(b) the day after this Act receives the Royal Assent.

 

4.  Schedule 2, items 155 to 194

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

5.  Schedule 2, items 195 to 242

The later of:

(a) 1 January 2012; and

(b) the day after this Act receives the Royal Assent.

 

6.  Schedule 2, Part 2

The day after this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Australian Commission for Law Enforcement Integrity amendments

  

Customs Administration Act 1985

1  After paragraph 16(2)(c)

Insert:

                    (ca)  for the purposes of the Law Enforcement Integrity Commissioner Act 2006 or regulations under that Act; or

Law Enforcement Integrity Commissioner Act 2006

2  Subsection 5(1) (after paragraph (b) of the definition of head)

Insert:

                   (ba)  if the agency is Customs—the Chief Executive Officer of Customs; or

3  Subsection 5(1) (after paragraph (b) of the definition of law enforcement agency)

Insert:

                   (ba)  Customs; or

4  After subsection 10(2)

Insert:

Customs staff members

          (2A)  The following are staff members of Customs for the purposes of this Act:

                     (a)  the Chief Executive Officer of Customs;

                     (b)  a member of the staff referred to in subsection 15(1) of the Customs Administration Act 1985;

                     (c)  a person authorised by the Chief Executive Officer of Customs, in writing, to perform a function of a person employed in Customs.

5  After paragraph 10(5)(b)

Insert:

                   (ba)  a person referred to in paragraph (2A)(c) is a secondee to Customs; and

6  Application

(1)       The amendments made by items 1 to 5 of this Schedule apply in relation to corrupt conduct, whether engaged in before or after the commencement of the Law Enforcement Integrity Commissioner Act 2006.

(2)       However, the requirement for the Chief Executive Officer of Customs to notify a corruption issue to the Integrity Commissioner under that Act only applies on and after this item commences.

(3)       To avoid doubt, the amendments made by items 1 to 5 apply in relation to corrupt conduct even if the conduct was engaged in at a time when Customs was known as the Australian Customs Service.

(4)       In this item:

corrupt conduct has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.

corruption issue has the same meaning as in the Law Enforcement Integrity Commissioner Act 2006.


 

Schedule 2Proceeds of crime amendments

Part 1Responsible authorities for proceeds of crime: the DPP and the AFP

Division 1—Main amendments

Australian Federal Police Act 1979

1  At the end of section 69C

Add:

             (3)  The Commissioner may, in writing, delegate to the Deputy Commissioner or a senior executive AFP employee all or any of the Commissioner’s powers, functions or duties as a proceeds of crime authority under the Proceeds of Crime Act 2002 or any other Act.

Note:          As a proceeds of crime authority, the Commissioner may conduct proceedings under the Proceeds of Crime Act 2002, and has related powers, functions and duties under that Act and other Acts (see the definitions of proceeds of crime authority and responsible authority in section 338 of that Act).

2  Application of amendment—the Australian Federal Police Act 1979

(1)       The amendment of the Australian Federal Police Act 1979 made by item 1 of this Schedule applies as set out in this item.

(2)       The amendment applies in relation to the Commissioner’s powers, functions or duties as a proceeds of crime authority in relation to orders (or applications or proceedings for orders) under the Proceeds of Crime Act 2002 made or (in the case of proceedings) started before, at or after the commencement of item 1.

(3)       The amendments apply under subitem (2) of this item regardless of whether the conduct giving rise to those orders (or applications or proceedings for orders) occurred, or is suspected to have occurred, before, at or after the commencement of item 1.

Proceeds of Crime Act 2002

3  After section 315A

Insert:

315B  Transfer of responsibility for principal orders and applications

Transfer

             (1)  A *proceeds of crime authority (the transferor authority) may, with the consent of the other proceeds of crime authority (the transferee authority), transfer to the other authority responsibility for:

                     (a)  an application for a *principal order (if the order has not been made); or

                     (b)  a principal order.

Note 1:       The proceeds of crime authority is the Commissioner of the Australian Federal Police, or the DPP (see the definition of proceeds of crime authority in section 338). Either authority may start and conduct proceedings under this Act.

Note 2:       The proceeds of crime authority that applies for a principal order under this Act, or to which responsibility is transferred under this section, is referred to in this Act as the responsible authority (see the definition in section 338).

Note 3:       The principal orders under this Act are restraining orders, forfeiture orders, pecuniary penalty orders, literary proceeds orders and unexplained wealth orders (see the definitions of principal order and the individual orders in section 338).

             (2)  The transferee authority must give a written notice of transfer of responsibility for an application for a *principal order, or for a principal order, to:

                     (a)  in the case of a transfer of responsibility for an application for a principal order:

                              (i)  the court before which proceedings on the application are being heard (or are to be heard); and

                             (ii)  each party (if any) to those proceedings; and

                            (iii)  any court in which proceedings related to the application are being heard, or are to be heard, if the transferee authority considers it appropriate; and

                            (iv)  any person to whom notice of the application has been given; and

                             (v)  the Family Court of Australia, if an application has been made to that court by a *proceeds of crime authority for a stay of proceedings because of the application for the principal order, or that court has given notice to a proceeds of crime authority of a stay having been granted; or

                     (b)  in the case of a transfer of responsibility for a principal order:

                              (i)  the court that made the order; and

                             (ii)  each party (if any) to the proceedings in that court on the application for the order; and

                            (iii)  any court in which proceedings related to the order are being heard, or are to be heard, if the transferee authority considers it appropriate; and

                            (iv)  any person to whom notice of the order, or of the application for the order, has been given; and

                             (v)  the Family Court of Australia, if an application has been made to that court by a proceeds of crime authority for a stay of proceedings because of the order or the application for the order, or that court has given notice to a proceeds of crime authority of a stay having been granted.

Note:          Notice is not required to be given in the circumstances mentioned in subsection (4).

             (3)  It is sufficient compliance with a requirement under subsection (2) to give a person (other than a court) a notice of transfer if the transferee authority takes reasonable steps to give the notice to the person.

             (4)  The transferee authority for an application for a *restraining order or a *forfeiture order is not required to give any notice of the transfer (other than to the court before which proceedings on the application are being heard):

                     (a)  in the case of an application for a restraining order:

                              (i)  if the court has been requested under subsection 26(4) to consider the application without notice having been given to the person; or

                             (ii)  during a period ordered by the court under subsection 33(3) (delay in giving notice to protect integrity of an investigation or prosecution); or

                     (b)  in the case of an application for a forfeiture order—if the court has, under section 63 (person has absconded), dispensed with the requirement to give notice to the person under subsections 61(1) and 62(3).

Day of effect

             (5)  A transfer takes effect on the day the following court receives the notice of transfer given under subsection (2):

                     (a)  in the case of a transfer of responsibility for an application for a *principal order—the court before which proceedings on the application are being heard (or are to be heard);

                     (b)  in the case of a transfer of responsibility for a principal order—the court that made the order.

Effects of transfer—proceedings etc.

             (6)  On and after the day of effect of a transfer of responsibility for an application for a *principal order, or a principal order:

                     (a)  the transferee authority replaces the transferor authority as a party to any applications or proceedings (related applications or proceedings) under this or any other Act in relation to, or arising out of, the application or order, or to which the application or order is relevant; and

                     (b)  the transferee authority may (subject to this Act and any other Act) initiate, conduct or respond to any related applications or proceedings; and

                     (c)  the transferee authority is responsible for any functions, powers and duties under this Act, or any other Act, to be performed or exercised by a *responsible authority in relation to all of the following:

                              (i)  the application or the order;

                             (ii)  any related applications or proceedings;

                            (iii)  any order (including a principal order, or another principal order) arising out of related applications or proceedings.

Effects of transfer—as between transferee and transferor authorities

             (7)  On and after the day of effect of the transfer, the following paragraphs have effect in relation to the application or order and any related applications or proceedings:

                     (a)  the functions, powers and duties of the transferor authority are extinguished (subject to subsection (8));

                     (b)  the transferee authority is bound by the actions of the transferor authority while it was the *responsible authority;

                     (c)  without limiting paragraph (b), the transferee authority is:

                              (i)  bound by any undertakings with respect to the payment of damages or costs, or both, entered into by the transferor authority while it was the responsible authority; and

                             (ii)  liable for any damages or costs awarded by any court against the transferor authority on or after that day, whether or not the damages or costs result from any action (or failure to act) of the transferor authority while it was the responsible authority.

             (8)  However, the transferor authority continues to be liable on and after the day of effect of the transfer for any damages or costs that had been awarded against the authority, while it was the *responsible authority, in relation to the application or order and any related applications or proceedings.

4  Section 338

Insert:

principal order means any of the following orders:

                     (a)  a *restraining order;

                     (b)  a *forfeiture order;

                     (c)  a *pecuniary penalty order;

                     (d)  a *literary proceeds order;

                     (e)  an *unexplained wealth order.

5  Section 338

Insert:

proceeds of crime authority means:

                     (a)  the Commissioner of the Australian Federal Police; or

                     (b)  the *DPP.

Note 1:       Section 69C of the Australian Federal Police Act 1979 provides for the delegation of the functions, powers and duties of the Commissioner of the Australian Federal Police under this Act.

Note 2:       Section 31 of the Director of Public Prosecutions Act 1983 provides for the delegation of the functions of the DPP.

Note 3:       If an application for a principal order, or a principal order, has already been made, the proceeds of crime authority responsible for the application or the order is referred to as the responsible authority (see the definition in this section).

6  Section 338

Insert:

responsible authority, in relation to an application for a *principal order, or a principal order, or to an application, proceedings, function, order, power or duty related to, or arising out of, such an application or order, means:

                     (a)  in the case of an application for a principal order:

                              (i)  the *proceeds of crime authority that made the application; or

                             (ii)  if responsibility for the application has been transferred under section 315B—the proceeds of crime authority to which responsibility has been transferred (or has been latest transferred) under that section; or

                     (b)  in the case of a principal order:

                              (i)  the proceeds of crime authority that made the application for the order; or

                             (ii)  if responsibility for that application, or the order, has been transferred under section 315B—the proceeds of crime authority to which responsibility has been transferred (or has been latest transferred) under that section.

Note 1:       The proceeds of crime authority is the Commissioner of the Australian Federal Police, or the DPP (see the definition of proceeds of crime authority in this section). Either authority may start and conduct proceedings under this Act.

Note 2:       Section 315B provides that responsibility for an application for a principal order, or for a principal order, may be transferred between the 2 proceeds of crime authorities.

Division 2—Substituted references to proceeds of crime authority

Proceeds of Crime Act 2002

7  Multiple amendments

The specified provisions of the Proceeds of Crime Act 2002 listed in items 8 to 30 of this Division are amended by:

                     (a)  omitting “the *DPP” (wherever occurring) and substituting “a *proceeds of crime authority”; and

                     (b)  omitting “The *DPP” (wherever occurring) and substituting “A *proceeds of crime authority”; and

                     (c)  omitting “the DPP” (wherever occurring) and substituting “a proceeds of crime authority”.

8  Paragraph 17(1)(c)

9  Paragraph 18(1)(c)

10  Paragraph 19(1)(c)

11  Paragraph 20(1)(c)

12  Paragraph 20A(1)(c)

13  Section 25

Note:       The heading to section 25 is altered by omitting “DPP” and substituting “Proceeds of crime authority”.

14  Section 27

Note:       The heading to section 27 is altered by omitting “DPP” and substituting “Proceeds of crime authority”.

15  Paragraphs 48(1)(a) and (2)(a)

16  Section 50 (note)

17  Paragraph 54(a)

18  Subsection 59(1)

Note:       The heading to section 59 is altered by omitting “DPP” and substituting “Proceeds of crime authority”.

19  Subsection 60(1)

20  Paragraphs 60(3)(a) and (b)

21  Paragraph 116(1)(a)

22  Subsection 134(1)

Note:       The heading to section 134 is altered by omitting “DPP” and substituting “Proceeds of crime authority”.

23  Subsection 135(1)

24  Paragraphs 152(1)(a) and (2)(a)

25  Subsection 162(1)

Note:       The heading to section 162 is altered by omitting “DPP” and substituting “Proceeds of crime authority”.

26  Paragraph 179B(1)(a)

27  Section 179M

Note:       The heading to section 179M is altered by omitting “DPP” and substituting “Proceeds of crime authority”.

28  Subsection 179N(1)

29  Subsection 179P(1)

30  Paragraph 307(4)(c)

Division 3—Substituted references to responsible authority

Proceeds of Crime Act 2002

31  Multiple amendments

The specified provisions of the Proceeds of Crime Act 2002 listed in items 32 to 114 of this Division are amended by:

                     (a)  omitting “*DPP” (wherever occurring) and substituting “*responsible authority”; and

                     (b)  omitting “DPP” (wherever occurring) and substituting “authority”; and

                     (c)  omitting “*DPP’s” (wherever occurring) and substituting “*responsible authority’s”.

32  Subsection 21(2)

33  Paragraph 24(2)(b)

34  Subsections 24A(3) and (4)

35  Subsections 26(1), (2), (4) and (5)

36  Subsections 30(2), (3) and (4)

37  Subsections 31(4), (5) and (6)

38  Paragraph 32(b)

Note:       The heading to section 32 is altered by omitting “DPP” and substituting “responsible authority”.

39  Subsections 33(1) to (4)

40  Subsections 36(1) and (2)

41  Paragraphs 39(2)(a) and (3A)(a)

42  Subsections 39(4A) and (4B)

43  Subsections 42(2) and (4)

44  Section 43

45  Paragraphs 44(1)(d) and (2)(d)

46  Paragraph 49(1)(e)

Note:       Subsection 49(1) is also amended by item 122 of this Schedule.

47  Subsections 61(1) and (2)

48  Paragraphs 62(1)(a) and (b)

49  Subsection 62(3)

50  Section 63

51  Paragraph 67(1)(b)

52  Subsection 67(2)

53  Subparagraph 68(1)(b)(i)

54  Subsections 75(1), (2) and (3)

Note:       Subsection 75(1) is also amended by item 123 of this Schedule.

55  Section 76

56  Subsections 79(1), (2) and (3)

Note:       Subsection 79(1) is also amended by item 124 of this Schedule.

57  Section 79A

58  Paragraphs 81(1)(b) and (2)(b)

59  Subsection 82(1) (including the note)

60  Subsection 82(2)

61  Paragraphs 84(1)(a) and (b)

62  Subsections 87(2) and (3)

63  Subsection 92A(2)

64  Subsection 93(4)

65  Subsections 94(3) to (6)

66  Subsections 94A(6) to (9)

67  Paragraph 95(a)

68  Subsection 97(2)

69  Subsections 104(4) to (7)

70  Paragraphs 107(1)(c) and (2)(b)

71  Subsection 108(1) (including the note)

72  Subsection 108(2)

73  Paragraph 110(1)(b)

Note:       Subsection 110(1) is also amended by item 127 of this Schedule.

74  Subsection 113(3)

75  Subsections 133(1) and (4)

76  Subsections 136(1), (2) and (3)

77  Paragraphs 137(1)(a) and (b)

78  Subsection 137(3)

79  Paragraph 141(1)(b)

80  Subsection 141(4)

81  Paragraphs 146(1)(b) and (2)(b)

82  Subsection 146(2A)

83  Section 147 (including the note)

84  Section 149

85  Paragraph 149A(1)(b)

86  Subsections 161(1) and (5)

87  Subsections 163(1) and (2)

88  Paragraphs 164(1)(a) and (b)

89  Subsection 164(3)

90  Paragraph 168(1)(b)

91  Subsection 168(4)

92  Paragraphs 173(1)(b) and (2)(b)

93  Section 174 (including the note)

94  Section 176

95  Subsection 178(2)

96  Subsection 179B(3)

97  Subsections 179CA(3), (4) and (5)

98  Section 179D

99  Subsection 179EA(2)

100  Subsections 179K(1) and (4)

101  Subsections 179N(2) and (3)

102  Subsections 179Q(2) and (3)

103  Paragraph 179S(1)(b)

104  Subsection 179S(4)

105  Subsection 182(2)

106  Subsection 183(1)

107  Paragraph 187(1)(b)

108  Paragraph 188(3)(c)

109  Subsection 189(1)

110  Paragraphs 191(1)(b) and (c)

111  Paragraph 192(b)

112  Paragraph 193(1)(b)

113  Paragraph 194(2)(b)

114  Paragraph 322(5)(b)

Note:       Subsection 322(5) is also amended by item 138 of this Schedule.

Division 4—Other references to the Director of Public Prosecutions

Proceeds of Crime Act 2002

115  Paragraph 15Q(2)(b)

Repeal the paragraph, substitute:

                     (b)  the person has given written notice of the application and the grounds for the application to the *enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the *authorised officer who applied for the freezing order; and

116  Subsection 29(1) (note)

Omit “DPP”, substitute “responsible authority”.

117  Section 29A (note)

Omit “DPP”, substitute “responsible authority”.

118  Subsection 34(2)

Omit “*DPP”, substitute “*responsible authority for the *restraining order”.

119  Subsection 35(1)

Omit “If the *DPP has previously applied to a *registration authority under section 34 for the recording in a register of particulars of a *restraining order covering particular property, the DPP”, substitute “If the *responsible authority for a *restraining order covering particular property has previously applied to a *registration authority under section 34 for the recording in a register of particulars of the order, the responsible authority”.

120  Section 46

Omit “the DPP”, substitute “a proceeds of crime authority (the Commissioner of the Australian Federal Police or the DPP)”.

121  Paragraphs 47(1)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  the *responsible authority for a *restraining order under section 18 that covers the property applies for an order under this subsection; and

                     (b)  the restraining order has been in force for at least 6 months; and

122  Paragraphs 49(1)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  the *responsible authority for a *restraining order under section 19 that covers the property applies for an order under this subsection; and

                     (b)  the restraining order has been in force for at least 6 months; and

123  At the end of subsection 75(1)

Add:

Note:          The responsible authority in relation to an application for an exclusion order is the authority responsible for the forfeiture order or forfeiture application referred to in section 73 (making exclusion orders).

124  At the end of subsection 79(1)

Add:

Note:          The responsible authority in relation to an application for a compensation order is the authority responsible for the forfeiture order or forfeiture application referred to in section 77 (making compensation orders).

125  Subsection 92A(1)

Omit “*DPP”, substitute “*responsible authority for the *restraining order referred to in paragraph 92(1)(b)”.

126  Subsection 92A(1)

Omit “DPP”, substitute “authority”.

127  Paragraphs 97(1)(b) and 110(1)(a)

Omit “*DPP”, substitute “*responsible authority for the *restraining order referred to in paragraph 92(1)(b)”.

128  Subsection 113(2)

Omit “*DPP”, substitute “*responsible authority for the *restraining order referred to in paragraph 92(1)(b)”.

129  Subsection 113(2)

Omit “DPP”, substitute “authority”.

130  Subsection 116(4) (note)

Omit “the DPP applying for”, substitute “applications”.

131  Subsection 143(1)

Omit “*DPP”, substitute “*responsible authority for the *pecuniary penalty order or *restraining order referred to in that section”.

132  Subsection 170(1)

Omit “*DPP”, substitute “*responsible authority for the *literary proceeds order or *restraining order referred to in that section”.

133  At the end of subsection 170(1)

Add:

Note:          A charge is created under section 169 if both a literary proceeds order and a restraining order have been made in relation to an indictable offence (or related offence).

134  Subsection 182(1)

Omit “*DPP”, substitute “*responsible authority for the *principal order, or the application for a principal order, in relation to which the examination order is sought”.

135  Subsections 282(4) and 282A(4)

Omit “*DPP”, substitute “*responsible authority for the relevant order”.

136  Section 294

Omit “*DPP”, substitute “*responsible authority for the *restraining order referred to in section 293”.

137  Paragraph 297(ga)

Omit “*DPP”, substitute “*responsible authority for the *principal order, or application for a principal order, in relation to which the examination was conducted”.

138  Subsection 322(5)

Omit “*DPP”, substitute “*responsible authority for the targeted order”.

Division 5—Application of amendments of the Proceeds of Crime Act 2002

139  Application of amendments—Divisions 1 to 4 of this Schedule

(1)       The amendments of the Proceeds of Crime Act 2002 made by items 3 to 138 of this Schedule apply as set out in this item.

(2)       The amendments apply in relation to orders (or applications or proceedings for orders) under the Proceeds of Crime Act 2002 made or (in the case of proceedings) started before, at or after the commencement of those items.

(3)       The amendments apply under subitem (2) of this item regardless of whether the conduct giving rise to those orders (or applications or proceedings for orders) occurred, or is suspected to have occurred, before, at or after the commencement of those items.

Division 6—Consequential amendments

Administrative Decisions (Judicial Review) Act 1977

140  Paragraphs (ya) and (yb) of Schedule 1

Omit “the DPP”, substitute “a proceeds of crime authority”.

141  After paragraph (yb) of Schedule 1

Insert:

                   (yc)  decisions of a proceeds of crime authority to transfer to another proceeds of crime authority responsibility for an application for a principal order, or a principal order, under section 315B of the Proceeds of Crime Act 2002;

Bankruptcy Act 1966

142  Subsection 5(1)

Insert:

Commonwealth proceeds of crime authority means a proceeds of crime authority within the meaning of the Proceeds of Crime Act 2002.

Note:          Under that Act, the proceeds of crime authority is either the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definition of proceeds of crime authority in section 338 of that Act). Responsibility can be transferred between these authorities (see section 315B of that Act).

143  Paragraph 12(1C)(a)

Omit “the Director of Public Prosecutions”, substitute “the Commonwealth proceeds of crime authority that is the responsible authority, or that is proposed to be the responsible authority, for the application or proposed application under the Proceeds of Crime Act 2002”.

144  Subsection 58A(3)

After “Director of Public Prosecutions”, insert “(or the Commissioner of the Australian Federal Police, if the Commissioner is the Commonwealth proceeds of crime authority that is the responsible authority for the order under the Proceeds of Crime Act 2002)”.

145  Section 114C

After “Director of Public Prosecutions”, insert “(or the Commissioner of the Australian Federal Police, if the Commissioner is the Commonwealth proceeds of crime authority that is the responsible authority for the order under the Proceeds of Crime Act 2002)”.

Note:       The heading to section 114C is altered by inserting “or Commissioner of the Australian Federal Police” after “Director of Public Prosecutions”.

146  Paragraph 154(6)(a)

Repeal the paragraph, substitute:

                     (a)  an application is made for an order under this subsection by a person mentioned in subsection (6A); and

147  After subsection 154(6)

Insert:

          (6A)  For the purposes of paragraph (6)(a), the application may be made by:

                     (a)  in the case of pending proceedings in relation to a forfeiture order or a pecuniary penalty order under the Proceeds of Crime Act 2002—the Commonwealth proceeds of crime authority that is, or that is proposed to be, the responsible authority for the application for the order under that Act; or

                     (b)  in the case of pending proceedings under a corresponding law—a person who is entitled to apply for an interstate confiscation order under the corresponding law.

148  Paragraph 231A(2)(a)

Repeal the paragraph, substitute:

                     (a)  an application is made for an order under this subsection by a person mentioned in subsection (2A); and

149  After subsection 231A(2)

Insert:

          (2A)  For the purposes of paragraph (2)(a), the application may be made by:

                     (a)  in the case of pending proceedings in relation to a forfeiture order or a pecuniary penalty order under the Proceeds of Crime Act 2002—the Commonwealth proceeds of crime authority that is, or that is proposed to be, the responsible authority for the application for the order under that Act; or

                     (b)  in the case of pending proceedings under a corresponding law—a person who is entitled to apply for an interstate confiscation order under the corresponding law.

150  Application of amendments—the Bankruptcy Act 1966

(1)       The amendments of the Bankruptcy Act 1966 made by items 142 to 149 of this Schedule apply as set out in this item.

(2)       The amendments apply in relation to proceeds of crime orders (or applications, proceedings or pending proceedings for proceeds of crime orders), or proceedings under the Bankruptcy Act 1966, made or (in the case of proceedings) started before, at or after the commencement of those items.

(3)       The amendments apply under subitem (2) of this item regardless of whether the conduct giving rise to those orders (or applications or proceedings for orders) occurred, or is suspected to have occurred, before, at or after the commencement of those items.

Crimes Act 1914

151  Paragraph 15YU(4)(a)

Omit “Director of Public Prosecutions”, substitute “responsible authority for the proceeding under that Act”.

152  At the end of subsection 15YU(4)

Add:

Note:          Under that Act, the responsible authority is the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definitions of responsible authority and proceeds of crime authority in section 338 of that Act). Responsibility can be transferred between these authorities (see section 315B of that Act).

153  Application of amendments—the Crimes Act 1914

(1)       The amendments of the Crimes Act 1914 made by items 151 and 152 of this Schedule apply as set out in this item.

(2)       The amendments apply in relation to proceedings under the Proceeds of Crime Act 2002 started before, at or after the commencement of those items.

(3)       The amendments apply under subitem (2) of this item regardless of whether the conduct giving rise to those proceedings occurred, or is suspected to have occurred, before, at or after the commencement of those items.

Crimes Legislation Amendment (Serious and Organised Crime) Act 2010

154  Paragraphs 107(2)(b) and (c) of Schedule 2

Omit “DPP”, substitute “responsible authority”.

Family Law Act 1975

155  Subsection 4(1) (definition of DPP)

Repeal the definition.

156  Subsection 4(1) (definition of forfeiture application)

Omit “under the Proceeds of Crime Act 2002”.

157  Subsection 4(1) (definition of forfeiture order)

Repeal the definition, substitute:

forfeiture order means:

                     (a)  a forfeiture order under the Proceeds of Crime Act 2002; or

                     (b)  an order that is made under a State or Territory proceeds of crime law and that is of a kind declared by the regulations to be a forfeiture order for the purposes of this paragraph.

158  Subsection 4(1)

Insert:

freezing order means:

                     (a)  a freezing order under the Proceeds of Crime Act 2002; or

                     (b)  an order that is made under a State or Territory proceeds of crime law and that is of a kind declared by the regulations to be a freezing order for the purposes of this paragraph.

159  Subsection 4(1)

Insert:

proceeds of crime authority has the meaning given by section 4C.

Note:          Section 4C provides for different proceeds of crime authorities in relation to orders under the Proceeds of Crime Act 2002 and State or Territory proceeds of crime laws.

160  Subsection 4(1) (paragraphs (aa), (a) and (b) of the definition of proceeds of crime order)

Omit “under the Proceeds of Crime Act 2002”.

161  Subsection 4(1)

Insert:

restraining order means:

                     (a)  a restraining order under the Proceeds of Crime Act 2002; or

                     (b)  an order that is made under a State or Territory proceeds of crime law and that is of a kind declared by the regulations to be a restraining order for the purposes of this paragraph.

162  Subsection 4(1)

Insert:

State or Territory proceeds of crime law means a law in force in a State or Territory that is declared by the regulations to be a law that corresponds to the Proceeds of Crime Act 2002.

163  After section 4B

Insert:

4C  Meaning of proceeds of crime authority

Scope

             (1)  This section sets out the meaning of proceeds of crime authority in relation to:

                     (a)  a restraining order or a forfeiture order, or an application for a forfeiture order, under the Proceeds of Crime Act 2002 (or any proceedings, orders, powers, functions or duties under this Act related to, or arising out of, such an order or application); and

                     (b)  a freezing order under the Proceeds of Crime Act 2002 (or any proceedings, orders, powers, functions or duties under this Act related to, or arising out of, such a freezing order); and

                     (c)  a proceeds of crime order, or an application for a forfeiture order, under a State or Territory proceeds of crime law (or any proceedings, orders, powers, functions or duties under this Act related to, or arising out of, such an order or application).

Note:          Freezing orders, restraining orders and forfeiture orders made under the Proceeds of Crime Act 2002 or a State or Territory proceeds of crime law are proceeds of crime orders (see subsection 4(1)).

Commonwealth proceeds of crime authorities

             (2)  For the purposes of paragraph (1)(a), proceeds of crime authority means the responsible authority for the relevant restraining order, forfeiture order or forfeiture application under the Proceeds of Crime Act 2002.

Note:          Under that Act, the responsible authority is the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definitions of responsible authority and proceeds of crime authority in section 338 of that Act). Responsibility can be transferred between these authorities (see section 315B of that Act).

             (3)  For the purposes of paragraph (1)(b), proceeds of crime authority means:

                     (a)  the Commissioner of the Australian Federal Police; or

                     (b)  the Director of Public Prosecutions.

State or Territory proceeds of crime authorities

             (4)  For the purposes of paragraph (1)(c), in relation to a provision of this Act, proceeds of crime authority means a person or body prescribed by the regulations to be the proceeds of crime authority for that provision in relation to:

                     (a)  a class of proceeds of crime order, under the relevant State or Territory proceeds of crime law, prescribed by the regulations, that includes the relevant proceeds of crime order; or

                     (b)  a class of forfeiture application, under the relevant State or Territory proceeds of crime law, prescribed by the regulations, that includes the relevant forfeiture application.

Note:          The regulations may prescribe a proceeds of crime authority in relation to a proceeds of crime order under a State or Territory proceeds of crime law by reference to any matter, including (for example) by reference to who applied for the order.

164  Paragraph 79B(3)(b)

Omit “DPP”, substitute “proceeds of crime authority”.

165  Subsection 79B(3)

Omit all the words from and including “the person must”, substitute:

the person must:

                     (c)  notify the Registry Manager in writing of the proceeds of crime order or forfeiture application; and

                     (d)  give the Registry Manager:

                              (i)  a copy of the notification referred to in paragraph (b) (if the notification is in writing); and

                             (ii)  a copy of the proceeds of crime order or forfeiture application (if the notification is accompanied by a copy of the order or application).

166  Subsections 79C(1A), (2), (3) and(4)

Omit “DPP”, substitute “proceeds of crime authority”.

167  Paragraphs 79D(1)(a) and (b)

Omit “DPP”, substitute “proceeds of crime authority”.

168  Subsection 79D(2)

Omit “DPP”, substitute “proceeds of crime authority”.

169  Subsection 79D(3)

Omit “the DPP’s”, substitute “the proceeds of crime authority’s”.

170  Subsection 79D(3)

Omit “the DPP” (wherever occurring), substitute “the authority”.

171  Subsection 79E(1)

Omit “The DPP”, substitute “The proceeds of crime authority”.

Note:       The heading to section 79E is altered by omitting “DPP” and substituting “proceeds of crime authority”.

172  Subsection 79E(1)

Omit “the DPP”, substitute “the authority”.

173  Subsection 79E(2)

Omit “DPP intervenes, the DPP”, substitute “proceeds of crime authority intervenes, the authority”.

174  Paragraph 90M(3)(b)

Omit “DPP”, substitute “proceeds of crime authority”.

175  Subsection 90M(3)

Omit all the words from and including “the person must”, substitute:

the person must:

                     (c)  notify the Registry Manager in writing of the proceeds of crime order or forfeiture application; and

                     (d)  give the Registry Manager:

                              (i)  a copy of the notification referred to in paragraph (b) (if the notification is in writing); and

                             (ii)  a copy of the proceeds of crime order or forfeiture application (if the notification is accompanied by a copy of the order or application).

176  Subsections 90N(1A), (2), (3) and (4)

Omit “DPP”, substitute “proceeds of crime authority”.

177  Paragraphs 90P(1)(a) and (b)

Omit “DPP”, substitute “proceeds of crime authority”.

178  Subsection 90P(2)

Omit “DPP”, substitute “proceeds of crime authority”.

179  Subsection 90P(3)

Omit “DPP’s”, substitute “proceeds of crime authority’s”.

180  Subsection 90P(3)

Omit “DPP” (wherever occurring), substitute “authority”.

181  Subsection 90Q(1)

Omit “The DPP”, substitute “The proceeds of crime authority”.

Note:       The heading to section 90Q is altered by omitting “DPP” and substituting “proceeds of crime authority”.

182  Subsection 90Q(1)

Omit “the DPP”, substitute “the authority”.

183  Subsection 90Q(2)

Omit “DPP intervenes, the DPP”, substitute “proceeds of crime authority intervenes, the authority”.

184  Paragraph 90VA(3)(b)

Omit “DPP”, substitute “proceeds of crime authority”.

185  Subsection 90VA(3)

Omit all the words from and including “the person must”, substitute:

the person must:

                     (c)  notify the Registry Manager in writing of the proceeds of crime order or forfeiture application; and

                     (d)  give the Registry Manager:

                              (i)  a copy of the notification referred to in paragraph (b) (if the notification is in writing); and

                             (ii)  a copy of the proceeds of crime order or forfeiture application (if the notification is accompanied by a copy of the order or application).

186  Subsections 90VB(2), (3), (4) and (5)

Omit “DPP”, substitute “proceeds of crime authority”.

187  Paragraphs 90VC(1)(a) and (b)

Omit “DPP”, substitute “proceeds of crime authority”.

188  Subsection 90VC(2)

Omit “DPP”, substitute “proceeds of crime authority”.

189  Subsection 90VC(3)

Omit “DPP’s”, substitute “proceeds of crime authority’s”.

190  Subsection 90VC(3)

Omit “DPP” (wherever occurring), substitute “authority”.

191  Subsection 90VD(1)

Omit “The DPP”, substitute “The proceeds of crime authority”.

Note:       The heading to section 90VD is altered by omitting “DPP” and substituting “proceeds of crime authority”.

192  Subsection 90VD(1)

Omit “the DPP”, substitute “the authority”.

193  Subsection 90VD(2)

Omit “DPP intervenes, the DPP”, substitute “proceeds of crime authority intervenes, the authority”.

194  Application of amendments—the Family Law Act 1975

(1)       The amendments of the Family Law Act 1975 made by items 155 to 193 of this Schedule apply as set out in this item.

(2)       The amendments apply in relation to proceeds of crime orders (or applications for forfeiture orders) if the orders (or applications) are made at or after the commencement of those items.

(3)       The amendments apply under subitem (2) of this item in relation to proceedings under the Family Law Act 1975 regardless of whether:

                     (a)  the proceedings started before, at or after the commencement of those items; or

                     (b)  the conduct giving rise to the proceeds of crime orders (or applications for forfeiture orders) occurred, or is suspected to have occurred, before, at or after the commencement of those items.

Foreign Evidence Act 1994

195  Paragraph 25A(2)(a)

Omit “Director of Public Prosecutions”, substitute “responsible authority (under that Act) in relation to the proceeding”.

196  At the end of subsection 25A(2)

Add:

Note:          Under that Act, the responsible authority is the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definitions of responsible authority and proceeds of crime authority in section 338 of that Act). Responsibility can be transferred between these authorities (see section 315B of that Act).

197  Application of amendments—the Foreign Evidence Act 1994

(1)       The amendments of the Foreign Evidence Act 1994 made by items 195 and 196 of this Schedule apply as set out in this item.

(2)       The amendments apply in relation to proceedings under the Proceeds of Crime Act 2002 started before, at or after the commencement of those items.

(3)       The amendments apply under subitem (2) of this item regardless of whether the conduct giving rise to those proceedings occurred, or is suspected to have occurred, before, at or after the commencement of those items.

International Criminal Court Act 2002

198  Section 4

Insert:

proceeds of crime authority has the same meaning as in the Proceeds of Crime Act.

Note:          Under that Act, the proceeds of crime authority is either the Commissioner of the Australian Federal Police or the DPP (see the definition of proceeds of crime authority in section 338 of that Act).

199  Subsection 82(1)

Omit “the DPP”, substitute “a proceeds of crime authority”.

200  Subsection 82(3)

Omit “the DPP”, substitute “a proceeds of crime authority”.

201  Paragraph 82(5)(b)

Omit “DPP’s”.

202  Subsections 155(2) and 156(1)

Omit “the DPP”, substitute “a proceeds of crime authority”.

203  Subsection 156(2)

Omit “The DPP”, substitute “The proceeds of crime authority”.

204  Paragraph 156(2)(a)

Omit “DPP”, substitute “authority”.

205  Subsection 156(3)

Omit “DPP”, substitute “proceeds of crime authority”.

206  Paragraph 157(2)(a)

Omit “the DPP having applied for the order were a reference to the DPP”, substitute “a proceeds of crime authority having applied for the order were a reference to the authority”.

207  Subsection 158(8)

Omit “DPP”, substitute “proceeds of crime authority authorised under subsection 155(2)”.

208  Subsection 158(9)

Omit “The DPP”, substitute “That proceeds of crime authority”.

209  Application of amendments—the International Criminal Court Act 2002

(1)       The amendments of the International Criminal Court Act 2002 made by items 198 to 208 of this Schedule apply as set out in this item.

(2)       The amendments apply in relation to requests by the ICC (within the meaning of that Act) to the Attorney‑General under that Act made before, at or after the commencement of those items.

(3)       The amendments apply under subitem (2) of this item regardless of whether the conduct giving rise to those requests occurred, or is suspected to have occurred, before, at or after the commencement of those items.

International War Crimes Tribunals Act 1995

210  Section 4

Insert:

proceeds of crime authority has the same meaning as in the Proceeds of Crime Act 2002.

Note:          Under that Act, the proceeds of crime authority is either the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definition of proceeds of crime authority in section 338 of that Act).

211  Subsection 44(1)

Omit “the Director of Public Prosecutions”, substitute “a proceeds of crime authority”.

212  Subsection 45(1)

Omit “If the Director of Public Prosecutions”, substitute “If a proceeds of crime authority”.

213  Subsection 45(1)

Omit “direct the Director of Public Prosecutions:”, substitute “direct the authority:”.

214  Paragraph 46(1A)(a)

Omit “the Director of Public Prosecutions having applied for the order were a reference to the Director of Public Prosecutions”, substitute “a proceeds of crime authority having applied for the order were a reference to the authority”.

215  Subsection 46A(8)

Omit “Director of Public Prosecutions”, substitute “proceeds of crime authority authorised under subsection 45(1)”.

216  Subsection 46A(9)

Omit “The DPP”, substitute “That proceeds of crime authority”.

217  Application of amendments—the International War Crimes Tribunals Act 1995

(1)       The amendments of the International War Crimes Tribunals Act 1995 made by items 210 to 216 of this Schedule apply as set out in this item.

(2)       The amendments apply in relation to requests by a Tribunal to the Attorney‑General under that Act made before, at or after the commencement of those items.

(3)       The amendments apply under subitem (2) of this item regardless of whether the conduct giving rise to those requests occurred, or is suspected to have occurred, before, at or after the commencement of those items.

Mutual Assistance in Criminal Matters Act 1987

218  Subsection 3(1) (definition of DPP)

Repeal the definition.

219  Subsection 3(1)

Insert:

proceeds of crime authority has the same meaning as in the Proceeds of Crime Act.

Note:          Under that Act, the proceeds of crime authority is either the Commissioner of the Australian Federal Police or the Director of Public Prosecutions (see the definition of proceeds of crime authority in section 338 of that Act).

220  Subsections 34(1), (2) and (3) and 34A(1)

Omit “the DPP”, substitute “a proceeds of crime authority”.

221  Subsection 34A(2)

Omit “The DPP”, substitute “The proceeds of crime authority”.

222  Paragraph 34A(2)(a)

Omit “DPP”, substitute “authority”.

223  Subsection 34A(3)

Omit “DPP”, substitute “proceeds of crime authority”.

224  Paragraph 34B(2)(a)

Omit “the DPP”, substitute “a proceeds of crime authority”.

225  Paragraph 34B(2)(b)

Omit “DPP”, substitute “authority”.

226  Subsection 34C(8)

Omit “DPP”, substitute “proceeds of crime authority authorised under section 34”.

227  Subsection 34C(9)

Omit “The DPP”, substitute “That proceeds of crime authority”.

228  Subsection 34G(1)

Omit “DPP”, substitute “proceeds of crime authority authorised under section 34”.

229  Subsection 34G(3)

Omit “the DPP”, substitute “a proceeds of crime authority”.

230  Subsections 34J(1) and 34K(1)

Omit “the DPP”, substitute “a proceeds of crime authority”.

231  Paragraph 34K(3)(b)

Omit “DPP’s”.

232  Paragraph 34M(1)(b)

Omit “DPP”, substitute “proceeds of crime authority authorised under section 34J”.

233  Paragraph 35(a)

Omit “DPP”, substitute “proceeds of crime authority authorised under section 34”.

234  Subsection 35A(1)

Omit “The DPP must give written notice of an application for an order under section 35 in respect of property to”, substitute “A proceeds of crime authority that applies for an order under section 35 in respect of property must give written notice of the application to”.

235  Paragraph 35A(1)(b)

Omit “DPP”, substitute “authority”.

236  Subsection 35A(2)

Omit “DPP”, substitute “proceeds of crime authority”.

237  Section 35E

Omit “by the DPP on behalf of the Commonwealth”, substitute “on behalf of the Commonwealth by the proceeds of crime authority authorised under section 34”.

238  Subsection 35L(2)

Omit “DPP”, substitute “proceeds of crime authority authorised under section 34”.

239  Application of amendments—the Mutual Assistance in Criminal Matters Act 1987

(1)       The amendments of the Mutual Assistance in Criminal Matters Act 1987 made by items 218 to 238 of this Schedule apply as set out in this item.

(2)       The amendments apply in relation to requests by a foreign country to the Attorney‑General under that Act, to foreign orders and to proceedings under that Act that are made, registered (in the case of foreign orders) or started (in the case of proceedings) before, at or after the commencement of those items.

(3)       The amendments apply under subitem (2) of this item regardless of whether the conduct giving rise to those requests or proceedings occurred, or is suspected to have occurred, before, at or after the commencement of those items.

Trade Marks Act 1995

240  Subsection 159(1)

Omit “the Director of Public Prosecutions” (second occurring), substitute “a proceeds of crime authority (or a responsible authority)”.

241  Subsection 159(2) (paragraphs (a) and (b) of the definition of forfeiture order provisions)

Repeal the paragraphs.

242  Application of amendments—the Trade Marks Act 1995

(1)       The amendments of the Trade Marks Act 1995 made by items 240 and 241 of this Schedule apply as set out in this item.

(2)       Subject to subitem (3) of this item, the amendment made by item 240 applies in relation to proceedings for the prosecution of a person in respect of an indictable offence against Part 14 of that Act instituted before, at or after the commencement of that item.

(3)       However, if Divisions 1 and 2 of Part II of the Proceeds of Crime Act 1987 apply immediately before the commencement of items 240 and 241 of this Schedule in relation to proceedings for the prosecution of a person in respect of an indictable offence against Part 14 of the Trade Marks Act 1995 instituted before that commencement, the Divisions continue to apply in relation to the proceedings as if the amendments made by those items had not been made.

(4)       The amendment made by item 241 of this Schedule applies in relation to proceedings for the prosecution of a person in respect of an indictable offence against Part 14 of the Trade Marks Act 1995 instituted at or after the commencement of that item.

(5)       The amendments apply under subitems (2) and (4) of this item regardless of whether the conduct giving rise to those proceedings occurred, or is suspected to have occurred, before, at or after the commencement of items 240 and 241.


 

Part 2Other proceeds of crime amendments

 

Proceeds of Crime Act 2002

243  Subsection 131(1)

After “has paid”, insert “before the application for the order is made”.

Note:       The following heading to subsection 131(1) is inserted “Tax paid before application for order is made”.

244  After subsection 131(1)

Insert:

Tax paid after application for order is made

          (1A)  The court may, if it considers that it is in the interests of justice to do so, reduce the *penalty amount under a *pecuniary penalty order against a person by an amount that, in the court’s opinion, represents the extent to which tax that the person has paid at or after the time the application for the order is made is attributable to the *benefits to which the order relates.

245  Subsection 131(2)

Omit “The tax”, substitute “Tax covered by this section”.

Note:       The following heading to subsection 131(2) is inserted “Tax covered by this section”.

246  Application of amendments—taking tax into account in pecuniary penalty orders

(1)       The amendments of the Proceeds of Crime Act 2002 made by items 243 to 245 of this Schedule apply as set out in this item.

(2)       The amendments apply in relation to pecuniary penalty orders under that Act if the applications for the orders are made at or after the commencement of those items.

(3)       The amendments apply under subitem (2) of this item regardless of whether the conduct giving rise to the applications for the pecuniary penalty orders occurred, or is suspected to have occurred, before, at or after the commencement of those items.

247  Paragraph 202(5)(ea)

Omit “the property of a person”, substitute “property that constitutes part of a person’s *wealth”.

248  Paragraph 202(5)(ea)

Omit “the total value of the person’s *wealth”, substitute “the person’s *total wealth”.

249  Application of amendments—property‑tracking documents

(1)       The amendments of the Proceeds of Crime Act 2002 made by items 247 and 248 of this Schedule apply as set out in this item.

(2)       The amendments apply in relation to production orders under that Act if the applications for the production orders are made at or after the commencement of those items.

(3)       The amendments apply under subitem (2) of this item regardless of whether the conduct giving rise to the applications for the production orders occurred, or is suspected to have occurred, before, at or after the commencement of those items.