THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES PROCEEDS OF CRIME BILL 1987 EXPLANATORY MEMORANDUM

Transcription

1 1987 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES PROCEEDS OF CRIME BILL 1987 EXPLANATORY MEMORANDUM (Circulated by authority of the Honourable Lionel Bowen M.P. Deputy Prime Minister and Attorney-General) 11908/87 Cat. No

2 a I I I Printed by Authority by the Commonwealth Government Printer

3 Proceeds of Crime Bill 1987 Outline The Proceeds of Crime Bill 1987 has five purposes. The principal purpose is to permit a court to grant orders for the freezing and confiscation of property used in, or derived directly or indirectly from, the commission of an indictable offence against a law of the Commonwealth, or of a Territory (other than the Northern Territory). In addition the Bill: provides for the registration in Territory courts of orders for freezing and confiscation of property made under corresponding State laws and which relate to property located in the Territory; provides for the enforcement of foreign freezing and confiscation orders which relate to property in Australia and in respect of which relevant procedures under the Mutual Assistance in Criminal Matters Act 1987 have been complied with; confers on police new powers to facilitate the following of the money trail and to require financial institutions to preserve their records to maintain the money trail; creates new offences of money laundering and organised fraud. Financial Impact While it has not been possible to estimate the cost in bringing confiscation proceedings, and in preserving and realising property the subject of orders under the Bill, it is anticipated that the revenue generated from the minimisation of tax evasion and the confiscation of property under the Bill will more than offset the investigative and legal costs in

4 bringing proceedings and in administering property. Consideration is being given to establishing a specific trust fund for monies generated by this legislation, with a view to the allocation of monies from the fund to law enforcement agencies which have taken part in successful confiscation proceedings. Abbreviation The following abbreviations are used in this Explanatory Memorandum: 4 AFP: Australian Federal Police Bankruptcy Act: Bankruptcy Act 1966 Commissioner: Commissioner of the Australian Federal Police DPP: Director of Public Prosecutions Mutual Assistance Act Mutual Ass~.stance in Criminal Matters Act 1987 ~ I I

5 Notes on Clauses Clause 1: Contains the short title. Clause 2: This clause provides that the Act comes into operation 28 days after it receives Royal Assent. Clause 3: This clause sets out the principal objects of the Bill which are to deprive persons of proceeds and benefits derived from the commission of offences against the laws of the Commonwealth and the Territories. The Bill provides for the forfeiture of property used in connection with the commission of such offences and enables law enforcement authorities to track down the proceeds of crime. Further objects are to enable the registration in Territory Courts of orders for freezing and confiscation of property made under corresponding State laws relating to property in the Territory and to enable the enforcement of such orders in Australia where sought under the Mutual Assistance Act in respect of property in Australia, as well as assisting foreign countries to track down the proceeds of crime derived by persons from the commission of serious offences. Clause 4: This is definitional. Sub clause (2) provides that, for the purposes of the Act, a person is charged as soon as an information is laid against the person whether or not a summons or a warrant of apprehension has been issued.

6 Sub clause (3) extends the meaning of benefit derived by a 2. person to encompass a benefit derived by another person at the first persons request. Sub-clause (4) extends the meaning of property of a person to include property in which the person has the beneficial interest. Clause 5: This clause extends the meaning of conviction for the purposes of the Act. Sub clause (1) provides that a person shall be taken to be convicted of an offence for the purposes of the Act if the person is convicted, either summarily or on indictment, of the offence; the person is found guilty, or the charge is proved but the offender is discharged without conviction; the person is sentenced for another offence (of 4 which the person has not been found guilty) and in passing the sentence the court, with the consent of the person, takes into account the offence in question; or the person absconds in connection with the offence. Sub clause (2) sets out the circumstances in which a convictions, as defined, shall be taken to have been quashed, and sub clause (3) establishes the nexus between the offence and the State whose courts have jurisdiction in relation to confiscation proceedings under the Act. Sub clause (4) provides that, where an absconder is taken to have been convicted of an offence in a particular State, the absconder is to be taken to have been convicted by the Supreme Court in that State and thus all applications in relation to the offence are to be made to the Supreme Court of that State. Sub clause (5) provides that in relation to an absconder a reference to the commission of the offence shall be a reference to the alleged commission of the offence.

7 Sub clause (6) precludes the application of this extended meaning of conviction to foreign serious offences. In such cases the Attorney-General must be satisfied that a person has been convicted. 3. Clause 6: This clause defines an absconder for the purposes of the Act except clause 17. A person is to be treated as having absconded in relation to an offence where an information has been laid alleging that the person committed the offence and a warrant has been issued for the person s arrest and, either the person dies without the warrant having been executed or, at the end of a period 6 months after the issue of the warrant, the person cannot be found or is for some other reason not amenable to justice and extradition proceedings are not on foot. A person is also an absconder if, at the end of the 6 month period, the person is, by reason of being outside Australia, not amenable to justice and extradition proceedings are on foot and subsequently those proceedings are terminated without an extradition order being made. Before making a confiscation order the court is required (by clause 17) to be satisfied that the person has absconded and committed the offence. Clause 7: Clause 7 defines serious offence for the purposes of the Act. A serious offence is one which gives rise to statutory forfeiture under clause 30 and in respect of which a monitoring order may be sought under clause 73. Sub clause (1) provides that a serious offence means a serious narcotics offence, an organised fraud offence or a money laundering offence in relation to the proceeds of either a serious narcotics offence or an organised fraud offence and includes an ancillary offence in relation to any of those offences.

8 Sub clause (2) contains a number of definitions including a definition of a serious narcotics offence which is defined to 4. include a range of offences against Commonwealth or Territory law relating to the production, possession, supply, importation or export of a traffickable quantity of a narcotic substance. For ease of reference and to ensure uniformity the terms narcotic substance (defined in sub clause 4(1)) and traffickable quantity have been defined by reference to their meaning in the Customs Act 1901 subject to variation, by regulation in the case of narcotic substance, to take into account Territory laws. Clause 8: This clause defines related offences. The purpose of this I concept is to ensure that restraining orders continue to run where relatively minor changes are made to the charges which have been laid against a person, or where a person is convicted other than of the offence charged, for example, pursuant to an alternative verdict provision. This clause states that two offences are related to one another if the elements of the two offences are substantially the same acts or omissions. Clause 9: I This clause defines the term dealing with property to include the making of a payment to a person in reduction of a debt, the making of a gift to a person and removing property from Australia. This definition is relevant to determining the range of conduct precluded by a restraining order under clause 43 and also to determining what constitutes a breach of a restraining order under clause 52.

9 5. Clause 10: Clause 10 prescribes the court which has jurisdiction to determine an application for a confiscation order in relation to a particular offence. Sub clause (1) provides thatthe Supreme Court has sole jurisdication to determine applications for a confiscation order where that court convicted the person of the offence. Sub clause (2) provides that, where a person is convicted before a court, other than a Supreme Court, the court before which the person was convicted and the Supreme Court of that State are both able to receive and determine applications for a confiscation order for that offence. Clause 98 limits the orders which may be made by certain courts. Clause 11: This clause provides that the Act binds the Crown in right of the Commonwealth, of each of the States, the Northern Territory and Norfolk Island but does not render the Crown liable to be prosecuted for an offence. Clause 12: This clause provides that the Act applies throughout Australia and outside Australia, including in the External Territories. Clause 13: This clause provides that the Act applies to offences whether committed before or after the commencement of the Act. However, Parts II and III of the Act apply only to offences in respect of which a person is convicted after the commencement of the Act, unless they apply in relation to interstate offences or foreign offences, in which case the relevant conviction can predate the commencement of this Act.

10 6. Clause 14: Clause 14 deals with the circumstances in which an application for a confiscation order may be made. Sub-clause (1) provides that the DPP may, where a person is convicted of an indictable offence, apply to the appropriate court for an order for the forfeiture of tainted property, or for a pecuniary penalty order in respect of benefits derived by the offender from the commission of the offence, or both. Sub clause (2) requires the DPP to make an application for a confiscation order within six months of the date on which the person is taken to have 4 been convicted of the relevant offence Sub clause (3) precludes the DPP from making an application for the forfeiture of property in respect of a person s I conviction of an offence if an application to confiscate that property has previously been made under this or another law and has been finally determined by a court. Only where the application has been dismissed, or withdrawn, for purely technical reasons without a determination of the merits of the application may the DPP re apply in respect of the same property. Sub clause (4) makes similar provision in respect of an application for a pecuniary penalty order. Pursuant to sub clause (5) the court cannot grant leave unless I it is satisfied that the tainted property or benefits to which the application relates was identified only after the first application was determined, that the necessary evidence only became available~after that time or the court is otherwise I satisfied that it is in the interests of justice to grant leave. The purpose of this restriction is to prevent the 6 month limitation period for applications being disregarded in relation to property which ought to have been included in, or subsequently added to, the original application, so that people are not repeatedly exposed to confiscation proceedings and confiscation matters are finally determined as soon as possible after conviction.

11 Sub clause (6) permits an application to be lodged in respect of more than one offence. Sub clause (7) permits an application for a pecuniary penalty order to be made even if the case is one to which statutory forfeiture applies. 7. Clause 15: Clause 15 requires the DPP to give notice of the making of a confiscation application to the person whose conviction gives rise to the application and to every person who the DPP believes has an interest in property that is affected by the application. A court has the power to direct the DPP to give notice to a specified class of person in the manner and within the time specified by the court at any time prior to the final determination of the application. Every person who claims an interest in the property may appear and adduce evidence at the hearing of the application. Sub clause (2) provides that where an application is made for a pecuniary penalty order, the DPP must give notice to the person convicted of the relevant offence and that person may appear and adduce evidence at the hearing. Clause 16: This clause enables an application for a confiscation order to be amended whether to increase the property or the benefit which is covered by the application or not. Sub clause (1) provides that the application for a confiscation order may be amended by the court on the application of, or with the consent of the DPP. Sub-clause (2) precludes the court from amending the application to include additional property or additional benefits unless the court is satisfied that the property or benefit wasnot reasonably capable of identification at the time the application was made, or that the evidence necessary

12 to support the application has only subsequently become available. The purpose of this restriction is to prevent the 6 month limitation period for applications being disregarded in relation to property which ought to have been included in the original application. 8. Sub clause (3) requires the DPP to give notice of the application to amend a forfeiture order, where the amendment would have the effect of including additional property, to anybody who the DPP has reasonable grounds to believe has an interest in that additional property. Any person who claims an interest in the additional property may appear and adduce evidence at the hearing of the application. Sub clause (4) requires the DPP to give the offender notice of an application to include additional benefit in the applicition for the pecuniary penalty order. Clause 17: This clause imposes special requirements on a court when dealing with an application for confiscation in respect of a person who is an absconder and who is deemed to have been convicted of an offence. This clause precludes the court from making a confiscation order against an absconder unless the court is satisfied, on the balance of probabilities, that the person has absconded and either the person has been committed to stand trial for that offence or is satisfied, having regard to all the evidence before it, that a reasonable jury, properly instructed, could lawfully find the person guilty of the offence. Clause 18: This clause is intended to expedite confiscation proceedings and to avoid the need to re-hear evidence which was adduced in

13 9. / the criminal proceedings. Under sub clause (1) the court is entitled to have regard, in determining the application for the confiscation order, to the transcript of any proceedings against the person for the offence. Sub clause (3) permits a court to have regard to the transcript of proceedings for the offence referred to in paragraph 5(1)(c). Under sub clause (2) where the court has not yet passed sentence on the person for the offence the court may, if it considers reasonable to do so, defer passing sentence until it has determined the application for the confiscation order. Clause 19: Sub clause (1) gives the court a discretion to order property forfeited to the Commonwealth where an application for forfeiture has been made in respect of the property and the court is satisfied that it is tainted property. Sub clause (2) requires the court to determine the value of any forfeited property, other than money, at the time it makes a confiscation order. Sub clause (3) permits the court to have regard to, any genuine hardship (as opposed to a reduction in the standard of living) which would be likely to be caused by a confiscation order, and the use that is ordinarily made of property, in determining whether to exercise its discretion to make a forfeiture order. Sub clause (4) permits the court to take the gravity of the offence into account when determining whether to order the forfeiture of property which is tainted by virtue of having been used or involved in the commission of the offence. For example it may be established that a farm was used for storing drugs but, having regard to the type and quantity of drugs involved and to the fact that the farm was not solely or principally used for drug storage but was also a viable farming enterprise, the court may exercise its discretion and refuse to order forfeiture of the farm.

14 10. Under sub clause (5) a court that makes a forfeiture order may, where it is satisfied that it would not be contrary to the public interest, and that there is no other reason why the property should not be transferred to its previous owner, declare the nature, extent and value of the person s interest and declare that the forfeiture order may, to the extent of that interest, be discharged upon payment as provided by clause 33. Unless there is something inherent in the nature of the property that is forfeited or some other factor that makes it undesirable for it to be returned to the community as a whole, or to the previous owner, the court may permit the previous owner to buy his interest back from the Commonwealth. Sub clause (6) provides an evidentiary aid to establishing that property was used, or involved, in the commission of an offence. Under that sub clause, where the DPP applies for a forfeiture order in reliance on a person s conviction and evidence is given at the hearing of an application for a forfeiture order that the property was in the person s possession at the time of, or immediately after, the commission of the offence, and no evidence to the contrary is adduced the court shall presume the property to have been so used. However, if evidence to the contrary is led, the court cannot make a forfeiture order unless it is satisfied, on the balance of probabilities, that the property was used in, or in connection with, the commission of the offence. Under sub clauses (7) & (8) a court that makes a forfeiture order has power to give all directions necessary or convenient I to give effect to the order including the power to direct an officer to obtain documents necessary to transfer property. Clause 20: This clause sets out the means by which the Commonwealth acquires title to property that is the subject of the forfeiture order and limits the Minister s power to dispose of forfeited property while the order is the subject of a possible appeal.

15 11. Sub clause (1) provides that non registrable property vests absolutely in the Commonwealth upon the making of a forfeiture order. Sub clause (2) provides that, in relation to registrable property which is the subject of a forfeiture order, the property vests in equity in the Commonwealth but not at law until the registration requirements have been complied with. The Minister has power, on behalf of the Commonwealth, to do anything necessary to obtain the registration of the Commonwealth as owner, including executing any instrument required to be executed by the person transferring an interest of that kind to the Commonwealth. Sub clause (3) precludes dealings with the property by the Commonwealth until the expiration of both the appeal period in relation to the conviction and the appeal period in relation to the forfeiture order. At the end of the expiration of those appeal periods, if the order has not been discharged, the property may be disposed of or otherwise dealt with at the direction of the Minister. Sub clause (4) provides that the Minister may give directions for disposing of property in accordance with the provisions of a law. Sub clause (5) defines appeal period in relation to a person who is taken to have been convicted of an offence by virtue of paragraph 5(1)(b) and 5(l)(c) of the Act. Sub clause (6) defines appeal period in relation to a. decision of the court as either the period allowed for the lodging of the appeals or, if an appeal has been lodged within that time, when the appeal lapses or is finally determined. Sub clause (6) also defines relevant time for the purposes of this section. Clause 21: This clause deals with the procedure by which third parties whose property interests are affected by forfeiture orders can seek relief Sub clause (1) enables a third party whose

16 12. interest may be affected by a forfeiture order to seek an order under sub clause (6) exempting his property from the operation of the order. It is desirable, for the effective operation of the legislation, that property interests be determined at the earliest possible time and accordingly sub clause (1) enables a third party to establish his or her innocent interest before a forfeiture order is made. Sub clause (2) enables parties with an interest in forfeited property to lodge an application to establish their innocence in certain circumstances. Sub clause (3) precludes a person who had notice of the application for the forfeiture order or who appeared at the hearing of the application, from making an application under this section without special leave of the court. 4 Sub clause (4) enables the court to grant a person leave to apply where it is satisfied that there are special grounds for granting that leave. Sub clause (5) provides that special grounds exist where the court is satisfied that the person did not appear at the hearing for good reason although the person had notice of the hearing, or that particular evidence proposed to be produced by the person was not available at the time of the hearing of the application for the forfeiture 4 order. These provisions are in furtherance of the object of clarifying property interests and confiscation of such interests at the earliest possible time. Sub-clause (6) enables the court to exempt property from the operation of a forfeiture order, or to revoke the operation of a forfeiture order in respect of property, if it is satisfied that the applicant was not in any way involved in the commission of the offence and, where the interest was acquired at the time of, or after, the commission of the offence, that it was acquired for sufficient consideration and without knowledge, or in circumstances that would not arouse a

17 13. reasonable suspicion, that the property was tainted property. In such a case, the court must declare the nature, extent and value of the applicant s interest and direct the Commonwealth to either transfer the interest back to the applicant or pay the applicant an amount equal to the value of the applicant s interest. Sub clause (7) requires an application under this section to be made within six months of the making of the forfeiture order. Sub clause (8) permits the court to grant leave to make an application outside the six months period if the court is satisfied that the delay was not due to neglect by the person. Sub clause (9) requires notice to be given to the DPP and the Minister of the making of the application and sub clause (10) provides that the DPP is a party to any~ proceedings under this section and the Minister may intervene in such proceedings. Clause 22: This section provides that a forfeiture order is discharged if the conviction upon which it is based is quashed or the forfeiture order is discharged on appeal. Sub clause (2) provides that where a forfeiture order is discharged because, the conviction is quashed or an appeal against the making of the forfeiture order is upheld, any person who had an interest in property before the making of the forfeiture order may apply, in writing, to the Minister to have the interest transferred back. The DPP is required to notify in writing, as soon as possible after the discharge of the forfeiture order, any person believed to have had an interest in the property immediately before forfeiture or those persons or class of person that a court requests be notified. The notice must inform the person of his or her right to reclaim the property. Under sub clause (4) the Minister is required to arrange for the interest to be transferred back to the person

18 14. or to pay the person an amount equal to the value of the interest. Sub clause (5) enables the Minister to do anything necessary or convenient to effect the transfer of property back to the person in whom it was previously vested. Clause 23: This clause provides that the Division of the Bill dealing with forfeiture applies to foreign forfeiture orders which have been registered in Australia but that clauses 21 and 22 and sub clauses 19(5) and 20(3), (4), (5) and (6) are not applicable to registered foreign forfeiture orders. Sub clause (2) provides that when a foreign forfeiture order has been registered, the property may be disposed of, or 4 otherwise dealt with in accordance with a direction of the Minister. Clause 24: This clause provides that pecuniary penalty orders may apply to any property that comes into the possession, or under the control, of a person, in Australia or elsewhere, before or after the commencement of the Act. However, as clause 11 provides that the legislation applies in the case of Australian offences, only to offences committed after the commencement of the Act, the effect of this clause is to ensure that prepayments made before the commencement of the Act may be taken into account when assessing benefits derived from of fences committed after commencement. Clause 25: This clause precludes the court from making a pecuniary penalty order in respect of a person convicted of a serious offence until after the end of a period of six months

19 15. commencing on the day of the conviction. The purpose of this is to preclude a court from making a pecuniary penalty order until the effect of the statutory forfeiture pursuant to clause 30 has been assessed. This provision does not apply to an application for a pecuniary penalty order against a person who is taken to have been convicted of a serious offence by reason of absconding. Clause 26: Sub clause (1) enables the court, if satisfied that a person derived benefits from the commission of the offence, to assess the value of the benefits in accordance with clause 27 and to order the person to pay the Commonwealth a pecuniary penalty equal to the penalty amount. Sub-clause (2) defines penalty amount to be the value of the benefits assessed under clause 27. Sub-clause (3) requires the value of any property which has been forfeited, or may become the subject of a forfeiture order, to be deducted from the penalty amount Any taxes that have been paid under Commonwealth, State, Territory or Foreign law and which in the opinion of the court are attributable in whole or part to the benefits being assessed may alsq be deducted from the penalty amount: sub clause (4). Sub clause (5) gives the court a discretion to reduce the penalty amount by any amount payable by the person by way of fine, restitution or compensation in relation to the offence. Sub-clause (6) permits a court, on the application of the DPP, to vary a pecuniary penalty order by increasing the penalty amount if the original pecuniary penalty order was reduced by the value of property the subject of a forfeiture order, or a proposed forfeiture order, and either the proposed forfeiture Qrder was not made, or the forfeiture or forteiture order was discharged on appeal. Sub-clause (7) makes similar provision where tax taken into account is subsequently re paid or refunded.

20 16. Sub clause (8) provides that a pecuniary penalty order gives rise to a civil debt due by the person to the Commonwealth. Sub-clause (9) provides that a pecuniary penalty order may be enforced as an order of the court made in civil proceedings for the recovery of a debt due by the person to the Commonwealth and the debt arising shall be taken to be a judgment debt. Clause 27: This clause outlines the method of assessing a pecuniary penalty. Sub clause (1) is definitional. Sub clause (2) provides that, in assessing the value of the benefit derived bya person from the commission of an offence, the court shall have regard to the evidence before it concerning all, or any, of the following matters: the value of the property that came into the possession or under the control of the defendant, or another person at the request or direction of the defendant, by reason of the commission of the offence or any of the offences; the value of any other benefits provided to the defendant by reason of the commission of the offence; in relation to offences relating to narcotic substances the market value at the time of the offence of similar or substantially similar narcotic substances; the amount that was, at the time of the offence ordinarily paid for a substantially similar act or thing; the value of the defendant s property before and after the commission of the offence, or where more than one offence is involved, before, during and after the offence period in question and the expenditure and income of the person before and after the commission of the offence, or where the application relates to more then one offence, before during and after the offence period. Sub-clause (3) enables a court, in quantifying the value of a benefit, to treat its value as the value it would have had had it been derived at the time of the valuation. 4 4

21 17. Sub section (4) creates a presumption that a benefit has been derived from an offence where the defendant s assets after the commission of the offence exceed the value of his or her assets before the commission of the offence. The court may treat the value of the benefits derived from the offence as not less than the amount of the excess unless the defendant satisfies the court, on the balance of probabilities, that the whole of the excess or part of the excess was not derived, directly or indirectly, from the commission of the offence. Sub clause (5) creates a similar presumption in relation to two or more offences where there is an excess of property during or after the beginning of the offence period. Sub clause (6) deals with pecuniary penalty orders for serious offences and provides that all the defendant s property at the time the application is made, and all of his property in the previous five years (or during the period commencing with the commission of the offence, whichever is the shorter), is to be treated as if it were derived from the commission of the offence unless the defendant proves the contrary on the balance of probabilities. Sub-clause (7) prevents a person from being deprived of the benefits derived from an offence where a pecuniary penalty order has already been made to confiscate that benefit under a law of the Commonwealth or a corresponding law of a State. Sub clause (8) prevents a person from offsetting, against benefits derived from the commission of an offence, any costs incurred in committing that offence. Sub-clause (9) provides that where property vests in the Official Trustee by reason of the person s bankruptcy, the property shall be deemed to continue to be the person~s property. Sub clause (10) states that the evidence of a police officer or of a customs officer, as to the market value of a narcotic substance, or the usual payment for certain services, is admissible and constitutes prima facie evidence of the matters testified to.

22 18. Clause 28: Sub clause (1) enables a court to treat as property of the defendant (for the purposes of assessing benefit) any property which it is satisfied has been the subject of a sham transaction designed to conceal the origin of the property or to put the property outside the ambit of the Act. Sub clause (2) sets out some of the matters to which the court may have regard in determining whether or not the defendant has effective control of property. Sub clause (3) enables the court to make an order, on the application of the DPP, making property under the defendant s control available to satisfy the pecuniary penalty order. Sub-clause (4) enables the pecuniary penalty order to be enforced against any property declared to be available to satisfy the order and enables a restraining order to be made in respect of that property. Sub clause (5) requires the DPP to give notice of an application for an order under sub-clause (3) to any person whom the DPP has reason to believe may have an interest in that property and such people may appear and adduce evidence at the hearing of matters relevant to whether the court should make an order under sub clause (1). Clause 29: This clause ensures that in respect of a registered foreign pecuniary penalty order the debt owing is reduced by any amounts paid in satisfaction of the order. in Australia or overseas. Clause 30: This clause sets out special provisions relating to forfeiture where the defendant has been convicted of a serious 4

23 19. offence. Where a person other than an absconder has been convicted of a serious offence all property which is the subject of a restraining order six months after the date of the conviction is forfeited unless it is shown that the property was lawfully derived. Sub-clause (1) sets out the conditions precedent to forfeiture. These are: that a person has been convicted of a serious offence other than by virtue of his being an absconder; that restraining orders have been made in respect of property and those restraining orders are not made in respect of property controlled but not owned by the defendant (sub clause 44(7)) or the subject of a declaration under sub clause 48(4) (ie that the property is not to be forfeited but is to be available to satisfy any pecuniary penalty order that may be made); and that the restraining order is in force at the time of forfeiture, namely six months after the date on which the person was convicted of the offence. Sub clauses (2) to (7) provide for the vesting of property in, and the realisation of property by, the Commonwealth. Sub clauses (8) & (9) define appeal period for the purposes of the clause. Clause 31: Clause 31 provides for the recovery of property which has been forfeited under clause 30. Sub clause (1) enables a person who claims an interest in property to apply to the court which made the relevant restraining order for an order for the return of the interest in the property or payment of its value. Sub clauses (2) and (3) provide that application must be brought within six months after forfeiture unless the court is ~satisfied that the failure to apply in time was not due to neglect on the part of the applicant. Sub-clauses (4) & (5)

24 20. preclude a court from making an order in favour of a person who had notice of the application for, or the making of the restraining order unless it is satisfied that the applicant was not negligent in failing to seek to have the property excluded from the restraining order. This is to ensure that, where possible, the restraining order itself is challenged and interests in property asserted before forfeiture. Sub clause (6) enables the court to make an order declaring the nature, extent and valueof the applicant s interest in the property and to direct the Commonwealth to transfer the interest back to the applicant or to pay the applicant an amount equal to the value of that interest. The court may make an order where it is satisfied that the applicant was not in any way involved in the commission of the relevant serious offence and (if the property was acquired during or after the commission of the offence) that the interest in property was obtained for sufficient consideration and without knowledge, or grounds for suspicion, that the property was tainted; or it is satisfied that the property is not tainted property and the applicant s interest was lawfully acquired Sub clause (7) enables a person to apply to the court for an order permitting the person to buy back property (which is lawfully the subject of forfeiture under clause 30) on payment to the Commonwealth an amount equal to value of that property. Sub clause (8) defines the term relevant restraining order. 4 4 I Clause 32: This clause requires the DPP to give any person with an interest in property forfeited under clause 30 notice of the fact that the relevant conviction has been quashed and that the person (including the person whose conviction is quashed) may apply to the Minister for the return of forfeited property.

25 21. Sub clauses (3) and (4) require the Minister to transfer that interest back to the applicant or to pay the applicant an amount equal to its value. Clause 33: This clause enables persons who previously had an interest in forfeited property to buy that interest back from the Commonwealth by paying the Commonwealth an amount equal to its value. Sub clause (1) provides that where a court has made a forfeiture order and has also made an order permitting the person to buy his interest in the property back under sub clause 19(5) and the person pays the Commonwealth the value of the property, the forfeiture order is discharged in respect of that interest. Sub clause (2) makes similar provisions in relation to property that was the subject of forfeiture under clause 30 and the person is permitted under sub-clause 31(7) to buy back that property, Sub clauses (3) and (4) enable the Minister to transfer back an interest which has been forfeited where the forfeiture has been discharged by payment of the interest s value. Clause 34: Clause 34 enables a person who has had an interest in forfeited property returned to him (either as a result of an order of the Court or as a result of a buy-back procedure) to purchase other interests in the property which remain forfeited if the previous owner of that interest raises no objection. When a person proposes to buy out other interests he must serve a notice on each person who had previously held an interest in that property. Where a person served with the notice has not, within 21 days, lodged a written objection to the purchase with the Minister, the proposed purchaser may purchase that interest from the Commonwealth.

26 22. Clause 35: This clause sets out an exhaustive list of the circumstances in which searches of persons or searches of land or premises may be conducted and tainted property seized. Sub clause (1) sets out the circumstances in which a police officer may search a person. Sub-clause (2) sets out the circumstances in which a police officer may enter upon land, or premises to search for and seize tainted property. Sub-clause (3) enables a police officer who conducts a lawful search of the person to also search the clothing being worn by the person and any property in, or apparently in, the person s immediate control. Sub-clause (4) precludes body cavity searches pursuant to these provisions. Clause 36: This clause deals with procedures for obtaining search warrants. Sub clause (1) enables a police officer who has reasonable grounds for suspecting that there is tainted property of a specified kind on a person, in the clothing being worn by a person, orin an~rproperty in a person s immediate control to lay an information on oath setting out those grounds before a magistrate and to apply for the issue of a warrant to search the person. Sub clause (2) enables a magistrate to issue a warrant authorising a police officer to search a person for specified tainted property and to seize that if property found in the course of the search. Sub clauses (3) and (4) make similar provision for the application and issue of a warrant to search premises or land. Sub clauses (5) and (6) preclude a magistrate from issuing a warrant unless all further information he or she requires has been furnished to him or her concerning the grounds on which 4

27 23. the warrant is being sought and the magistrate is satisfied that there are reasonable grounds for issuing the warrant. Where a warrant is sought before charges have been laid the Magistrate must also be satisfied that an information will be laid within 48 hours. Sub-clause (7) requires awarrant issued under either sub clause (2) or (4) to state the purpose for which it is issued (including a reference to the nature of the offence in respect of which the property the subject of the warrant is tainted property), a description of the type of property authorised to be seized and the time at which the warrant ceases to have effect. Sub clause (8) requires a warrant issued under sub-clause (4) to specify the times during which entry is authorised. Sub clause (9) allows a police officer to seize anything found, in the course of searching for tainted property, which the police officer believes on reasonable grounds to be tainted property in relation to that offence but not of the kind specified in the warrant or tainted property in relation to another indictable offence or which may afford evidence of an offence and which it is necessary to seize to prevent its concealment, loss or destruction, or its continued use in committing, continuing or repeating that offence or the other offence. Sub clause (10) provides that a police officer, acting in accordance with a warrant, may remove or require a person to remove any of the clothing of the person if the removal is necessary and reasonable for the effective search of the person. Sub clause (11) requires a person to be searched by a person of the same sex. Clause 37: This clause enables a police officer, who considers it

28 24. necessary to do so because of the urgency of the circumstances, to make an application for a search warrant by telephone. However, sub clause (2) requires the officer to prepare an information before making the application although it may be sworn subsequently. Sub clauses (3) and (4) provide the procedure to be followed by the magistrate. Where such an application is made and granted, a form of warrant completed by the police officer is, if it is in accordance with the terms of the warrant made out and signed by the magistrate, authority for any search, entry or seizure authorised by a magistrate s warrant sub clauses (6) and (7). The police officer is required to promptly forward to the magistrate the form of warrant prepared by him and the relevant sworn information sub clause (5). 4 Sub clause 8 provided that unless the warrant signed by the magistrate is produced in proceedings the court shall assume, unless the contrary is proved, that the search, entry or seizure was not authorised by a warrant. Sub clause (9) requires a magistrate, as opposed to a justice of the peace, to issue a telephone search warrant. Clause 38: This clause provides for searches in emergencies. Sub-clause (1) authorises a police officer to conduct a search of a person, land or premises on or in which the police officer believes on reasonable grounds that taintedproperty is situated if the police officer also believes on reasonable grounds that it is necessary to do so in order to prevent the concealment, loss or destruction of the tainted property and the search, entry or seizure is made in circumstances of such seriousness and urgencyas to require and justify immediate search and entry without a warrant. 4

29 25. Sub clause (2) ensures that emergency searches are only conducted where an information has been laid in respect of the offence in relation to which the property sought is tainted property. Sub clause (3) requires that a search of a person be carried out by a person of the same sex if it is practicable in the circumstances for this to be done. Clause 39: This clause requires the Commissioner, or in appropriate cases the Chairman of the NationalCrime Authority, to arrange for seized property to be retained and preserved until it is dealt with in accordance with another provision of the Act. Clause 40: This clause deals with the return of seized property. Sub clause (1) enables a person to apply for an order that seized property (other than property that may afford evidence of the commission of an offence) be returned to him. Sub clause (2) provides that the court may, if it is satisfied that the person is entitled to possession of the property, that the property is not tainted property and also that the defendant has no interest in the property, order the responsible custodian to return the property. The responsible custodian must arrange for the order to be complied with. Sub clause (3) requires the responsible custodian to return property seized before an information had been laid if an information has not been laid in respect of the relevant offence within 48 hours of the seizure of that property. Sub clause (4) requires the responsible custodian to return property 14 days after seizure unless a forfeiture order has been made in respect of the property or sub clause (5) applies.

30 26. Sub clause (5) provides that, where property has been seized and a restraining order is made in relation to the property before the responsible custodian is required to return the property, the responsible custodian shall deal with the property in accordance with the order. If the restraining order directs the Official Trustee to take custody of theproperty, the responsible custodian must arrange for the property to be given to the Official Trustee. If the court makes an order under sub-section (6) the responsible custodian may retain the property until it is dealt with in accordance with another provision of the Act. In any other case the responsible custodian must return the property. Sub clause (6) enables the responsible custodian to apply to the court for permission to retain property which he requires as evidence of the commission of the relevant offence or of any other offence. Sub clause (7) provides that a witness cannot be required to answer a question or produce documents if the court is satisfied that the giving of such evidence may prejudice the investigation or prosecution of a person for an offence. Sub clause (8) requires the responsible custodian to arrange for the return of seized property if an application for a restraining order or a forfeiture order in respect of the property is refused. Sub clause (9) requires the responsible custodian to deal with seized property, which becomes the subject of a forfeiture order while it is in his possession, in accordance with that order. Sub-clause (10) is definitional. 4 4 Clause 41: This clause deals with the issue of search warrants in a Territory in relation to property which is taintedproperty in respect of an interstate indictable offence. Sub clause (1) provides that the Division (other than clause 40 which deals with the return of seized property) applies to the issue of

31 27. search warrants in a Territory as if a reference to an offence included an interstate indictable offence and tainted property included property which is tainted in respect of an interstate indictable offence. Sub clause (2) sets out special requirements for property which is seized in relation to an interstate indictable offence. If, seven days after the seizure of the property, no one has been charged with an interstate indictable offence and an application for a interstate forfeiture order has not been made; or if a person has been convicted of the interstate indictable offence but no application for confiscation has been made six months after the date of conviction; or if a person has been charged with the interstate indictable offence and has been discharged or acquitted, the Commissioner must return the property to the person from whom it was seized. The Commissioner must also give effect to an order of the court of the State in which the offence is being dealt with which directs the return of the seized property or directs that the person be allowed access to the property. Clause 42: This clause enables searches and seizures to be made in respect of overseas offences pursuant to a request under the mutual assistance legislation. Sub clause (1) sets out the circumstances in which the warrant may be applied for and omits certain provisions relating to search warrants in respect of local offences, for which special provision is made in respect to overseas offences. Sub clause (2) permits a police officer executing a warrant to seize, in relation to the overseas offence, other property he believes on reasonable grounds to be tainted though not specified, property which is tainted for another foreign serious offence in respect of which a warrant has been issued,

32 28. property relevant to a foreign investigation or to foreign proceedings and property which will afford evidence of a local offence. To do any of the foregoing, the police officers must additionally believe on reasonable grounds that such seizure is necessary to prevent either the concealment, loss or destruction of that property or its use in the commission, continuation or repetition of the offence. Sub clause (3) permits a person to seek an order from the Supreme Court that the property be returned. Sub clause (4) sets out the factors the Supreme Court must take into account in determining whether to order the return of the property. These factors are whether the applicant is entitled to possession of the property, whether the property is in fact tainted in relation to the foreign serious offence and whether the alleged overseas offender has, in fact, an interest in the property. Where the Court makes such an order, the Commissioner must return the property. Sub clause (5) requires the Commissioner, subject to sub clause (6), to return seized property if a foreign restraining order or foreign forfeiture order has not been registered in an Australian Court within 30 days and a restraining order has not been made under the Act. Sub clauses (6) & (7) require the Commissioner, if a foreign restraining order is registered or a restraining order is made under the Act, in accordance with an order of the Court to either give the property to the Official Trustee or to retain it in accordance with the request under the Mutual Assistance Act. Sub clause (8) requires the Commissioner to deal with seized property still in his possession when a foreign forfeiture order is registered in Australia in accordance with the terms of that order. Sub clause (9) provides that property seized pursuant to the warrant because it may afford evidence of the 4 4 4