Criminal Proceeds Confiscation Act 2002 (Qld)

Criminal Proceeds Confiscation Act 2002 An Act to provide for the confiscation of the proceeds of crime and property connected to persons convicted of particular serious drug offences, the payment to the State of unexplained wealth, and for other purposes Chapter 1 Introduction 1 Short title This Act may be cited as the Criminal Proceeds Confiscation Act 2002. 2 Commencement (1) This Act, other than the following provisions, commences on 1 January 2003— (a) chapter 12, part 4; (b) section 283 and schedule 3, items 49 and 50; (c) section 339 and schedule 4, to the extent the schedule amends the Trustee Companies Act 1968. (2) Schedule 3, items 49 and 50 are taken to have commenced on 1 January 2002. (3) The following provisions commence on assent— (a) chapter 12, part 4; (b) section 283; (c) section 339 and schedule 4, to the extent the schedule amends the Trustee Companies Act 1968. 3 Definitions The dictionary in schedule 6 defines particular terms used in this Act. 4 Objects (1) The main object of this Act is to remove the financial gain and increase the financial loss associated with illegal activity, whether or not a particular person is convicted of an offence because of the activity. (2) It is also an important object of this Act— (a) to deprive persons of the following— (i) illegally acquired property, tainted property and benefits derived from the commission of offences; (ii) the benefits derived from contracts about confiscation offences; (iii) wealth that persons can not satisfy a court was lawfully acquired; and (b) to deter persons from committing serious criminal offences, including by increasing the financial risk associated with committing serious criminal offences; and (c) to prevent the reinvestment of financial gain from illegal activity in further illegal activity; and (d) to assist law enforcement agencies to effectively trace— (i) property acquired by persons who engage in illegal activity; and (ii) tainted property; and (iii) benefits derived from the commission of offences; and (iv) amounts of unexplained wealth; and (e) to forfeit to the State property of, or associated with, persons who commit qualifying offences, and against whom serious drug offender confiscation orders are made, in recognition of the impact of qualifying offences on the community and the justice system; and (f) to ensure orders of other States restraining or forfeiting property under corresponding laws may be enforced in Queensland; and (g) to protect property honestly acquired for sufficient consideration by persons innocent of illegal activity from forfeiture and other orders affecting property. (3) This Act provides for 3 separate schemes to achieve its objects. (4) The scheme in chapter 2 does not depend on a charge or conviction and is administered by the commission. (5) The scheme in chapter 2A relates to the charge or conviction of particular serious offences involving drugs and is administered by the commission. (6) The scheme in chapter 3 relies on a person being charged and convicted (as defined in this Act) of a confiscation offence and is administered by the DPP. (7) Despite the similarities between the schemes, each is separate and none of the schemes are to be construed as limiting either of the other schemes, unless this Act otherwise expressly provides. 5 Act binds State (1) This Act binds all persons, including the State and, as far as the legislative power of Parliament permits, the Commonwealth and the other States. (2) Nothing in this Act makes the State, the Commonwealth or the other States liable to be prosecuted for an offence. 5A Territorial application of Act (1) This Act applies both within and outside Queensland. (2) This Act applies outside Queensland to the full extent of the extraterritorial legislative power of the Parliament. 6 Notes A note in the text of this Act is part of this Act. 7 Examples in sch 1 (1) An example in schedule 1, part 1 is an example of the practical operation of the application of the definition illegally acquired property. Note— For the definition, see section 22. The examples apply in the same way to the practical operation of the definition serious crime derived property. (2) An example in schedule 1, part 2 is an example of the practical operation of chapter 2, part 5. (3) An example in schedule 1, part 3 is an example of the practical operation of the application of the definition tainted property. Note— For the definition, see section 104. (4) An example in schedule 1, part 4 is an example of the practical operation of chapter 3, part 7, division 3. 8 Proceedings are civil, not criminal (1) This section applies to a proceeding under this Act other than a prosecution for an offence against this Act. (2) The proceeding is not a criminal proceeding. (3) Questions of fact in the proceeding must be decided on the balance of probabilities. (4) The rules of evidence applying in civil proceedings apply to the proceeding. (5) The rules of construction applying only to the criminal law do not apply in the interpretation of this Act for the proceeding. (6) The Uniform Civil Procedure Rules 1999, to the extent that they are not inconsistent with this Act, apply to the proceeding. 9 Orders under this Act not a sentence An order under this Act requiring the payment of an amount or imposing a penalty, other than for a conviction for an offence against this Act, or restraining or forfeiting property, is not a punishment or sentence for any offence. 10 Operation of other laws not affected Nothing in this Act limits or restricts the operation of any other law providing for the forfeiture of property. 11 Interstate operation of particular orders (1) For the purpose of enabling a restraining order, a forfeiture order or a serious drug offender confiscation order to be registered under the corresponding law of another State, the order may be expressed to apply to property in that State. (2) An order mentioned in subsection (1) does not apply to property in another State, unless— (a) a corresponding law of the other State provides that the order has effect in the State after registration under that law; or (b) the property was movable property and was located in Queensland or another State with a corresponding law when the order took effect. 12 Proceedings by the State and meaning of appropriate officer (1) If the State may start a proceeding under this Act, the proceeding may be started for the State as follows— (a) for chapter 2 or 2A— (i) by the commission; or (ii) with the approval of the commission, by a police officer; or (b) for chapter 3 or 4, by an appropriate officer; or (c) for chapter 10, part 1, by an appropriate officer. (2) A proceeding taken by or for the State must be taken under the title "State of Queensland". (3) The DPP is the solicitor on the record for the proceeding. (4) Without limiting subsection (2), any document of the State necessary for the proceeding under a provision of this Act may be signed by a person who is an appropriate officer for that provision. (5) For this Act, appropriate officer— (a) for subsection (1)(c), chapter 2, chapter 2A or chapter 10, means— (i) the chairperson; or (ii) an authorised commission officer; or (iii) the DPP, a deputy DPP, or a lawyer appointed to assist the DPP in the performance of the DPP's functions; or (b) for subsection (1)(b), chapter 3 or chapter 4— (i) means a person mentioned in paragraph (a)(iii); or (ii) for the purposes of an application to a Magistrates Court for a forfeiture order or pecuniary penalty order and related matters—includes the commissioner of the police service or another police officer. Chapter 2 Confiscation without conviction Part 1 Preliminary 13 Explanation of ch 2 (1) This chapter enables proceedings to be started to confiscate property derived from illegal activity whether or not a person who engaged in the relevant activity has been convicted of any offence. (2) Also, this chapter enables proceedings to be taken to confiscate property derived from a serious crime related activity even though the person who engaged in the relevant activity has not been identified. (3) The chapter enables the Supreme Court, as a preliminary step, to make a restraining order preventing property, whether the property of the person who engaged in the relevant illegal activity or the serious crime derived property of someone else, being dealt with without the court's leave. (4) The court must make a forfeiture order confiscating the property (unless it is not in the public interest to make the order) if it finds it is more probable than not that— (a) the person whose suspected serious crime related activity was the basis of the relevant restraining order engaged in a serious crime related activity; or (b) the property is serious crime derived property because of a serious crime related activity of a person, even though a particular person suspected of having engaged in the serious crime related activity can not be identified. (5) The court may also make a proceeds assessment order against a person who has engaged in a serious crime related activity, requiring the person to pay to the State the amount the court decides is the value of proceeds derived from the person's illegal activity over a period of up to 6 years before the application for the order is made. (6) The chapter also enables the court to make an unexplained wealth order against a person, requiring the person to pay to the State an amount worked out under section 89L(2) or (3). (7) The amount payable under the proceeds assessment order or unexplained wealth order may be recovered as a debt payable to the State. (8) The chapter contains other ancillary provisions including provisions giving persons opportunities to have lawfully acquired property excluded from the effect of restraining orders and forfeiture orders. 14 Application of ch 2 Subject to the limitation period imposed under section 58, this chapter applies in relation to illegal activity or serious crime related activity whether happening before or after the commencement of this section. Part 2 Interpretation Division 1 References to relevant offences 15 Meaning of illegal activity An illegal activity is an activity that is— (a) a serious crime related activity; or (b) an act or omission that is an offence against the law of Queensland or the Commonwealth; or (c) an act or omission committed outside Queensland that— (i) is an offence against the law of the place in which it is committed; and (ii) would be an offence mentioned in paragraph (b) if it were committed in Queensland. Note— This definition applies to the whole Act. See the dictionary. 16 Meaning of serious crime related activity and external serious crime related activity (1) Anything done by a person that was, when it was done, a serious criminal offence, is a serious crime related activity. (2) Subsection (1) applies whether or not the person has been charged with the offence or, if charged— (a) has been tried; or (b) has been tried and acquitted; or (c) has been convicted, even if the conviction has been quashed or set aside. (3) An external serious crime related activity is a serious crime related activity arising out of an offence under the law of the Commonwealth or a place outside Queensland, including outside Australia, that, if the offence had been committed in Queensland, would be a serious criminal offence. 17 Meaning of serious criminal offence (1) An offence is a serious criminal offence if it is any of the following— (a) an indictable offence for which the maximum penalty is at least 5 years imprisonment; (b) an offence prescribed under a regulation for this definition; (c) an offence under the law of the Commonwealth or a place outside Queensland, including outside Australia, that, if the offence had been committed in Queensland, would be an offence mentioned in paragraph (a) or (b); (d) an ancillary offence to an offence mentioned in paragraph (a), (b) or (c) including an offence that would be an ancillary offence to an offence mentioned in paragraph (c) if the offence had been committed in Queensland. (2) In this section— indictable offence includes an indictable offence dealt with summarily. Division 2 References to proceeds, property and benefits 18 Meaning of proceeds Proceeds, in relation to an activity, includes property and another benefit derived because of the activity— (a) by the person who engaged in the activity; or (b) by another person at the direction or request, directly or indirectly, of the person who engaged in the activity. 19 Meaning of property Property of a person— (a) includes— (i) an interest the person has in a licence a person must hold to carry on a particular business; and (ii) an interest the person has in the goodwill of a business; and (iii) property of someone else that is under the effective control of the person; and (b) does not include property of the person that is under the effective control of someone else. Note— This provision is in addition to the definition of property given by the Acts Interpretation Act 1954, schedule 1. 20 Meaning of effective control of property (1) Property may be under a person's effective control even if— (a) the person does not have a direct or indirect right, power or privilege over, or in relation to, the property; or (b) the person does not otherwise have an interest in the property. (2) Regard may be had to all relevant matters in deciding— (a) whether or not property is under a person's effective control; or (b) whether or not there are reasonable grounds to suspect that property is under a person's effective control. (3) Matters to which regard may be had include, for example— (a) shareholdings in, debentures over, or directorships of, a corporation that has a direct or indirect interest in the property; and (b) a trust that has a relationship to the property; and (c) family, domestic, business and other relationships between any of the following and other persons— (i) persons having an interest in the property; (ii) corporations that have a direct or indirect interest in the property; (iii) trusts that have a relationship to the property. (4) However, property is under the effective control of a person (the first person) if the property— (a) is held by another person for the ultimate benefit of the first person; or (b) was a gift given by the first person to another person within 6 years before the making of an application for a restraining order, whether or not the gift is still in the other person's possession. (5) Subsection (6) applies if— (a) a restraining order is made for particular property because a person to whom the restraining order relates has effective control of the property; and (b) the restraining order directs the public trustee to take control of the property. (6) For the purposes of the Supreme Court's power to make further orders under this chapter in relation to the property in reliance, directly or indirectly, on a provision of this Act that mentions property that is, or is not, under the effective control of the person, the property is taken to continue to be under the effective control of the person. Note— This definition applies to the whole Act. See the dictionary. 21 Meaning of benefit and benefit derived (1) Benefit includes service and advantage. (2) A benefit derived by a person includes a benefit derived by someone else at the person's request or direction. Division 3 References to illegally acquired property and serious crime derived property Subdivision 1 Meaning of particular property related terms 22 Meaning of illegally acquired property (1) Property is illegally acquired property if it is all or part of the proceeds of an illegal activity. (2) Property is also illegally acquired property if— (a) it is all or part of the proceeds of dealing with illegally acquired property; or (b) all or part of it was acquired using illegally acquired property. (3) For subsection (2), it does not matter whether the property dealt with or used in the acquisition became illegally acquired property because of subsection (1) or subsection (2). (4) Subsections (1) and (2) apply whether or not the activity, dealing or acquisition because of which the property became illegally acquired property happened before the commencement of this section. (5) Also, if the proceeds of dealing with illegally acquired property are credited to or placed in an account, the proceeds do not lose their identity as proceeds because they are credited to or placed in an account. Note— Generally, illegally acquired property is used in this chapter, but some provisions, for example, section 28(3)(c), use the narrower expression serious crime derived property. This definition applies to the whole Act. See the dictionary. 23 Meaning of serious crime derived property (1) Property is serious crime derived property if it is all or part of the proceeds of a serious crime related activity. (2) Property is also serious crime derived property if— (a) it is all or part of the proceeds of dealing with serious crime derived property; or (b) all or part of it was acquired using serious crime derived property. (3) For subsection (2), it does not matter whether the property dealt with or used in the acquisition became serious crime derived property because of subsection (1) or subsection (2). (4) Subsections (1) and (2) apply whether or not the activity, dealing or acquisition because of which the property became serious crime derived property happened before the commencement of this section. (5) Also, if the proceeds of dealing with serious crime derived property are credited to or placed in an account, the proceeds do not lose their identity as proceeds because they are credited to or placed in an account. Subdivision 2 Provisions about continuing application of subdivision 1 to illegally acquired property and serious crime derived property 24 Definitions for sdiv 2 In this subdivision— character of property means its character as either illegally acquired property or serious crime derived property. property means property that is either of the following because of subdivision 1— (a) illegally acquired property; (b) serious crime derived property. 25 Property retains its character despite disposal Illegally acquired property or serious crime derived property retains its character—even if it is disposed of, including by using it to acquire other property—until it stops being property of that character under section 26. 26 When property stops being illegally acquired property or serious crime derived property Property stops being illegally acquired property or serious crime derived property— (a) when it is acquired by a person for sufficient consideration, without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was illegally acquired property or serious crime derived property; or (b) when it vests in a person on the distribution of the estate of a deceased; or (c) when it is disposed of under this Act, including when discharging a pecuniary penalty order, a proceeds assessment order or an unexplained wealth order; or (d) when it is the proceeds of the disposal of property under this Act other than by sale under a condition of a restraining order or by order of the Supreme Court under section 46, 93ZP or 138; or (e) when it is acquired by Legal Aid as payment of reasonable legal expenses payable because of an application under this Act or in defending a charge of an offence; or (f) in circumstances prescribed under a regulation. 27 Property may again become illegally acquired property or serious crime derived property If property that was, but is no longer, illegally acquired property or serious crime derived property is again acquired by the person who owned it when it had that character, the property again becomes property of that character unless it is acquired by the person under an order under this Act. Note— For an example of the practical operation of this provision, see schedule 1, part 1, example 2. Part 3 Restraining orders Division 1 Application for restraining orders 28 Application for restraining order (1) The State may apply to the Supreme Court for an order (restraining order) restraining any person from dealing with property stated in the order (the restrained property) other than in a stated way or in stated circumstances. (2) The application— (a) must be supported by an affidavit of an authorised commission officer or a police officer; and (b) may be made without notice to any person to whom it relates. (3) The application may relate to all or any of the following property— (a) for property of a person suspected of having engaged in 1 or more serious crime related activities (a prescribed respondent)— (i) stated property; or (ii) a stated class of property; or (iii) all property; or (iv) all property other than stated property; or (v) all or stated property acquired after the restraining order is made; (b) stated property, or a stated class of property, of a stated person, other than a prescribed respondent; (c) stated property suspected of being serious crime derived property because of a serious crime related activity of a person, even though a particular person suspected of having engaged in the serious crime related activity can not be identified. (4) An application for a restraining order that relates to property of a person suspected of having engaged in 1 or more external serious crime related activities may be made only if the person whose property it is lives in Queensland or the property is situated in Queensland. (5) The court may refuse to consider the application until the State gives the court all the information the court requires about the application in the way the court requires. Example— The court may require additional information supporting the application to be given by affidavit or statutory declaration. 29 Affidavit (1) The affidavit of the authorised commission officer or police officer must state— (a) for property mentioned in section 28(3)(a) if the serious crime related activity involves an offence stated in schedule 2, part 1—the officer suspects the prescribed respondent— (i) has engaged in 1 or more serious crime related activities; and (ii) the reason for the suspicion; or (b) for property mentioned in section 28(3)(a) if paragraph (a) does not apply—the officer suspects the prescribed respondent— (i) has engaged in 1 or more serious crime related activities; and (ii) has derived proceeds from engaging in 1 or more of these serious crime related activities; and (iii) the reason for the suspicion; or (c) for property mentioned in section 28(3)(b)—the officer suspects the property is serious crime derived property because of a serious crime related activity of a prescribed respondent and the reason for the suspicion; or (d) for property mentioned in section 28(3)(c)—the officer suspects the property is serious crime derived property and the reason for the suspicion. (2) Also, for property of a person suspected of having engaged in 1 or more external serious crime related activities, the affidavit must state that the authorised commission officer or police officer has made due enquiry and is satisfied that no action has been taken under a law of the Commonwealth or any place outside Queensland, including outside Australia, against property of the prescribed respondent that is the subject of the application as a result of the external serious crime related activity. 30 Notice of application (1) Subject to section 30A(2), the State must give notice of the application— (a) to each person whose property the authorised commission officer or police officer whose affidavit supports the application reasonably believes is the subject of the application; and (b) to anyone else the authorised commission officer or police officer whose affidavit supports the application considers has an interest in the property the subject of the application. (2) Notice given under subsection (1)(a) must be accompanied by a copy of the affidavit supporting the application. (3) Notice given under subsection (1)(b) must include a statement informing the person that if the person asks, the person will be given a copy of the affidavit supporting the application. Division 2 Making restraining orders 30A Hearing of application (1) The Supreme Court must not hear an application for a restraining order unless satisfied the person whose property is the subject of the application has received reasonable notice of the application. (2) Despite subsection (1), the court must consider the application without notice having been given if an appropriate officer asks the court to do so. (3) However, the Supreme Court may, at any time before finally deciding the application, direct the State to give notice of the application to a stated person or class of persons in the way, and within the time, the court considers appropriate. (4) A person whose property is the subject of the application, and anyone else who claims to have an interest in the property, may appear at the hearing of the application. 31 Making restraining order (1) The Supreme Court must make a restraining order in relation to property if, after considering the application and the relevant affidavit, it is satisfied there are reasonable grounds for the suspicion on which the application is based. (2) However, the court may refuse to make the order if— (a) the court is satisfied in the particular circumstances it is not in the public interest to make the order; or (b) the State fails to give the court the undertakings the court considers appropriate for the payment of damages or costs, or both, in relation to the making and operation of the order. (3) The commission or, if the application is made by a police officer, the commissioner of the police service may, for the State, give the court the undertakings the court requires. (4) A restraining order does not apply to property of a person acquired after the order is made unless the order expressly states it applies to the property. (5) Also, the making of a restraining order does not prevent the person whose property is restrained under the order from giving Legal Aid a charge over the property as a condition of an approval to give legal assistance under the Legal Aid Act in relation to— (a) a proceeding under this Act; or (b) a criminal proceeding in which the person is a defendant, including any proceeding on appeal against conviction or sentence. 32 Conditions of restraining order (1) It is a condition of every restraining order that the person whose property is restrained under the order must preserve the property. (2) The Supreme Court may impose the other conditions the court considers appropriate, including, but not limited to, the following— (a) a condition about who is to have possession of the property; (b) a condition of a kind mentioned in section 33 or 34. 33 Condition about dealing with property by agreement The Supreme Court may impose a condition authorising the commission or, if the application is made by a police officer, the commissioner of the police service to agree to— (a) the disposal of the property restrained under the restraining order by its owner to enable the proceeds of the disposal to be applied to satisfy all or part of a debt payable under another order made under this Act; or (b) the application of the property by its owner to satisfy all or part of a debt payable under another order made under this Act. 34 Condition about particular payments out of restrained property (1) The Supreme Court may impose a condition providing for all or any of the following to be paid out of the property of a particular person, or a stated part of the person's property, restrained under the restraining order— (a) the person's reasonable living expenses and reasonable business expenses; (b) the reasonable living expenses of any of the person's dependants; (c) a stated debt incurred in good faith by the person. (2) Subsection (1) is the only provision of this chapter under which provision may be made for the payment of expenses or a debt mentioned in subsection (1). (3) Also, subsection (1) applies only if the Supreme Court is satisfied— (a) the person can not meet the expenses or debt out of property that is not restrained under the order and the person has no source of income to meet the expenses or debt; and (b) the property from which the expenses or debt are to be paid is not illegally acquired property. (4) Further, subsection (1) does not authorise the imposition of a condition providing for the payment of a person's legal expenses that are payable because— (a) the person is a party to a proceeding under this Act; or (b) the person is a defendant in a criminal proceeding, including any proceeding on appeal against conviction or sentence. 35 Restraining order may direct public trustee to take control of property If the Supreme Court considers the circumstances require it, the court may, in a restraining order or a later order, direct the public trustee to take control of some or all of the property restrained under the order. 36 Duration of restraining order (1) A restraining order is in force for 28 days after it is made. (2) Despite subsection (1), a restraining order continues in force after the end of the 28 days if— (a) before the end of the 28 days, an application for any of the following is made but the application has not been decided— (i) a forfeiture order for the restrained property; (ii) a proceeds assessment order against the person whose property is restrained under the restraining order; (iii) an unexplained wealth order against the person whose property is restrained under the restraining order; or (b) there is an unsatisfied proceeds assessment order or unexplained wealth order in force against the person whose suspected serious crime related activities were the basis of the restraining order; or (c) the order continues in force because of an order of the Supreme Court under section 54. Division 3 Making other orders 37 Supreme Court may make other orders (1) The Supreme Court may make the