Commonwealth: Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 (Cth)

Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 Act No. 4 of 2010 as amended This compilation was prepared on 29 March 2011 taking into account amendments up to Act No. 5 of 2011 The text of any of those amendments not in force on that date is appended in the Notes section The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section Prepared by the Office of Legislative Drafting and Publishing, Attorney‑General's Department, Canberra Contents 1 Short title [see Note 1]........................... 2 Commencement 3 Schedule(s) 4 Regulations Schedule 1—Proceeds of crime Part 1—Exclusion, recovery and compensation Proceeds of Crime Act 2002 Part 2—Pecuniary penalty orders Proceeds of Crime Act 2002 Part 3—Examinations Proceeds of Crime Act 2002 Part 4—Notices Proceeds of Crime Act 2002 Part 5—Ancillary orders Proceeds of Crime Act 2002 Part 6—Evidence Proceeds of Crime Act 2002 Part 7—Definitions Proceeds of Crime Act 2002 Part 8—Technical amendments relating to orders Proceeds of Crime Act 2002 Part 9—Confiscated Assets Account Division 1—Simplification of accounting Proceeds of Crime Act 2002 Division 2—Crediting amounts paid to settle proceedings Proceeds of Crime Act 2002 Division 3—Payments by the Commonwealth under court orders Proceeds of Crime Act 2002 Part 10—Other amendments Administrative Decisions (Judicial Review) Act 1977 Proceeds of Crime Act 2002 Schedule 2—Search warrants Part 1—Seized things Crimes Act 1914 Part 2—Use of equipment under warrant Crimes Act 1914 Schedule 3—Witness protection Part 1—Amendments Witness Protection Act 1994 Part 2—Application and saving provisions Schedule 4—Criminal organisation and association offences Criminal Code Act 1995 Telecommunications (Interception and Access) Act 1979 Schedule 5—Money laundering Part 1—Criminal Code Act 1995 Part 2—Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 Schedule 6—Unfitness to plead Crimes Act 1914 Schedule 7—Amendments relating to the Australian Crime Commission Part 1—Main amendments Australian Crime Commission Act 2002 Part 2—Consequential amendments Administrative Decisions (Judicial Review) Act 1977 Surveillance Devices Act 2004 Telecommunications (Interception and Access) Act 1979 Part 3—Application provisions Schedule 8—Penalties for bribery Criminal Code Act 1995 Schedule 9—Drug importation Criminal Code Act 1995 Schedule 10—Amendments consequential on enactment of joint commission offence Aboriginal and Torres Strait Islander Act 2005 A New Tax System (Family Assistance) (Administration) Act 1999 Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 Corporations (Aboriginal and Torres Strait Islander) Act 2006 Corporations Act 2001 Crimes Act 1914 Crimes (Biological Weapons) Act 1976 Crimes (Internationally Protected Persons) Act 1976 Crimes (Ships and Fixed Platforms) Act 1992 Customs Administration Act 1985 Defence Force Discipline Act 1982 Excise Act 1901 Great Barrier Reef Marine Park Act 1975 Historic Shipwrecks Act 1976 Patents Act 1990 Privacy Act 1988 Proceeds of Crime Act 2002 Sea Installations Act 1987 Social Security Act 1991 Social Security (Administration) Act 1999 Superannuation (Resolution of Complaints) Act 1993 Trade Marks Act 1995 War Crimes Act 1945 Schedule 11—References to repealed provisions of the Crimes Act 1914 Aircraft Noise Levy Collection Act 1995 Airports Act 1996 Antarctic Marine Living Resources Conservation Act 1981 Antarctic Treaty (Environment Protection) Act 1980 Crimes Act 1914 Defence Act 1903 Environment Protection (Sea Dumping) Act 1981 Export Market Development Grants Act 1997 Gene Technology Act 2000 Health Insurance Act 1973 Offshore Minerals Act 1994 Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 Plant Breeder's Rights Act 1994 Shipping Registration Act 1981 South Pacific Nuclear Free Zone Treaty Act 1986 Taxation Administration Act 1953 Tobacco Advertising Prohibition Act 1992 Trade Practices Act 1974 Tradex Scheme Act 1999 Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 Notes An Act to amend various Acts relating to the enforcement of the criminal law, and for other purposes 1 Short title [see Note 1] This Act may be cited as the Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010. 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 4 and anything in this Act not elsewhere covered by this table The day this Act receives the Royal Assent. 19 February 2010 2. Schedule 1, items 1 to 213 The later of: 20 February 2010 (a) the day after this Act receives the Royal Assent; and (b) immediately after the commencement of Part 1 of Schedule 2 to the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 3. Schedule 1, item 214 The later of: 19 May 2010 (a) the day after this Act receives the Royal Assent; and (b) immediately after the commencement of Part 5 of Schedule 2 to the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 4. Schedule 1, item 215 The later of: 20 February 2010 (a) the day after this Act receives the Royal Assent; and (b) immediately after the commencement of Part 1 of Schedule 2 to the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010. However, the provision(s) do not commence at all if: (c) item 70 of Schedule 2 to the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 commences before the event mentioned in paragraph (a); or (d) the event mentioned in paragraph (b) does not occur. 5. Schedule 1, item 216 The later of: 19 May 2010 (a) the day after this Act receives the Royal Assent; and (b) immediately after the commencement of Part 5 of Schedule 2 to the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 6. Schedule 1, items 217 to 221 The later of: 20 February 2010 (a) the day after this Act receives the Royal Assent; and (b) immediately after the commencement of Part 1 of Schedule 2 to the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. 7. Schedules 2, 3 and 4 The day after this Act receives the Royal Assent. 20 February 2010 8. Schedule 5, Part 1 The 28th day after this Act receives the Royal Assent. 19 March 2010 9. Schedule 5, Part 2 The day after this Act receives the Royal Assent. 20 February 2010 10. Schedule 6, items 1 and 2 The later of: 20 February 2010 (a) the start of the day after this Act receives the Royal Assent; and (paragraph (a) applies) (b) immediately after the commencement of subsection 369(4) of the Criminal Procedure Act 2009 of Victoria. 11. Schedule 6, item 3 Immediately after the commencement of subsection 369(4) of the Criminal Procedure Act 2009 of Victoria. 1 January 2010 (see Vict. Gazette No. G50 p3215) 12. Schedules 7, 8 and 9 The day after this Act receives the Royal Assent. 20 February 2010 13. Schedules 10 and 11 The later of: 20 February 2010 (a) the day after this Act receives the Royal Assent; and (b) immediately after the commencement of Part 1 of Schedule 4 to the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010. However, the provision(s) do not commence at all if the event mentioned in paragraph (b) does not occur. Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or 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. 4 Regulations (1) The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) In particular, regulations may be made prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Act. Schedule 1—Proceeds of crime Part 1—Exclusion, recovery and compensation Proceeds of Crime Act 2002 1 Subsection 29(1) Omit "may", substitute "must". Note: The heading to section 29 is altered by omitting "Court may exclude" and substituting "Excluding". 2 Subsection 29(1) Omit "specified", substitute "a specified *interest in". 3 Paragraph 29(1)(b) Omit "property", substitute "interest". 4 Subsection 29(2) Omit "specified", substitute "a specified *interest in". 5 Paragraphs 29(2)(a), (b), (c) and (d) Omit "property", substitute "interest". 6 Subsection 29(3) Before "property" (first occurring), insert "a specified *interest in". 7 Paragraphs 29(3)(a) and (d) Omit "property", substitute "interest". 8 Subsection 29(4) Before "property" (first occurring), insert "a specified *interest in". 9 Paragraph 29(4)(a) Omit "owns the property", substitute "has the interest". 10 Paragraph 29(4)(b) Omit "property is not owned", substitute "interest is not held". 11 Section 29A Omit "may", substitute "must". Note: The heading to section 29A is altered by omitting "Court may exclude" and substituting "Excluding". 12 Section 29A Omit "specified", substitute "a specified *interest in". 13 Paragraph 29A(b) Repeal the paragraph, substitute: (b) the court is satisfied that the interest is held by a person other than the *suspect and is not subject to the *effective control of the suspect. 14 Section 29A (note) Omit "an examination of the applicant", substitute "examinations in relation to the restraining order". 15 Subsection 30(1) Repeal the subsection, substitute: (1) A person may apply for an order under section 29 or 29A if a *restraining order that could cover property in which the person claims an *interest has been applied for, but is yet to be made. Note: The heading to section 30 is altered by omitting "after notice of the application for the order" and substituting "before restraining order has been made". 16 Subsection 31(1) Repeal the subsection, substitute: (1) A person may apply for an order under section 29 or 29A if a *restraining order that covers property in which the person claims an *interest has been made. (1A) An application under subsection (1): (a) must be made to the court that made the *restraining order; and (b) may be made at any time after the restraining order is made. Note: The heading to section 31 is altered by omitting "notice of the order" and substituting "restraining order has been made". 17 At the end of subsection 31(6) Add "However, the DPP need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.". 18 Paragraph 32(b) Omit "an *examination of the applicant", substitute "*examinations in relation to the application". 19 Application Division 3 of Part 2‑1 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 20 Subsection 73(1) Before "property" (first occurring), insert "a specified *interest in". 21 Paragraph 73(1)(b) Omit "the applicant's property", substitute "property in which the applicant has an interest". 22 Paragraphs 73(1)(c), (d) and (e) Repeal the paragraphs, substitute: (c) if the forfeiture order was (or the forfeiture order applied for would be) made under section 47 or 49—the court is satisfied that the applicant's interest in the property is neither of the following: (i) *proceeds of *unlawful activity; (ii) if an offence on which the order was (or would be) based is a *serious offence—an instrument of any serious offence; and (d) if the forfeiture order was (or the forfeiture order applied for would be) made under section 48—the court is satisfied that the applicant's interest in the property is neither proceeds nor an instrument of any of the offences to which the forfeiture order or forfeiture application relates. 23 Paragraph 73(2)(a) Omit "property", substitute "*interest". 24 Paragraphs 73(2)(b), (c) and (d) Omit "property" (wherever occurring), substitute "interest". 25 Subsection 74(1) Omit "the *person's property", substitute "property in which the person claims an *interest". 26 Subsections 74(2) and (3) Repeal the subsections, substitute: After a forfeiture order has been made (2) A person who claims an *interest in property specified in a *forfeiture order may, at any time after the forfeiture order is made, apply to the court that made the forfeiture order for an *exclusion order. (3) However, unless the court gives leave, the person cannot apply for an *exclusion order if he or she: (a) was notified of the application for the *forfeiture order, but did not appear at the hearing of that application; or (b) appeared at the hearing of that application. (4) The court may give the person leave to apply if the court is satisfied that: (a) if paragraph (3)(a) applies—the person had a good reason for not appearing; or (b) if paragraph (3)(b) applies—the person now has evidence relevant to the person's application that was not available to the person at the time of the hearing; or (c) in either case—there are other special grounds for granting the leave. 27 Subsection 75(3) Omit "examine the applicant under Part 3‑1", substitute "conduct *examinations in relation to the application". 28 Section 76 Omit "examine the applicant under Part 3‑1", substitute "conduct *examinations in relation to the application". 29 Subdivision C of Division 5 of Part 2‑2 (heading) Repeal the heading, substitute: Subdivision C—Compensating for proportion of property not derived or realised from commission of any offence 30 Subsection 77(1) Repeal the subsection, substitute: (1) A court that made a *forfeiture order, or that is hearing, or is to hear, an application for a forfeiture order, must make an order under subsection (2) (a compensation order) if: (a) a person (the applicant) has applied for a compensation order; and (b) the court is satisfied that the applicant has an *interest in property specified in the forfeiture order or in the application for the forfeiture order; and (c) the court is satisfied that a proportion of the value of the applicant's interest was not derived or realised, directly or indirectly, from the commission of any offence; and (d) the court is satisfied that the applicant's interest is not an instrument of any offence; and (e) in the case of a court that is hearing or is to hear an application for a forfeiture order—the court makes the forfeiture order. 31 Paragraph 77(2)(b) After "Commonwealth", insert ", once the property has vested absolutely in it,". 32 Section 78 Repeal the section, substitute: 78 Application for compensation orders Before a forfeiture order has been made (1) A person may apply to a court for a *compensation order if an application for a *forfeiture order that could specify property in which the person claims an *interest has been made to the court, but the forfeiture order is yet to be made. After a forfeiture order has been made (2) A person who claims an *interest in property specified in a *forfeiture order may, at any time after the forfeiture order is made, apply to the court that made the forfeiture order for a *compensation order. (3) However, unless the court gives leave, the person cannot apply under subsection (2) if he or she: (a) was notified of the application for the *forfeiture order, but did not make an application under subsection (1) before the forfeiture order was made; or (b) appeared at the hearing of the application for the forfeiture order. (4) The court may give the person leave to apply under subsection (2) if the court is satisfied that: (a) if paragraph (3)(a) applies—the person had a good reason for not making an application under subsection (1) before the *forfeiture order was made; or (b) in either case: (i) the person now has evidence relevant to the making of the *compensation order that was not available to the person at the time the forfeiture order was made; or (ii) there are other special grounds for granting the leave. 33 At the end of subsection 79(3) Add "However, the DPP need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.". 34 At the end of Subdivision C of Division 5 of Part 2‑2 Add: 79A When an application can be heard An application for a *compensation order must not be heard until the *DPP has had a reasonable opportunity to conduct *examinations in relation to the application. 35 Application (1) Subdivisions B and C of Division 5 of Part 2‑2 of the Proceeds of Crime Act 2002, as amended by this Part, apply in relation to forfeiture orders under section 47 or 49 of that Act that relate to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. (2) Subdivisions B and C of Division 5 of Part 2‑2 of the Proceeds of Crime Act 2002, as amended by this Part, apply in relation to forfeiture orders under section 48 of that Act applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 36 Section 91 (simplified outline) Before: There are cases in which forfeited property can be recovered from the Commonwealth. Insert: There are cases in which compensation is payable by the Commonwealth. 37 Paragraph 92(1)(a) Omit "the", substitute "a". 38 Subparagraph 92(1)(b)(i) After "order", insert "under section 17 or 18". 39 Paragraph 92(3)(a) Omit "day of the conviction", substitute "*conviction day". 40 After section 92 Insert: 92A Notice of date of forfeiture under this Part, etc. (1) The *DPP must, before property is forfeited under this Part, take reasonable steps to give any person who has or claims, or whom the DPP reasonably believes may have, an *interest in the property a written notice stating: (a) the date on which the property will be forfeited under this Part unless it is excluded from forfeiture; and (b) the effect of section 93 (which deals with *extension orders); and (c) that the person may be able to apply for an order under one of the following sections in relation to the property: (i) section 29 (which deals with the exclusion of property from *restraining orders); (ii) section 94 (which deals with the exclusion of property from forfeiture); (iii) section 94A (which deals with compensation). (2) However, the *DPP need not give a notice to a person under subsection (1) if the person has made: (a) an application for an *extension order in relation to the property; and (b) an application under section 30, 31 or 94 in relation to the property. 41 Paragraph 93(1)(a) Omit "day of", substitute "*conviction day for". 42 Paragraph 93(1)(b) Repeal the paragraph, substitute: (b) the applicant has also applied to the court under: (i) section 30 or 31 to exclude property from the restraining order; or (ii) section 94 to exclude the property that is covered by the restraining order from forfeiture under this Part; and 43 Paragraph 93(1)(c) Omit "31", substitute "30, 31 or 94". 44 Subsection 93(1) Omit "day of" (last occurring), substitute "conviction day for". 45 Subsection 93(2) Omit "31", substitute "30, 31 or 94". 46 Subsection 93(2) Omit "day of", substitute "*conviction day for". 47 Subsection 93(3) Omit "31", substitute "30, 31 or 94". 48 At the end of section 93 Add: (4) If the court makes the *extension order, the *DPP must take reasonable steps to give any person who has or claims, or whom the DPP reasonably believes may have, an *interest in the property to which the order relates a written notice stating: (a) the date on which the property will be forfeited under this Part, in accordance with the extension order, unless it is excluded from forfeiture; and (b) the effect of subsections (2) and (3). 49 Subsection 94(1) Omit "the *restraining", substitute "a *restraining". 50 Subsection 94(1) Omit "may", substitute "must". 51 Paragraphs 94(1)(a), (b) and (c) Repeal the paragraphs, substitute: (a) a person (the applicant) has applied for an order under this section; and (b) the court is satisfied that the applicant has an *interest in property covered by the restraining order; and 52 Paragraph 94(1)(d) Omit "the person", substitute "a person". 53 Paragraph 94(1)(e) Before "property", insert "applicant's interest in the". 54 Paragraph 94(1)(f) Omit "defendant's", substitute "applicant's". 55 At the end of subsection 94(5) Add "However, the DPP need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.". 56 At the end of section 94 Add: (6) The application must not be heard until the *DPP has had a reasonable opportunity to conduct *examinations in relation to the application. 57 After section 94 Insert: 94A Compensating for proportion of property not derived or realised from commission of any offence (1) The court that made a *restraining order referred to in paragraph 92(1)(b) must make an order that complies with subsection (2) if: (a) a person (the applicant) has applied for an order under this section; and (b) the court is satisfied that the applicant has an *interest in property covered, or that was at any time covered, by the restraining order; and (c) a person has been convicted of a *serious offence to which the restraining order relates; and (d) the court is satisfied that a proportion of the value of the applicant's interest was not derived or realised, directly or indirectly, from the commission of any offence; and (e) the court is satisfied that the applicant's interest is not an *instrument of any offence. (2) An order under this section must: (a) specify the proportion found by the court under paragraph (1)(d); and (b) direct the Commonwealth, once the property has vested absolutely in it, to: (i) if the property has not been disposed of—dispose of the property; and (ii) pay the applicant an amount equal to that proportion of the difference between the amount received from disposing of the property and the sum of any payments of the kind referred to in paragraph 100(1)(b) in connection with the forfeiture. (3) A person who claims an *interest in property covered by a *restraining order referred to in paragraph 92(1)(b) may apply to the court that made the restraining order for an order under this section at any time. (4) However, if the property has already been forfeited under this Part, the person cannot, unless the court gives leave, apply under subsection (3) if he or she: (a) either: (i) was given a notice under subsection 92A(1) in relation to the property; or (ii) was not given such a notice because of subsection 92A(2); and (b) did not make the application under subsection (3) before that forfeiture. (5) The court may give the person leave to apply if the court is satisfied that: (a) the person had a good reason for not making the application before the forfeiture; or (b) the person now has evidence relevant to the application that was not available before the forfeiture; or (c) there are special grounds for granting the leave. (6) The person must give written notice to the *DPP of both the application and the grounds on which the order is sought. (7) The *DPP may appear and adduce evidence at the hearing of the application. (8) The *DPP must give the applicant notice of any grounds on which it proposes to contest the application. However, the DPP need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application. (9) The application must not be heard until the *DPP has had a reasonable opportunity to conduct *examinations in relation to the application. 58 Subsection 102(1) Omit "(1)". 59 Subsection 102(1) Omit "may", substitute "must". 60 Paragraph 102(1)(b) Repeal the paragraph, substitute: (b) the court is satisfied that: (i) the applicant had an interest in the property before the forfeiture of the property; and (ii) the applicant's interest in the property is neither *proceeds of unlawful activity nor an *instrument of unlawful activity; and (iii) the applicant's interest in the property was lawfully acquired; 61 Subparagraph 102(1)(d)(ii) Omit "declaring that there is payable by the Commonwealth", substitute "directing the Commonwealth to pay". 62 Subsections 102(2) and (3) Repeal the subsections. 63 Section 104 Repeal the section, substitute: 104 Applying for orders under section 102 or 103 (1) A person who claims an *interest in property that has been forfeited to the Commonwealth under section 92 may, at any time after the forfeiture, apply to the court that made the *restraining order referred to in paragraph 92(1)(b) for an order under section 102 or 103. (2) However, unless the court gives leave, the person cannot make an application for an order under section 102 if he or she: (a) either: (i) was given a notice under subsection 92A(1) in relation to the property; or (ii) was not given such a notice because of subsection 92A(2); and (b) either: (i) did not make an application under section 29 or 94 in relation to the property; or (ii) made such an application and appeared at the hearing of the application. (3) The court may give the person leave to apply if the court is satisfied that: (a) if subparagraph (2)(b)(i) applies—the person had a good reason for not making an application under section 29 or 94; or (b) if subparagraph (2)(b)(ii) applies—the person now has evidence relevant to the person's application under this section that was not available at the time of the hearing; or (c) in either case—there are other special grounds for granting the leave. (4) The applicant must give written notice to the *DPP of both the application and the grounds on which the order is sought. (5) The *DPP may appear and adduce evidence at the hearing of the application. (6) The *DPP must give the applicant notice of any grounds on which it proposes to contest the application. However, the DPP need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application. (7) The application must not be heard until the *DPP has had a reasonable opportunity to conduct *examinations in relation to the application. 64 Paragraph 106(b) Omit "subparagraph 102(1)(d)(i)", substitute "subparagraph 102(d)(i)". 65 Application Part 2‑3 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to property covered by restraining orders made on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 66 Paragraph 333(1)(a) Omit "the person was convicted of", substitute "a court passes sentence for". 67 Application Paragraph 333(1)(a) of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to a person in relation to whom a court passes sentence on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. Part 2—Pecuniary penalty orders Proceeds of Crime Act 2002 68 Subparagraph 121(4)(a)(i) After "property", insert ", or property suspected of being subject to the *effective control of the person,". 69 Paragraph 122(1)(a) Omit all the words after "control", substitute "of the person or another person". 70 Paragraph 122(1)(b) Omit all the words after "provided", substitute "to the person or another person". 71 Paragraph 124(1)(c) After "illegal activity" (last occurring), insert "and the other unlawful activity". 72 Paragraph 124(5)(a) After "property", insert ", or property that is suspected of being subject to the *effective control of the person,". 73 Section 130 Omit "offence" (first occurring), substitute "*unlawful activity". 74 Paragraph 130(a) Omit "offence", substitute "unlawful activity". 75 Subsection 133(1) Omit "one or both of subsections (2) and (3) apply", substitute "one or more of subsections (2), (2A) or (3) apply". 76 After subsection 133(2) Insert: (2A) The *penalty amount may be increased if: (a) the penalty amount was reduced under section 130 to take account of a forfeiture of property or a proposed *forfeiture order against property; and (b) one of the following orders has been made: (i) an order under section 73 or 94 excluding an *interest in the property from forfeiture; (ii) an order under section 77 or 94A (which deal with compensation) directing the Commonwealth to pay an amount to a person in relation to a proportion of an interest in the property that was not derived or realised from the commission of any offence; (iii) an order under section 102 (which deals with the recovery of property) in relation to an interest in the property. The amount of the increase is such amount as the court considers appropriate. (2B) In determining the amount of the increase for the purposes of subsection (2A), the court may have regard to: (a) if subparagraph (2A)(b)(i) or (iii) applies—the value of the interest, as at the time the order was made; and (b) if subparagraph (2A)(b)(ii) applies—the amount that the Commonwealth was required to pay; and (c) any other matter the court considers relevant. 77 Application Division 2 of Part 2‑4 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to pecuniary penalty orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 78 At the end of section 134 Add: (6) Despite subsections (2) and (3), the court hearing the application may give leave for the application to be made after the time before which an application would otherwise need to be made under those subsections if it is satisfied that it would be in the interests of justice to allow the application. 79 Subsection 136(2) Omit ", and any affidavit supporting the application,". 80 Subsections 136(3) and (4) Repeal the subsections, substitute: (3) The *DPP must give a copy of any affidavit supporting the application to a person who would be subject to the *pecuniary penalty order (if it were made) within a reasonable time before the hearing of the application. 81 Application Division 3 of Part 2‑4 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to applications made on or after the commencement of this item for pecuniary penalty orders, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 82 Subsection 146(1) Repeal the subsection, substitute: (1) Subject to subsections (2) and (3), a *pecuniary penalty order made in relation to a person's conviction of an offence is discharged if: (a) the person's conviction of any of the offences to which the order relates is subsequently *quashed; and (b) the *DPP does not, within 14 days after the conviction is quashed, apply to the court that made the order for the order to be confirmed or varied. 83 Subsection 146(2) Omit "However, unless", substitute "Unless". 84 After subsection 146(2) Insert: (2A) To avoid doubt, the *DPP may make an application to confirm the order and an application to vary the order, and the court may hear both applications at the same time. 85 Subsection 146(3) Repeal the subsection, substitute: (3) A *pecuniary penalty order made in relation to a person's conviction of an offence is discharged if: (a) the person's conviction of the offence is subsequently *quashed; and (b) the order does not relate to any other offence; and (c) the offence is not a *serious offence. 86 Section 147 (including the note) After "confirmation" (wherever occurring), insert "or variation". Note: The heading to section 147 is altered by inserting "or variation" after "confirmation". 87 Subsection 148(1) After "confirmation", insert "or variation". Note: The heading to section 148 is altered by inserting "or variation" after "confirmation". 88 Subparagraph 148(2)(a)(i) Omit "the offence", substitute "any of the offences to which the order relates". 89 Subparagraph 148(2)(a)(ii) Omit "that offence", substitute "any of those offences". 90 Paragraph 148(2)(a) Omit "the conviction", substitute "such a conviction". 91 After section 149 Insert: 149A Court may vary pecuniary penalty order (1) The court may vary the *pecuniary penalty order by reducing the *penalty amount by an amount worked out under subsection (2) if the court is satisfied that: (a) the order relates to more than one offence; and (b) when the *DPP applied for the order, the court could have made the order in relation to at least one of the offences that has not been *quashed. (2) The amount is an amount equal to so much of the *penalty amount as the court reasonably believes to be attributable to a person's conviction of an offence: (a) to which the *pecuniary penalty order relates; and (b) that was *quashed. (3) In determining the amount by which the *penalty amount should be reduced under subsection (2), the court may have regard to: (a) the transcripts and evidence referred to in subsection 148(2); and (b) the transcript of, and the evidence given in, any proceedings relating to the application for the *pecuniary penalty order or any application to vary the order; and (c) any other matter that the court considers relevant. 92 Subsection 150(1) After "149,", insert "or varies the order under section 149A,". Note: The heading to section 150 is altered by inserting "or variation" after "confirmation". 93 Subsection 150(2) After "confirm", insert "or vary". Note: The heading to section 181 is altered by omitting "for confirmation of forfeiture" and substituting "relating to quashing of convictions". 94 Application Division 5 of Part 2‑4 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to convictions quashed on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 95 Paragraph 335(6)(a) Repeal the paragraph, substitute: (a) the order would, if made, be one of the following orders relating to an offence of which a person has been convicted: (i) a *restraining order under section 17; (ii) a *forfeiture order under section 48; (iii) a *pecuniary penalty order under subparagraph 116(1)(b)(i); and 96 Paragraph 335(6)(b) After "magistrate", insert "(the convicting magistrate)". 97 Subsection 335(6) Omit "the magistrate", substitute "a magistrate of the same court as the convicting magistrate". 98 Application Subsection 335(6) of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to persons convicted before a magistrate on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. Part 3—Examinations Proceeds of Crime Act 2002 99 Paragraph 180(1)(b) Repeal the paragraph, substitute: (b) a person who is a *suspect in relation to the restraining order; or 100 Subsection 180(1) Omit "affairs", substitute "*affairs". 101 Subsection 180(1) Omit "(including the nature and location of any property)". 102 Application Section 180 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 103 After section 180 Insert: 180A Examination orders relating to applications for exclusion from forfeiture (1) If an application for an order under section 73 or 94 for an *interest in property to be excluded from forfeiture is made, the court to which the application is made may make an order (an examination order) for the *examination of any person including: (a) a person who has or claims an interest in the property; or (b) the spouse or *de facto partner of a person referred to in paragraph (a); about the *affairs of a person referred to in paragraph (a) or (b). (2) The *examination order ceases to have effect when: (a) the application is withdrawn; or (b) the court makes a decision on the application. 180B Examination orders relating to applications for compensation (1) If an application for an order under section 77 or 94A (which deal with compensation) is made in relation to an *interest in property that has been or may be forfeited, the court to which the application is made may make an order (an examination order) for the *examination of any person including: (a) a person who has or claims an *interest in the property; or (b) the spouse or *de facto partner of a person referred to in paragraph (a); about the *affairs of a person referred to in paragraph (a) or (b). (2) The *examination order ceases to have effect when: (a) the application is withdrawn; or (b) the court makes a decision on the application. 180C Examination orders relating to applications under section 102 (1) If an application for an order under section 102 (which deals with the recovery of property) is made under section 104 in relation to forfeited property, the court to which the application is made may make an order (an examination order) for the *examination of any person including: (a) a person who has or claims an *interest in the property; or (b) the spouse or *de facto partner of a person referred to in paragraph (a); about the *affairs of a person referred to in paragraph (a) or (b). (2) The *examination order ceases to have effect when: (a) the application is withdrawn; or (b) the court makes a decision on the application. 180D Examination orders relating to enforcement of confiscation orders (1) If a *confiscation order has been made but not satisfied, the court that made the confiscation order may make an order (an examination order) for the *examination of any person including: (a) a person against whom the confiscation order was made; or (b) the spouse or *de facto partner of a person referred to in paragraph (a); about the *affairs of a person referred to in paragraph (a) or (b). (2) The *examination order ceases to have effect when proceedings relating to the enforcement of the *confiscation order are finally determined, withdrawn or otherwise disposed of. 180E Examination orders relating to restraining orders revoked under section 44 (1) If a *restraining order is revoked under section 44 (which deals with giving security to revoke etc. a restraining order), the court that revoked the restraining order may make an order (an examination order) for the *examination of any person including: (a) a person whose property was, or a person who had an *interest in property that was, the subject of the restraining order; or (b) the spouse or *de facto partner of a person referred to in paragraph (a); about the *affairs of a person referred to in paragraph (a) or (b). (2) The *examination order ceases to have effect when the *restraining order would have ceased to have effect, assuming it had not been revoked under section 44. 104 Application (1) Sections 180A and 180B of the Proceeds of Crime Act 2002, as inserted by this Part, apply in relation to applications for orders under section 73 or 77 of that Act: (a) if the forfeiture order to which the application relates was or would be made under section 47 or 49 of that Act—that relate to restraining orders applied for on or after the commencement of this item; and (b) if the forfeiture order to which the application relates was or would be made under section 48 of that Act—that relate to forfeiture orders applied for on or after the commencement of this item; whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. (2) Sections 180A and 180B of the Proceeds of Crime Act 2002, as inserted by this Part, apply in relation to applications for orders under section 94 or 94A of that Act that relate to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. (3) Sections 180C and 180E of the Proceeds of Crime Act 2002, as inserted by this Part, apply in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. (4) Section 180D of the Proceeds of Crime Act 2002, as inserted by this Part, applies in relation to confiscation orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 105 Subsection 181(1) Omit "affairs", substitute "*affairs". 106 Subsection 181(1) Omit "(including the nature and location of any property)". 107 Application Section 181 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to convictions quashed on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 108 Section 182 Before "An", insert "(1)". 109 At the end of section 182 Add: (2) The court must consider an application for an *examination order without notice having been given to any person if the *DPP requests the court to do so. 110 Subsection 187(4) Omit "affairs" (first occurring), substitute "*affairs". 111 After paragraph 187(4)(a) Insert: (aa) if the examination relates to an application for exclusion from forfeiture and the person is no longer a person whose affairs can, under section 180A, be subject to the examination; or (ab) if the examination relates to an application for an order under section 77 or 94A and the person is no longer a person whose affairs can, under section 180B, be subject to the examination; or (ac) if the examination relates to an application for an order under section 102 and the person is no longer a person whose affairs can, under section 180C, be subject to the examination; or (ad) if the examination relates to a *confiscation order that has not been satisfied and the person is no longer a person whose affairs can, under section 180D, be subject to the examination; or (ae) if the examination relates to a *restraining order that has been revoked and the person is no longer a person whose affairs can, under section 180E, be subject to the examination; or 112 Paragraph 187(5)(b) Repeal the paragraph, substitute: (b) is relevant to the *affairs of a person whose affairs can, under section 180, 180A, 180B, 180C, 180D, 180E or 181, be subject to the examination. 113 Application Sections 182 and 187 of the Proceeds of Crime Act 2002, as amended by this Part, apply in relation to examination orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 114 Section 195 (penalty) Omit "6 months or 30 penalty units", substitute "2 years or 120 penalty units". 115 Subsection 196(1) (penalty) Omit "6 months or 30 penalty units", substitute "2 years or 120 penalty units". 116 After section 197 Insert: 197A Giving false or misleading answers or documents A person commits an offence if: (a) the person is attending an *examination; and (b) the person gives an answer or produces a document in the examination; and (c) the answer or document: (i) is false or misleading; or (ii) omits any matter or thing without which it is misleading. Penalty: Imprisonment for 2 years or 120 penalty units, or both. 117 Subparagraph 269(a)(ii) Omit "affairs", substitute "*affairs". 118 Section 338 Insert: affairs of a person includes, but is not limited to: (a) the nature and location of property of the person or property in which the person has an interest; and (b) any activities of the person that are, or may be, relevant to whether or not the person has engaged in unlawful activity of a kind relevant to the making of an order under this Act. 119 Section 338 (definition of examination order) After "180", insert ", 180A, 180B, 180C, 180D, 180E". Part 4—Notices Proceeds of Crime Act 2002 120 After paragraph 202(5)(c) Insert: (ca) a document relevant to identifying, locating or quantifying property suspected of being: (i) proceeds of an indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern; or (ii) an instrument of a serious offence; whether or not the identity of the person who committed the offence is known; 121 Paragraph 202(5)(d) Omit "such property", substitute "property referred to in paragraph (c) or (ca)". 122 Paragraph 202(5)(f) After "(c),", insert "(ca),". 123 Subsection 202(6) After "(5)(c)(ii)", insert "or paragraph (5)(ca)". 124 Subsection 202(6) Omit "subparagraph" (second occurring), substitute "provision". 125 After paragraph 203(1)(c) Insert: (ca) specify the form and manner in which those documents are to be produced; and 126 Subsection 203(2) Repeal the subsection, substitute: (2) The time or times specified under paragraph (1)(c) must be: (a) at least 14 days after the day on which the *production order is made; or (b) if the magistrate who makes the production order is satisfied that it is appropriate, having regard to the matters specified in subsection (3), to specify an earlier time—at least 3 days after the day on which the production order is made. (3) The matters to which the magistrate must have regard for the purposes of deciding whether an earlier time is appropriate under paragraph (2)(b) are: (a) the urgency of the situation; and (b) any hardship that may be caused to the person required by the *production order to produce documents or make documents available. 127 At the end of section 211 Add: (3) It is a defence to an offence against subsection (1) if: (a) the person fails to comply with the *production order only because the person does not produce one or more documents specified in the order within the time specified in the order; and (b) the person took all reasonable steps to produce the document or documents within that time; and (c) the person produces the document or documents as soon as practicable after that time. Note: A defendant bears an evidential burden in relation to the matters in subsection (3) (see subsection 13.3(3) of the Criminal Code). 128 Application Part 3‑2 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to production orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 129 Paragraphs 213(1)(a) and (b) After "is", insert "or was". 130 Paragraph 213(1)(d) Omit "such". 131 Paragraph 213(1)(e) After "hold", insert "or held". 132 After paragraph 213(1)(e) Insert: (ea) determining whether a *stored value card was issued to a specified person by a financial institution; (eb) details of transactions made using such a card over a specified period of up to 6 months; 133 At the end of subsection 213(3) Add: ; or (f) the Commissioner of Taxation; or (g) the Chief Executive Officer of Customs; or (h) the Chairperson of the Australian Securities and Investments Commission. 134 Section 214 Before "The", insert "(1)". 135 Paragraph 214(d) After "provided", insert ", having regard to the record‑keeping capabilities of the financial institution (to the extent known to the officer)". 136 Paragraph 214(e) Repeal the paragraph, substitute: (e) specify that the information or documents must be provided no later than: (i) 14 days after the giving of the notice; or (ii) if the officer giving the notice believes that it is appropriate, having regard to the matters specified in subsection (2), to specify an earlier day that is at least 3 days after the giving of the notice—that earlier day; and 137 At the end of section 214 Add: (2) The matters to which the officer giving the notice must have regard in deciding whether to specify an earlier day under subparagraph (1)(e)(ii) are: (a) the urgency of the situation; and (b) any hardship that may be caused to the *financial institution required by the notice to provide the information or documents. 138 Section 218 Before "A", insert "(1)". 139 At the end of section 218 Add: (2) It is a defence to an offence against subsection (1) if: (a) the person fails to comply with the notice only because the person does not provide the information or a document within the period specified in the notice; and (b) the person took all reasonable steps to provide the information or document within that period; and (c) the person provides the information or document as soon as practicable after the end of that period. Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code). 140 Application Part 3‑3 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to notices given under section 213 of that Act on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 141 Subsection 219(1) Repeal the subsection, substitute: (1) A judge of a court of a State or Territory that has jurisdiction to deal with criminal matters on indictment may make an order (a monitoring order) that a *financial institution provide information about transactions: (a) conducted during a particular period through an *account held by a particular person with the institution; or (b) made using a *stored value card issued to a particular person by a financial institution. 142 Paragraph 219(2)(a) Omit "in respect of whose *account the information is sought", substitute "who holds the *account or to whom the *stored value card was issued". 143 Paragraph 219(2)(b) After "account", insert "or card". 144 Subsection 219(3) Omit "in question", substitute "or to whom the card was issued". 145 Paragraph 220(1)(a) Repeal the paragraph, substitute: (a) specify the name or names: (i) in which the *account is believed to be held; or (ii) of the person to whom the *stored value card was issued; and 146 Application Part 3‑4 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to monitoring orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 147 Section 338 (definition of account) Repeal the definition, substitute: account means any facility or arrangement through which a *financial institution accepts deposits or allows withdrawals and includes: (a) a facility or arrangement for: (i) a *fixed term deposit; or (ii) a safety deposit box; and (b) a credit card account; and (c) a loan account (other than a credit card account); and (d) an account held in the form of units in: (i) a cash management trust; or (ii) a trust of a kind prescribed by the regulations; and (e) a closed account. To avoid doubt, it is immaterial whether: (f) an account has a nil balance; or (g) any transactions have been allowed in relation to an account. 148 Section 338 Insert: stored value card means a portable device that is capable of storing monetary value in a form other than physical currency, or as otherwise prescribed by the regulations. Part 5—Ancillary orders Proceeds of Crime Act 2002 149 After paragraph 39(1)(c) Insert: (ca) an order directing the *suspect in relation to the restraining order to give a sworn statement to a specified person, within a specified period, setting out all of his or her *interests in property, and his or her liabilities; 150 Paragraph 39(1)(d) After "owner" (first occurring), insert "or a previous owner". 151 Paragraph 39(1)(d) After "owner" (second occurring), insert "or previous owner". 152 After paragraph 39(1)(d) Insert: (da) if the court is satisfied that there are reasonable grounds to suspect that a person (other than the owner or a previous owner) has information relevant to identifying, locating or quantifying the property—an order directing the person to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property; 153 Paragraph 39(1)(g) After "restraining order", insert ", or who has *effective control of property covered by a restraining order,". 154 After subsection 39(3) Insert: (3A) Despite subsection (3), the court must consider an application for an ancillary order without notice having been given under that subsection if: (a) the *DPP requests the court to do so; and (b) the *restraining order to which the application relates was considered, in accordance with subsection 26(4), without notice having been given. 155 After subsection 39(4) Insert: (4A) The court may, at any time before finally determining the application, direct the *DPP to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published. (4B) If the court makes the ancillary order after a request under subsection (3A), the *DPP must give written notice to any person whom the DPP reasonably believes may be affected by the order. 156 After section 39 Insert: 39A Privilege against self incrimination etc. does not apply (1) A person is not excused from giving a sworn statement under paragraph 39(1)(ca), (d) or (da) on the grounds that to do so would tend to incriminate the person or expose the person to a penalty. (2) However, in the case of a natural person, a sworn statement is not admissible in civil or criminal proceedings against the person who made the statement except: (a) in criminal proceedings for giving false or misleading information; or (b) in proceedings on an application under this Act; or (c) in proceedings ancillary to an application under this Act; or (d) in proceedings for enforcement of a *confiscation order. 39B Application to revoke ancillary order (1) A person may apply to the court that made an ancillary order under section 39 to revoke the order if: (a) the person is affected by the order; and (b) the application for the ancillary order was heard without notice having been given under subsection 39(3) following a request under subsection 39(3A). (2) The application must be made within 14 days after the person was notified of the ancillary order. (3) The applicant must give written notice of the application, and the grounds on which the revocation is sought, to any person who was entitled to make the application for the ancillary order (see subsection 39(2)). (4) The effect of the ancillary order is stayed until the court determines the application. (5) The court may revoke the ancillary order on application under subsection (1) if it considers it appropriate to do so. (6) The court may have regard to any matter it considers appropriate in determining the application. (7) If: (a) the ancillary order directed a person to do a thing within a particular period; and (b) an application is made to revoke the order under this section; the court may, if it considers it appropriate to do so, vary the order to extend that period by a specified period. 157 Section 40 (note) After "restraining order", insert ", or who has effective control of property covered by a restraining order,". 158 Application Division 5 of Part 2‑1 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to restraining orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 158A Subparagraph 266A(1)(a)(i) Omit "39(1)(d)", substitute "39(1)(ca), (d) or (da)". Part 6—Evidence Proceeds of Crime Act 2002 159 Subsection 64(2) Omit "If the application relates to a person's conviction of an *indictable offence, the court", substitute "The court". 160 Paragraph 64(2)(a) Repeal the paragraph, substitute: (a) the transcript of any proceeding against the person for an offence that constitutes *unlawful activity; and 161 Application Section 64 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to forfeiture orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 162 Subsection 138(2) Omit "If the application relates to a person's conviction of an *indictable offence, the court", substitute "The court". 163 Paragraph 138(2)(a) Repeal the paragraph, substitute: (a) the transcript of any proceeding against the person for an offence that constitutes *unlawful activity; and 164 Application Section 138 of the Proceeds of Crime Act 2002, as amended by this Part, applies in relation to pecuniary penalty orders applied for on or after the commencement of this item, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement. 165 After section 318 Insert: 318A Admissibility in proceedings of statements made at examination by absent witness Scope (1) This section applies if direct evidence by a person (the absent witness) of a matter would be admissible in a proceeding before a court: (a) on an application for an order under this Act; or (b) ancillary to such an application; or (c) for the enforcement of an order made under this Act. Admissibility of statements made at examination (2) A statement that the absent witness made at an *examination of the absent witness and that tends to establish the matter is admissible in the proceeding as evidence of the matter: (a) if it appears to the court that: (i) the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or (ii) the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure