Commonwealth: Proceeds of Crime Act 1987 (Cth)

Proceeds of Crime Act 1987 No. 87, 1987 Compilation No. 33 Compilation date: 11 May 2018 Includes amendments up to: Act No. 31, 2018 Registered: 18 May 2018 About this compilation This compilation This is a compilation of the Proceeds of Crime Act 1987 that shows the text of the law as amended and in force on 11 May 2018 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part I—Preliminary 1 Short title 2 Commencement 3 Principal objects 4 Interpretation 5 Meaning of conviction etc. of offence 6 Meaning of absconding 7 Meaning of public fraud offence and serious offence 8 Related offences 9 Meaning of dealing with property 9A Effective control of property 10 Appropriate court in relation to indictable offence 11 Act binds the Crown 12 Act to apply both within and outside Australia 13 Application 13A Application of the Criminal Code Part II—Confiscation Division 1—Application for confiscation order 14 Application for confiscation order 15 Notice of application 16 Amendment of application 17 Making of confiscation order where person has absconded 18 Procedure on application Division 2—Forfeiture orders 19 Forfeiture orders 20 Effects of forfeiture order 21 Effect of forfeiture order on third parties 22 Discharge of forfeiture order on appeal or by quashing of conviction Division 2A—Registered foreign and international forfeiture orders 23 Registered foreign and international forfeiture orders 23A Effect on third parties of registration of foreign or international forfeiture order Division 3—Pecuniary penalty orders 24 Application of Division 25 Special provisions in relation to serious offences 26 Pecuniary penalty orders 27 Assessment of pecuniary penalty 28 Court may lift corporate veil etc. 29 Amounts paid in respect of registered foreign pecuniary penalty orders Division 4—Forfeiture in case of serious offence 30 Forfeiture of all restrained property if person convicted of serious offence 30A Extension of waiting period 31 Recovery of property to which section 30 applies 32 Effect of quashing of conviction Division 5—Miscellaneous 33 Person with interest in forfeited property may buy back the interest 34 Buying out other interests in forfeited property Part IIA—Confiscated Assets Special Account 34A Confiscated Assets Special Account 34B Credits to Confiscated Assets Special Account 34C Debits from the Confiscated Assets Special Account 34D Debiting balance of distributable funds standing to the credit of Confiscated Assets Special Account 34E Determinations by Official Trustee about suspended and distributable funds Part III—Control of property liable to confiscation Division 1—Search powers 35 Powers to search for, and seize, tainted property 36 Search warrants in relation to tainted property 37 Search warrants may be granted by telephone 38 Searches in emergencies 39 Responsibility for seized property 40 Return of seized property 41 Issue of search warrants by Territory courts in relation to interstate indictable offences 42 Search for and seizure of tainted property in relation to foreign offences Division 2—Restraining orders 43 Restraining orders 44 Grounds for making restraining order 45 Notice of application for restraining order 45A Extension of certain restraining orders 46 Persons who may appear and adduce evidence 47 Notice of restraining orders 48 Court may make further orders 48A Order for taxation of legal expenses to be met out of restrained property 49 Official Trustee to discharge pecuniary penalty 50 Charge on property subject to restraining order 51 Registration of restraining orders 52 Contravention of restraining orders 54 Protection of Official Trustee from personal liability in certain cases 55 Costs etc. payable to Official Trustee 56 Court may revoke restraining orders 57 When restraining order ceases to be in force 58 Notice of applications under this Division 59 Interim restraining order may be made in respect of foreign offence 60 Registered foreign restraining orders—general 61 Registered foreign restraining orders—court may direct Official Trustee to take custody and control of property 62 Registered foreign restraining orders—undertakings 63 Discharge of certain registered foreign pecuniary penalty orders 64 Registered foreign restraining orders—charge on property subject to order 65 Registered foreign restraining orders—time when order ceases to be in force Part IV—Information gathering powers Division 1—Production orders 66 Production orders 67 Variation of production orders 68 Failure to comply with production order 69 Production orders in relation to foreign offences Division 2—Search powers 70 Powers to search for, and seize, documents relevant to locating etc. property 71 Search warrant for location etc. of property 72 Search warrants in relation to foreign offences Division 3—Monitoring orders 73 Monitoring orders 74 Existence and operation of monitoring order not to be disclosed 75 Monitoring orders in relation to foreign offences Part V—Offences Division 3—Miscellaneous 84 Prosecution of offences 85 Conduct by directors, employees or agents Part VI—Enforcement of State orders in Territories Division 1—Interstate restraining orders 86 Registration of interstate restraining orders 87 Effect of registration 88 Duration of registration 89 Cancellation of registration 90 Charge on property subject to registered interstate restraining order 91 Powers of Official Trustee in relation to interstate restraining orders Division 2—Interstate forfeiture orders 92 Registration of interstate forfeiture orders 93 Effect of registration 94 Duration of registration 95 Cancellation of registration Division 3—Miscellaneous 96 Interim registration of facsimile copies Part VII—Miscellaneous 96A Organised fraud orders 97 Dealings with forfeited property 98 State and Territory courts to have jurisdiction 99 Standard of proof 100 Appeals 101 Costs 102 Legal assistance 102A Indemnification of Official Trustee 103 Operation of other laws not affected 104 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to provide for confiscation of the proceeds of crime, and for related purposes Part I—Preliminary 1 Short title This Act may be cited as the Proceeds of Crime Act 1987. 2 Commencement This Act shall come into operation on the day on which it receives the Royal Assent. 3 Principal objects (1) The principal objects of this Act are: (a) to deprive persons of the proceeds of, and benefits derived from, the commission of offences against the laws of the Commonwealth or the Territories; (b) to provide for the forfeiture of property used in or in connection with the commission of such offences; and (c) to enable law enforcement authorities effectively to trace such proceeds, benefits and property. (2) The objects of this Act include the objects of: (a) providing for the enforcement in the Territories of forfeiture orders, pecuniary penalty orders and restraining orders made in respect of offences against the laws of the States; (b) facilitating the enforcement in Australia, pursuant to the Mutual Assistance Act, of forfeiture orders, pecuniary penalty orders and restraining orders made in respect of foreign serious offences; and (c) assisting foreign countries, pursuant to the Mutual Assistance Act, to trace the proceeds of, benefits derived from and property used in or in connection with the commission of foreign serious offences. 4 Interpretation (1) In this Act, unless the contrary intention appears: ACC means the Australian Crime Commission. account means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for: (a) a fixed term deposit; and (b) a safety deposit box. ADI (authorised deposit‑taking institution) means: (a) a body corporate that is an ADI for the purposes of the Banking Act 1959; or (b) the Reserve Bank of Australia; or (c) a person who carries on State banking within the meaning of paragraph 51(xiii) of the Constitution. AFP member means a member or special member of the Australian Federal Police. agent includes, if the agent is a corporation, the officers and agents of the corporation. appropriate officer means the DPP or a person in a class of persons declared by the regulations to be within this definition. approved means approved by the Minister in writing for the purposes of the provision in which the term occurs. Australia, when used in a geographical sense, includes the external Territories. Bankruptcy Act means the Bankruptcy Act 1966. benefit includes service or advantage. commencement of the Proceeds of Crime Act 2002 means the commencement of sections 3 to 338 of the Proceeds of Crime Act 2002. Commissioner means the Commissioner of the Australian Federal Police. Confiscated Assets Special Account means the Account continued in existence under section 34A. confiscation order means a forfeiture order or a pecuniary penalty order. co‑operative housing society means a society registered or incorporated as a co‑operative housing society or similar society under a law of a State or Territory. corresponding law means a law of a State that is declared by the regulations to be a law that corresponds to this Act. Crimes Act means the Crimes Act 1914. criminal investigation, in relation to a foreign serious offence, has the same meaning as in the Mutual Assistance Act. criminal proceeding, in relation to a foreign serious offence, has the same meaning as in the Mutual Assistance Act. Customs Act means the Customs Act 1901. Customs officer means an officer of Customs within the meaning of the Customs Act. director, in relation to a financial institution or a corporation, means: (a) if the institution or corporation is a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory—a constituent member of the body corporate; (b) any person occupying or acting in the position of director of the institution or corporation, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and (c) any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act. distributable funds means amounts standing to the credit of the Confiscated Assets Special Account that is: (a) identified as distributable funds in accordance with the regulations (other than such money as is identified by the Official Trustee under subsection 34E(2) as suspended funds); or (b) identified by the Official Trustee under subsection 34E(3) as distributable funds. DPP means the Director of Public Prosecutions. encumbrance, in relation to property, includes any interest, mortgage, charge, right, claim or demand in respect of the property. equitable sharing program means an arrangement under which any or all of the following happen: (a) the Commonwealth shares with a participating State a proportion of any proceeds of any unlawful activity recovered under a Commonwealth law, where, in the opinion of the Minister, that State has made a significant contribution to the recovery of those proceeds or to the investigation or prosecution of the relevant unlawful activity; (b) each participating State shares with the Commonwealth any proceeds resulting from a breach of the criminal law of that State where, in the opinion of the appropriate Minister of that State, officers of a law enforcement agency of the Commonwealth have made a significant contribution to the recovery of those proceeds; (c) the Commonwealth shares with a foreign country a proportion of any proceeds of any unlawful activity recovered under a Commonwealth law where, in the opinion of the Minister, the foreign country has made a significant contribution to the recovery of those proceeds or to the investigation or prosecution of the unlawful activity. executive officer, in relation to a financial institution or a corporation, means any person, by whatever name called and whether or not he or she is a director of the institution or corporation, who is concerned, or takes part, in the management of the institution or corporation. facsimile copy means a copy obtained by facsimile transmission. financial institution means: (a) an ADI; or (b) a co‑operative housing society; or (d) a body corporate that is, or that, if it had been incorporated in Australia, would be, a financial corporation within the meaning of paragraph 51(xx) of the Constitution. fixed term deposit means an interest bearing deposit lodged for a fixed period. foreign forfeiture order has the same meaning as in the Mutual Assistance Act. foreign pecuniary penalty order has the same meaning as in the Mutual Assistance Act. foreign restraining order has the same meaning as in the Mutual Assistance Act. foreign serious offence has the same meaning as in the Mutual Assistance Act. forfeiture order means an order under subsection 19(1). GBE means a prescribed government business enterprise. indictable offence means an offence against a law of the Commonwealth, or a law of a Territory, that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence). interest, in relation to property, means: (a) a legal or equitable estate or interest in the property; or (b) a right, power or privilege in connection with the property; whether present or future and whether vested or contingent. interstate forfeiture order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition. interstate indictable offence means an offence against a law of a State, being an offence in relation to which an interstate forfeiture order or an interstate pecuniary penalty order may be made under a corresponding law of that State. interstate pecuniary penalty order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition. interstate restraining order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition. law enforcement authority means the Australian Federal Police or the ACC. magistrate includes a justice of the peace. magistrate's court means a court of summary jurisdiction constituted by a Stipendiary Magistrate, a Police Magistrate or a Special Magistrate. Mutual Assistance Act means the Mutual Assistance in Criminal Matters Act 1987. narcotic substance means: (a) a narcotic substance within the meaning of the Customs Act; or (b) a substance declared by the regulations to be a substance to which this definition applies. officer means a director, secretary, executive officer or employee. Official Trustee means the Official Trustee in Bankruptcy. ordinary indictable offence means an indictable offence that is not a serious offence. pecuniary penalty order means an order under subsection 26(1). penalty amount, in relation to a pecuniary penalty order against a person, means the amount that the person is liable to pay the Commonwealth under the order. petition means a petition under the Bankruptcy Act. police officer means: (a) an AFP member; or (b) a member of the police force of a State or Territory. premises includes: (a) a structure, building, aircraft, vehicle or vessel; (b) a place (whether enclosed or built upon or not); and (c) a part of premises (including premises of a kind referred to in paragraph (a) or (b)). prescribed officer means an SES employee or acting SES employee in the Department. prescribed time, in relation to a warrant issued under Division 1 of Part III in relation to property, means: (a) where an information is laid in respect of the relevant offence either before the warrant is issued or within 48 hours after the warrant is issued—the day that is one month after the date of the issue of the warrant; or (b) in any other case—the time that is 48 hours after the time of the issue of the warrant. proceeds, in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence. proceeds of confiscated assets means the following: (a) the remainder of the proceeds referred to in paragraph 9A(c) of the Crimes Act 1914; (b) the money referred to in paragraph 208DA(3)(a) of the Customs Act 1901; (c) the remainder of the proceeds referred to in paragraph 208DA(3)(b) of the Customs Act 1901; (d) the amount referred to in subsection 243B(4) of the Customs Act 1901; (e) the remainder of the money referred to in paragraph 243G(6)(a) of the Customs Act 1901; (f) the remainder of the proceeds referred to in paragraph 243G(6)(b) of the Customs Act 1901; (g) the remainder of the money referred to in subparagraph 20(3)(b)(i); (h) the remainder of the proceeds referred to in subparagraph 20(3)(b)(ii); (i) the amount referred to in subsection 26(8); (j) the remainder of the money referred to in subparagraph 30(4)(b)(i); (k) the remainder of the proceeds referred to in subparagraph 30(4)(b)(ii); (l) an amount referred to in subsection 33(1) or (2); (m) an amount referred to in paragraph 34(f); (n) the remainder of the money referred to in paragraph 49(6)(a); (o) the remainder of the proceeds referred to in paragraph 49(6)(b); (p) the remainder of the money referred to in paragraph 63(4)(a); (q) the remainder of the proceeds referred to in paragraph 63(4)(b). production order means an order under section 66. property means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible and includes an interest in any such real or personal property. property‑tracking document, in relation to an offence, means: (a) a document relevant to: (i) identifying, locating or quantifying property of a person who committed the offence; or (ii) identifying or locating any document necessary for the transfer of property of a person who committed the offence; or (b) a document relevant to: (i) identifying, locating or quantifying tainted property in relation to the offence; or (ii) identifying or locating any document necessary for the transfer of tainted property in relation to the offence. registrable property means property title to which is passed by registration on a register kept pursuant to a provision of any law of the Commonwealth or of a State or Territory. relevant application period, in relation to a person's conviction of an indictable offence, means the period of 6 months after: (a) where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(a)—the day on which the person was convicted of the offence; (b) where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(b)—the day on which the person was discharged without conviction; (c) where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(c)—the day on which the court took the offence into account in passing sentence for the other offence referred to in that paragraph; or (d) where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(d)—the day on which the person is to be taken to have absconded in connection with the offence. relevant offence, in relation to tainted property, means an offence by reason of the commission of which the property is tainted property. relevant Supreme Court means: (a) in relation to property seized under a warrant issued under Division 1 of Part III—the Supreme Court of the State or Territory in which an information in respect of the relevant offence has been, or is to be, laid; (b) in relation to property seized under section 38—the Supreme Court of the State or Territory in which an information in respect of the relevant offence has been laid; or (c) in relation to a person's conviction of an offence or the charging, or proposed charging, of a person with an offence—the Supreme Court of the State or Territory in which the person has been convicted or has been, or is to be, charged with the offence. restraining order means an order under subsection 43(2). State includes the Australian Capital Territory and the Northern Territory. State indictable offence means an offence against a law of a State that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence). suspended funds means amounts standing to the credit of the Confiscated Assets Special Account that is: (a) identified as suspended funds in accordance with the regulations (other than such money as is identified by the Official Trustee under subsection 34E(3) as distributable funds); or (b) identified by the Official Trustee under subsection 34E(2) as suspended funds. tainted property, in relation to an offence, means: (a) property used in, or in connection with, the commission of the offence; or (b) proceeds of the offence; and when used without reference to a particular offence means tainted property in relation to an indictable offence. Territory does not include the Australian Capital Territory or the Northern Territory. unlawful activity means an act or omission that constitutes an offence against a law in force in the Commonwealth, a State, a Territory or a foreign country. (2) A reference in this Act to a person being charged with an offence is a reference to an information being laid against the person for the offence whether or not: (a) a summons to require the attendance of the person to answer the information has been issued; or (b) a warrant for the apprehension of the person has been issued. (3) A reference in this Act to a benefit derived by a person includes a reference to: (a) a benefit derived, directly or indirectly, by the person; and (b) a benefit derived, directly or indirectly, by another person at the request or direction of the first person. (3A) For the purposes of this Act, in determining whether a person has derived substantial benefit from the commission of 2 or more public fraud offences, have regard to the aggregate of the benefits derived by the person from the commission of those offences. (4) A reference in this Act to the property of a person includes a reference to property in respect of which the person has the beneficial interest. (5) A reference in this Act to a criminal offence is a reference to an offence against a law of the Commonwealth or of a Territory. (6) Without prejudice to its effect by virtue of subsection (5), this Act has effect as if a reference in this Act to a criminal offence included a reference to an offence against a law of a State. (7) A reference in this Act to acquiring property, or an interest in property, for sufficient consideration is a reference to acquiring the property or the interest for a consideration that is sufficient and that, having regard solely to commercial considerations, reflects the value of the property or the interest. (8) For the purposes of this Act, a person shall not be regarded as a director within the meaning of paragraph (c) of the definition of director in subsection (1) by reason only that the directors act on advice given by that person in the proper performance of the functions attaching to his or her professional capacity or to his or her business relationship with the directors of the financial institution or corporation, as the case may be. 5 Meaning of conviction etc. of offence (1) For the purposes of this Act, a person shall be taken to be convicted of an offence if: (a) the person is convicted, whether summarily or on indictment, of the offence; (b) the person is charged with, and found guilty of, the offence but is discharged without conviction; (c) a court, with the consent of the person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another offence; or (d) the person absconds in connection with the offence. (2) For the purposes of this Act, a person's conviction of an offence shall be taken to be quashed: (a) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(a)—if the conviction is quashed or set aside; (b) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(b)—if the finding of guilt is quashed or set aside; (c) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(c)—if either of the following events occur: (i) the person's conviction of the other offence referred to in that paragraph is quashed or set aside; (ii) the decision of the court to take the offence into account in passing sentence for that other offence is quashed or set aside; or (d) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(d)—if, after the person is brought before a court in respect of the offence, the person is discharged in respect of the offence or a conviction of the person for the offence is quashed or set aside. (3) For the purposes of this Act, a person shall be taken to have been convicted of an offence in a particular State or Territory if: (a) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(a)—the person was convicted of the offence in a court in that State or Territory; (b) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(b)—the person was discharged without conviction by a court in that State or Territory; (c) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(c)—the offence was taken into account by a court in that State or Territory in passing sentence on the person for the other offence referred to in that paragraph; or (d) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(d)—the information alleging the commission of the offence by the person was laid in that State or Territory. (4) For the purposes of this Act, where a person is to be taken to have been convicted of an offence in a particular State or Territory by reason of paragraph (3)(d), the person shall be taken to have been so convicted before the Supreme Court of that State or Territory. (5) A reference in this Act, in relation to a person's conviction of an offence, to the commission of the offence shall, where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(d), be read as a reference to the alleged commission of the offence by the person. (6) This section does not apply to a foreign serious offence. 6 Meaning of absconding For the purposes of this Act (except section 17), a person shall be taken to abscond in connection with an offence if and only if: (a) an information is laid alleging the commission of the offence by the person; (b) a warrant for the arrest of the person is issued in relation to that information; and (c) one of the following occurs: (i) the person dies without the warrant being executed; (ii) at the end of the period of 6 months commencing on the day on which the warrant is issued: (A) the person cannot be found; or (B) the person is, for any other reason, not amenable to justice and, if the person is outside Australia, extradition proceedings are not on foot; (iii) at the end of the period of 6 months commencing on the day on which the warrant is issued: (A) the person is, by reason of being outside Australia, not amenable to justice; and (B) extradition proceedings are on foot; and subsequently those proceedings terminate without an order for the person's extradition being made. 7 Meaning of public fraud offence and serious offence (1) In this Act: public fraud offence means any of the following: (a) an offence against section 134.1, 134.2, 135.1 or 135.4 of the Criminal Code; (b) an offence against repealed section 29D or 86A of the Crimes Act committed after the commencement of this Act; (c) an offence against section 5, 6, 7 or 8 of the Crimes (Taxation Offences) Act 1980 committed after the commencement of this Act; (d) an ancillary offence in relation to an offence covered by paragraph (b) or (c). serious offence means: (a) a serious narcotics offence; or (b) a money laundering offence in relation to the proceeds of a serious narcotics offence; or (c) an ancillary offence in relation to an offence covered by paragraph (a) or (b); or (d) an offence that is the subject of a declaration under section 96A. (1A) Paragraph (d) of the definition of serious offence in subsection (1) has effect subject to subsections 96A(2), (4) and (6). (2) In this section: ancillary offence, in relation to an offence (in this definition called the main offence), means: (a) an offence of conspiring to commit the main offence; (b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the main offence; (c) an offence of receiving or assisting another person in order to enable the person to escape punishment for, or to dispose of the proceeds of, the main offence; or (d) an offence of attempting to commit the main offence. money laundering offence means an offence against section 81. possession includes possession for supply. production includes growing and manufacture. serious narcotics offence means an offence: (a) constituted by the production, possession, supply, importation or export of a narcotic substance; and (b) involving a quantity of the narcotic substance that is equal to or greater than the trafficable quantity applicable to the narcotic substance. trafficable quantity, in relation to a narcotic substance, means: (a) if paragraph (b) does not apply—a trafficable quantity of the substance within the meaning of the Customs Act; or (b) if the law against which the offence is committed is not the Customs Act and that law includes references to trafficable quantity—a trafficable quantity of the substance within the meaning of that law. (3) To avoid doubt, express references in this section to ancillary offences do not imply that section 11.6 of the Criminal Code has no application to a particular provision of this Act. 8 Related offences For the purposes of this Act, 2 offences are related to one another if the elements of the 2 offences are substantially the same acts or omissions. 9 Meaning of dealing with property For the purposes of this Act, dealing with property of a person includes: (a) if a debt is owed to that person—making a payment to any person in reduction of the amount of the debt; (b) removing the property from Australia; and (c) receiving or making a gift of the property. 9A Effective control of property (1) Property, or an interest in property, may be subject to the effective control of a person within the meaning of this Act whether or not the person has: (a) a legal or equitable estate or interest in the property; or (b) a right, power or privilege in connection with the property. (2) Without limiting the generality of any other provision of this Act, in determining: (a) whether or not property, or an interest in property, is subject to the effective control of a person; or (b) whether or not there are reasonable grounds to believe that property, or an interest in property, is subject to the effective control of a person; regard may be had to: (c) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property; (d) a trust that has a relationship to the property; and (e) family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (c) or trusts of the kind referred to in paragraph (d), and other persons. 10 Appropriate court in relation to indictable offence (1) Where a person is convicted of an offence before the Supreme Court of a State or Territory, that Supreme Court is the appropriate court in relation to the conviction. (2) Where a person is convicted of an offence before any other court of a State or Territory, the court before which the person was convicted and the Supreme Court of that State or Territory are both appropriate courts in relation to the conviction. 11 Act binds the Crown (1) This Act binds the Crown in each of its capacities. (2) This Act does not make the Crown liable to be prosecuted for an offence. 12 Act to apply both within and outside Australia This Act applies throughout the whole of Australia and also applies outside Australia. 13 Application (1) Subject to subsection (2), Parts II and III (other than section 59) do not apply to a person's conviction of an offence if the person was convicted of the offence before the commencement of this Act. (2) Subsection (1) does not apply in relation to interstate forfeiture orders, interstate pecuniary penalty orders, interstate restraining orders, foreign forfeiture orders, foreign pecuniary penalty orders or foreign restraining orders. (3) Subject to subsection (1) this Act applies to: (a) an offence committed, or believed to have been committed, at any time (whether before or after the commencement of this Act); and (b) a person's conviction at any time of an offence (whether before or after the commencement of this Act). 13A Application of the Criminal Code Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. Part II—Confiscation Division 1—Application for confiscation order 14 Application for confiscation order (1) Where a person is convicted of an indictable offence, the DPP may, subject to subsections (2), (3) and (4) apply to an appropriate court for one or both of the following orders: (a) a forfeiture order against property that is tainted property in respect of the offence; (b) a pecuniary penalty order against the person in respect of benefits derived by the person from the commission of the offence. (2) The DPP: (a) is not empowered to make an application after the end of the relevant application period in relation to the conviction; and (b) is not empowered to make an application after the commencement of the Proceeds of Crime Act 2002 unless some or all of the property which could be used to satisfy the order is property in respect of which a restraining order is in force. (3) The DPP is not empowered to make an application to a court under subsection (1) for a forfeiture order against property in respect of a person's conviction of an offence if: (a) an application has previously been made: (i) under that subsection; (ii) under another law of the Commonwealth; or (iii) under a law of a Territory; for forfeiture or condemnation of the property in respect of the offence; and (b) the application has been finally determined on the merits; except with the leave of the court. (4) The DPP is not empowered to make an application to a court under subsection (1) for a pecuniary penalty order against a person in respect of benefits derived by the person from the commission of an offence if: (a) an application has previously been made: (i) under that subsection; (ii) under another law of the Commonwealth; or (iii) under a law of a Territory; for a pecuniary penalty in respect of those benefits derived by the person from the commission of the offence; and (b) the application has been finally determined on the merits; except with the leave of the court. (5) The court shall not grant leave under subsection (3) or (4) unless satisfied that: (a) the tainted property, or the benefit, to which the new application relates was identified only after the first application was determined; (b) necessary evidence became available only after the first application was determined; or (c) the court is otherwise satisfied that it is in the interests of justice to grant the leave. (6) An application may be made under this section in relation to one or more indictable offences. (7) An application may be made under this section for a pecuniary penalty order in respect of an offence even if section 30 applies to the offence. 15 Notice of application (1) Where the DPP applies for a forfeiture order against property in respect of a person's conviction of an offence: (a) the DPP shall give written notice of the application to the person and to any other person the DPP has reason to believe may have an interest in the property; (b) the person, and any other person who claims an interest in the property, may appear and adduce evidence at the hearing of the application; and (c) the court may, at any time before the final determination of the application, direct the DPP to give or publish notice of the application to a specified person or class of persons, in the manner and within the time that the court considers appropriate. (2) Where the DPP applies for a pecuniary penalty order against a person: (a) the DPP shall give the person written notice of the application; and (b) the person may appear and adduce evidence at the hearing of the application. 16 Amendment of application (1) Subject to subsection (2), where the DPP applies for a confiscation order, the court hearing the application may amend the application: (a) on application by the DPP; or (b) with the consent of the DPP. (2) The court shall not amend the application so as to: (a) include additional property in an application for a forfeiture order; or (b) include an additional benefit in an application for a pecuniary penalty order; unless the court is satisfied that: (c) the property or benefit was not reasonably capable of identification when the application was originally made; or (d) necessary evidence became available only after the application was originally made. (3) Where: (a) the DPP applies to amend an application for a forfeiture order; and (b) the amendment would have the effect of including additional property in the application for the forfeiture order; then: (c) the DPP shall give written notice of the application to amend to any person who the DPP has reason to believe may have an interest in property to be included in the application for the forteiture order; and (d) any person who claims an interest in the property to be included in the application for the forfeiture order may appear and adduce evidence at the hearing of the application to amend. (4) Where: (a) the DPP applies to amend an application for a pecuniary penalty order against a person; and (b) the effect of the amendment would be to include an additional benefit in the application for the pecuniary penalty order; the DPP shall give the person written notice of the application to amend. 17 Making of confiscation order where person has absconded Where a person is, by reason of paragraph 5(1)(d), to be taken to have been convicted of an indictable offence, a court shall not make a confiscation order in reliance on the person's conviction of the offence unless the court is satisfied, on the balance of probabilities, that the person has absconded and: (a) the person has been committed for trial for the offence; or (b) the court is satisfied, having regard to all the evidence before the court, that a reasonable jury, properly instructed, could lawfully find the person guilty of the offence. 18 Procedure on application (1) Where an application is made to a court for a confiscation order in respect of a person's conviction of an offence, the court may, in determining the application, have regard to the transcript of any proceeding against the person for the offence and to the evidence given in any such proceeding. (2) Where: (a) an application is made for a confiscation order in respect of a person's conviction of an offence; (b) the application is made to the court before which the person was convicted; and (c) the court has not, when the application is made, passed sentence on the person for the offence; the court may, if satisfied that it is reasonable to do so in all the circumstances, defer passing sentence until it has determined the application for the confiscation order. (3) Where: (a) a person is to be taken to have been convicted of an offence by reason of paragraph 5(1)(c); and (b) an application is made to a court for a confiscation order in respect of the conviction; the reference in subsection (1) to a proceeding against the person for the offence includes a reference to a proceeding against the person for the other offence referred to in that paragraph. Division 2—Forfeiture orders 19 Forfeiture orders (1) Where: (a) the DPP applies to a court for an order under this section against property in respect of a person's conviction of an offence; and (b) the court is satisfied that the property is tainted property in respect of the offence; the court may, if it considers it appropriate, order that the property, or such of the property as is specified by the court in the order, is forfeited to the Commonwealth. (2) Where the court orders that property (other than money) is forfeited to the Commonwealth, the court shall specify in the order the amount that it considers to be the value of the property at the time when the order is made. (3) In considering whether it is appropriate to make a forfeiture order in respect of particular property, the court may have regard to: (a) any hardship that may reasonably be expected to be caused to any person by the operation of such an order; and (b) the use that is ordinarily made, or was intended to be made, of the property. (4) In considering whether it is appropriate to make a forfeiture order under subsection (1) in respect of particular property, the court may also have regard to the gravity of the offence concerned. (5) A court that makes a forfeiture order against property may, if it is satisfied that: (a) it would not be contrary to the public interest for a person's interest in the property to be transferred to the person; and (b) there is no other reason why the person's interest in the property should not be transferred to that person; by order: (c) declare the nature, extent and value (as at the time when the order is made) of the interest; and (d) declare that the forfeiture order may, to the extent to which it relates to the interest, be discharged as provided by section 33. (6) Where: (a) the DPP applies for a forfeiture order against particular property in reliance on a person's conviction of an offence; and (b) evidence is given, at the hearing of the application, that the property was in the person's possession at the time of, or immediately after, the commission of the offence; then: (c) if no evidence is given that tends to show that the property was not used in, or in connection with, the commission of the offence—the court shall presume that the property was used in, or in connection with, the commission of the offence; or (d) in any other case—the court shall not make a forfeiture order against the property unless it is satisfied that the property was used in, or in connection with, the commission of the offence. (7) Where a court makes a forfeiture order, the court has power to give all directions that are necessary or convenient for giving effect to the order. (8) Without limiting the generality of subsection (7), where a court makes a forfeiture order against registrable property, the court may direct an officer of the court to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property. 20 Effects of forfeiture order (1) Subject to subsection (2), where a court makes a forfeiture order against property, the property vests absolutely in the Commonwealth. (2) Where a forfeiture order is made against registrable property: (a) the property vests in equity in the Commonwealth but does not vest in the Commonwealth at law until the applicable registration requirements have been complied with; (b) the Commonwealth is entitled to be registered as owner of the property; and (c) the Minister has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to obtain the registration of the Commonwealth as owner, including, without limiting the generality of this, the execution of any instrument required to be executed by a person transferring an interest in property of that kind. (2A) If a forfeiture order has been made against registrable property: (a) the DPP has power, on behalf of the Commonwealth, to do anything necessary or convenient to give notice of, or otherwise protect, the equitable interest of the Commonwealth in the property; and (b) any such action by or on behalf of the Commonwealth is not a dealing for the purposes of paragraph (3)(a). (3) Where a court makes a forfeiture order against property: (a) the property shall not, except with the leave of the court and in accordance with any directions of the court, be disposed of, or otherwise dealt with, by or on behalf of the Commonwealth, before the relevant time; and (b) if, at the relevant time, the order has not been discharged, then, subject to any direction under subsection (3A), the Official Trustee must, as soon as practicable after the relevant time: (i) if the property is money—after paying the Official Trustee's remuneration and other costs, charges and expenses of the kind referred to in subsection 55(1) payable to or incurred by it in connection with the restraining order, credit the amount of the remainder of the money to the Confiscated Assets Special Account as required by section 34B; and (ii) if the property is not money—sell or otherwise dispose of the property and, after paying the Official Trustee's remuneration and other costs, charges and expenses of the kind referred to in subsection 55(1) payable to or incurred by it in connection with the restraining order or the sale or disposition, credit the amount of the remainder of those proceeds to the Confiscated Assets Special Account as required by section 34B. (3A) Where a court makes a forfeiture order against property, the Minister, or a prescribed officer authorised by the Minister for the purposes of this subsection, may, at or after the relevant time but before the property is dealt with under paragraph (3)(b), direct that the property be disposed of, or otherwise dealt with, as specified in the direction. (4) Without limiting the generality of subsection (3A), the directions that may be given pursuant to that subsection include a direction that property is to be disposed of in accordance with the provisions of a law specified in the direction. (5) A reference in this section to the appeal period in relation to a person's conviction of an offence is: (a) in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(b)—a reference to the appeal period in relation to the finding of the person guilty of the offence; and (b) in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(c)—a reference to the appeal period in relation to the person's conviction of the other offence referred to in that paragraph. (6) In this section: appeal period, in relation to a decision of a court or a finding, means the period ending: (a) if the period provided for the lodging of an appeal against the decision or finding has ended without such an appeal having been lodged—at the end of that period; or (b) if an appeal against the decision or finding has been lodged—when the appeal lapses or is finally determined. relevant time, in relation to a forfeiture order made in reliance on a person's conviction of an offence, means: (a) the end of the appeal period in relation to the making of the forfeiture order; or (b) the end of the appeal period in relation to the person's conviction; whichever is the later. 21 Effect of forfeiture order on third parties (1) Where an application is made for a forfeiture order against particular property, a person who claims an interest in the property may apply, before the forfeiture order is made, to the court for an order under subsection (6). (2) Subject to subsections (3) and (7), where a court makes a forfeiture order against property, a person who claims an interest in the property may apply to the court for an order under subsection (6). (3) A person who: (a) was given notice of the application for the forfeiture order; or (b) appeared at the hearing of the application; shall not make an application to a court under subsection (2) except with the leave of the court. (4) The court may grant the person leave to apply if the court is satisfied that there are special grounds for granting the leave. (5) Without limiting the generality of subsection (4), the court may grant a person leave to apply if the court is satisfied that: (a) the person, for a good reason, did not attend the hearing of the application for the forfeiture order although the person had notice of the application; or (b) particular evidence proposed to be adduced by the person in connection with the application under subsection (2) was not available to the person at the time of the hearing of the application for the forfeiture order. (6) If a person applies to a court for an order under this subsection in respect of the applicant's interest in property and the court is satisfied that: (a) the applicant was not, in any way, involved in the commission of an offence in respect of which forfeiture of the property is sought, or the forfeiture order against the property was made, as the case requires; and (b) if the applicant acquired the interest at the time of or after the commission of such an offence—the applicant acquired the interest: (i) for sufficient consideration; and (ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time of the acquisition, tainted property; the court shall make an order: (c) declaring the nature, extent and value (as at the time when the order is made) of the applicant's interest; and (d) either: (i) if the interest is still vested in the Commonwealth—directing the Commonwealth to transfer the interest to the applicant; or (ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c). (7) Subject to subsection (8), an application under subsection (2) shall be made before the end of the period of 6 months commencing on the day on which the forfeiture order is made. (8) Where a forfeiture order is made against property, the court that made the forfeiture order may grant a person claiming an interest in the property leave to apply under subsection (2) outside the period referred to in subsection (7) if the court is satisfied that the person's failure to apply within that period was not due to any neglect on the part of the person. (9) A person who makes an application under subsection (1) or (2) in respect of property shall give notice to the DPP and the Minister, as prescribed, of the making of the application. (10) The DPP shall be a party to any proceedings upon an application under subsection (1) or (2) and the Minister may intervene in any such proceedings. 22 Discharge of forfeiture order on appeal or by quashing of conviction (1) Where: (a) a court makes a forfeiture order against property in reliance on a person's conviction of an offence; and (b) the conviction is subsequently quashed; the quashing of the conviction discharges the order. (1A) This section does not apply if the conviction is quashed after the commencement of the Proceeds of Crime Act 2002. Note: Division 6 of Part 2‑2 of the Proceeds of Crime Act 2002 applies in relation to convictions quashed after that commencement: see subitem 21(1) of Schedule 7 to the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002. (2) Where a forfeiture order against property is discharged as provided by subsection (1) or by a court hearing an appeal against the making of the order, the DPP shall: (a) as soon as practicable after the discharge of the order, give written notice of the discharge of the forfeiture order to any person the DPP has reason to believe may have had an interest in the property immediately before the making of the forfeiture order; and (b) if required to do so by a court—give or publish notice of the discharge of the forfeiture order to a specified person or class of persons in the manner and within the time that the court considers appropriate. (3) A notice under subsection (2) shall include a statement to the effect that a person claiming an interest in the property may apply under subsection (4) for the transfer of the interest to the person. (4) Where a forfeiture order against property is discharged as provided by subsection (1) or by a court hearing an appeal against the making of the order, any person who claims to have had an interest in the property immediately before the making of the forfeiture order may apply to the Minister, in writing, for the transfer of the interest to the person and, on receipt of an application from a person who had an interest in the property immediately before the making of the forfeiture order: (a) if the interest is still vested in the Commonwealth—the Minister shall arrange for the interest to be transferred to the person; or (b) in any other case—there is payable to the person an amount equal to the value of the interest. (5) Where the Minister is required by this section to arrange for property to be transferred to a person, the Minister has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, without limiting the generality of this, the execution of any instrument and the making of an application for registration of an interest in the property on any appropriate register. Division 2A—Registered foreign and international forfeiture orders 23 Registered foreign and international forfeiture orders (1) If: (a) a foreign forfeiture order is registered in a court in Australia under the Mutual Assistance Act; or (b) an order is registered in a court in Australia under section 45 of the International War Crimes Tribunals Act 1995; Division 2 applies in relation to the order as if subsections 19(5) and 20(3), (4), (5) and (6) and sections 21 and 22 were omitted. (2) If: (a) a foreign forfeiture order against property is registered in a court in Australia under the Mutual Assistance Act; or (b) an order against property is registered in a court in Australia under section 45 of the International War Crimes Tribunals Act 1995; the property may, subject to section 23A, be disposed of, or otherwise dealt with, in accordance with any direction of the Minister administering the Mutual Assistance Act or of a person authorised by that Minister in writing for the purposes of this subsection. 23A Effect on third parties of registration of foreign or international forfeiture order (1) This section applies where, after the commencement of this section, a court in Australia registers under the Mutual Assistance Act a foreign forfeiture order against property. (1A) This section also applies if a court registers under section 45 of the International War Crimes Tribunals Act 1995 an order against property. (2) On registering the foreign or international forfeiture order, the court shall direct the DPP to give or publish notice of the registration: (a) to specified persons (other than a person convicted of a foreign or international offence in respect of which the order was made) the court has reason to believe may have an interest in the property; and (b) in the manner and within the time the court considers appropriate. (3) A person (other than a person convicted of a foreign or international offence in respect of which the foreign or international forfeiture order was made) who claims an interest in the property may apply to the court for an order under subsection (7). (4) A person who was given notice of, or appeared at, the hearing held in connection with the making of the foreign or international forfeiture order is not entitled, except with the leave of the court, to apply under subsection (3). (5) The court may grant leave under subsection (4) if satisfied that there are special grounds for doing so. (6) Without limiting the generality of subsection (5), the court may grant a person leave under subsection (4) if the court is satisfied that: (a) the person, for a good reason, did not attend the hearing referred to in subsection (4) although the person had notice of the hearing; or (b) particular evidence that the person proposes to adduce in connection with the proposed application under subsection (3) was not available to the person at the time of the hearing referred to in subsection (4). (7) If, on an application for an order under this subsection, the court is satisfied that: (a) the applicant was not, in any way, involved in the commission of a foreign or international offence in respect of which the foreign or international forfeiture order was made; and (b) if the applicant acquired his, her or its interest in the property at the time of or after the commission of such an offence—the applicant acquired the interest: (i) for sufficient consideration; and (ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time of the acquisition, tainted property in relation to a foreign or international offence; the court shall make an order: (c) declaring the nature, extent and value (as at the time when the order is made) of the applicant's interest in the property; and (d) either: (i) directing the Commonwealth to transfer the interest to the applicant; or (ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c). (8) Subject to subsection (9), an application under subsection (3) shall be made before the end of 6 weeks beginning on the day when the foreign or international forfeiture order is registered in the court. (9) The court may grant a person leave to apply under subsection (3) outside the period referred to in subsection (8) if the court is satisfied that the person's failure to apply within that period was not due to any neglect on the person's part. (10) A person who applies under subsection (3) shall give to the DPP and the Minister notice, as prescribed, of the application. (11) The DPP shall be a party to proceedings on an application under subsection (3) and the Minister may intervene in such proceedings. (12) In this section: foreign or international forfeiture order means: (a) the foreign forfeiture order mentioned in subsection (1) in relation to which this section applies; or (b) the order mentioned in subsection (1A) in relation to which this section applies; as the case may be. foreign or international offence means: (a) a foreign serious offence; or (b) a Tribunal offence within the meaning of the International War Crimes Tribunals Act 1995; as the case requires. Division 3—Pecuniary penalty orders 24 Application of Division This Division applies to: (a) property that comes into the possession, or under the control, of a person either within or outside Australia and either before or after the commencement of this Act; and (b) benefits that are provided to a person either within or outside Australia and either before or after the commencement of this Act. 25 Special provisions in relation to serious offences (1) Where an application is made to a court for a pecuniary penalty order against a person in reliance on the person's conviction of a serious offence, the court shall not make a pecuniary penalty order in reliance on the conviction until after the end of the period of 6 months commencing on the day of the conviction. (2) Subsection (1) does not apply to an application for a pecuniary penalty order against a person who is to be taken to have been convicted of the serious offence by reason of paragraph 5(1)(d). 26 Pecuniary penalty orders (1) Where: (a) an application is made to a court for an order under this section in respect of benefits derived by a person from the commission of an offence; and (b) the court is satisfied that the person derived benefits from the commission of the offence; the court may, if it considers it appropriate: (c) assess, in accordance with section 27, the value of the benefits so derived; and (d) order the person to pay to the Commonwealth a pecuniary penalty equal to the penalty amount. (2) Subject to subsections (3) and (4), the penalty amount is the value of the benefits as assessed under paragraph (1)(c). (3) Where: (a) property that is proceeds of the offence has been forfeited, under this Act or another law of the Commonwealth or under a law of a Territory, in relation to the offence; or (b) a forfeiture order is proposed to be made against property that is proceeds of the offence; the penalty amount shall be taken to be reduced by an amount equal to the value of the property as at the time of the making of the pecuniary penalty order. (4) Where the court making a pecuniary penalty order is satisfied that an amount of tax (whether payable under a law of the Commonwealth, a State, a Territory or a foreign country) that has been paid by the person is attributable in whole or in part to the benefits in respect of which the order is being made, the court may determine that the penalty amount be reduced by the amount that, in the opinion of the court, represents the extent to which the amount of tax so paid is attributable to those benefits and where the court makes such a determination the penalty amount shall be taken to be reduced accordingly. (5) If the court considers it appropriate to do so, the court may reduce the amount payable by a person under a pecuniary penalty order made in relation to an offence by an amount equal to the amount payable by the person by way of fine, restitution, compensation or damages in relation to the offence. (6) Where: (a) a court makes a pecuniary penalty order in relation to an offence; (b) in calculating the penalty amount, the court took into account a forfeiture of, or proposed forfeiture order in respect of, property; and (c) an appeal against the forfeiture or forfeiture order is allowed or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made; the DPP may apply to the court for a variation of the pecuniary penalty order to increase the penalty amount by the value of the property and the court may, if it considers it appropriate to do so, vary the order accordingly. (7) Where: (a) a court makes a pecuniary penalty order agai