Ley de 2002 sobre los productos de crimen (Modificaciones Consecuentes y disposiciones pasajeras), Australia

The Parliament of Australia enacts:

Schedule 1—Money laundering

Schedule 2—Foreign proceeds of crime orders and requests by Australia for orders in foreign countries

International War Crimes Tribunals Act 1995

1 Subsection 46(1)

Omit “Proceeds of Crime Act 1987”, substitute “Proceeds of Crime Act 2002”.

2 After subsection 46(1)

Insert:

(1A) In particular, section 68 of the Proceeds of Crime Act 2002 applies in relation to the forfeiture order as if:

(a)

the reference in subparagraph 68(1)(b)(i) of that Act to the Director of Public Prosecutions having applied for the order were a reference to the Director of Public Prosecutions having applied for registration of the order under section 45 of this Act; and

(b)

subparagraph 68(1)(b)(ii) of that Act were repealed.

3 Subsection 46(3)

Repeal the subsection, substitute:

(3)

Subject to section 46A, property that is subject to an order registered under this Part may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney-General or of a person authorised by the Attorney-General in writing for the purposes of this subsection.

(4)

Sections 69 to 71, Divisions 5 to 7 of Part 2-2, Part 4-2 and sections 322 and 323 of the Proceeds of Crime Act 2002 do not apply in relation to an order registered under this Part.

4 At the end of Part 6

Add:

46A Effect on third parties of registration of forfeiture orders

Applications by third parties

(1) If a court registers under section 45 a forfeiture order against property, a person who:

(a)

claims an interest (within the meaning of the Proceeds of Crime Act 2002) in the property; and

(b)

was not convicted of an offence in respect of which the order

was made; may apply to the court for an order under subsection (2).

Orders by the court

(2) 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 an offence in respect of which the forfeiture order was made; and

(b)

if the applicant acquired the interest in the property at the time of or after the commission of such an offence—the property was neither:

(i)

proceeds (within the meaning of the Proceeds of Crime Act 2002) of such an offence; nor

(ii)

an instrument (within the meaning of that Act) of such

an offence; the court must 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).

Certain people need leave to apply

(3)

A person who was given notice of, or appeared at, the hearing held in connection with the making of the forfeiture order is not entitled to apply under subsection (1) unless the court gives leave.

(4)

The court may give leave if satisfied that there are special grounds for doing so.

(5)

Without limiting subsection (4), the court may grant a person leave if the court is satisfied that:

(a)

the person, for a good reason, did not attend the hearing referred to in subsection (3) 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 (1) was not available to the person at the time of the hearing referred to in subsection (3).

Period for applying

(6)

Unless the court gives leave, an application under subsection (1) is to be made before the end of 6 weeks beginning on the day when the forfeiture order is registered in the court.

(7)

The court may give leave to apply outside that period 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.

Procedural matters

(8)

A person who applies under subsection (1) must give to the Director of Public Prosecutions and the Attorney-General notice, as prescribed, of the application.

(9)

The Director of Public Prosecutions is to be a party to proceedings on an application under subsection (1). The Attorney-General may intervene in the proceedings.

5 Continued application of certain regulations made under the Proceeds of Crime Act 1987

If:

(a)

immediately after the commencement of this Schedule, regulations for the purposes of subsection 46A(8) of the International War Crimes Tribunals Act 1995 are not in force; and

(b)

immediately before that commencement, regulations for the purposes of subsection 23A(10) of the Proceeds of Crime Act 1987 were in force;

subsection 46A(8) of the International War Crimes Tribunals Act 1995 has effect, until regulations for the purposes of that subsection come into force, as if the regulations referred to in paragraph (b) were regulations for the purposes of that subsection.

Mutual Assistance in Criminal Matters Act 1987

6 Subsection 3(1)

Insert:

account has the same meaning as in the Proceeds of Crime Act.

7 Subsection 3(1)

Insert:

agent has the same meaning as in the Proceeds of Crime Act.

8 Subsection 3(1) (definition of ancillary offence)

Repeal the definition, substitute:

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; or

(b)

an offence of aiding, abetting, inciting, counselling or procuring, or being in any way knowingly concerned in, the commission of the main offence; or

(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.

9 Subsection 3(1) (paragraph (a) of the definition of Australian forfeiture order)

Omit “the Proceeds of Crime Act;”, substitute “a proceeds of crime law; or”.

10 Subsection 3(1) (after paragraph (a) of the definition of Australian forfeiture order)

Insert: (aa) a declaration made under section 95 of the Proceeds of Crime Act; or

11 Subsection 3(1) (paragraph (ab) of the definition of Australian forfeiture order)

Omit “Proceeds of Crime Act”, substitute “Proceeds of Crime Act 1987; or”.

12 Subsection 3(1)

Insert:

Australian literary proceeds order means:

(a)

a literary proceeds order within the meaning of the Proceeds of Crime Act; or

(b)

an order, made under Australian law, that:

(i)

imposes a pecuniary penalty on a person in respect of an offence against Australian law; and

(ii)

is, in accordance with the regulations, to be taken to be an Australian literary proceeds order for the purposes of this Act.

13 Subsection 3(1) (paragraph (a) of the definition of Australian pecuniary penalty order)

Omit “the Proceeds of Crime Act;”, substitute “a proceeds of crime law; or”.

14 Subsection 3(1) (paragraph (a) of the definition of Australian restraining order)

Repeal the paragraph, substitute:

(a) a restraining order within the meaning of a proceeds of crime law (other than a restraining order made by virtue of section 59 of the Proceeds of Crime Act 1987 or section 34K of this Act); or

15 Subsection 3(1)

Insert:

authorised officer has the same meaning as in the Proceeds of Crime Act.

16 Subsection 3(1)

Insert:

Confiscated Assets Account means the account established under section 295 of the Proceeds of Crime Act.

17 Subsection 3(1)

Insert:

enforcement agency has the same meaning as in the Proceeds of Crime Act.

18 Subsection 3(1)

Insert:

foreign confiscation proceedings means proceedings in a foreign country in respect of the making of a foreign forfeiture order or a foreign pecuniary penalty order.

19 Subsection 3(1)

Insert: foreign order means:

(a)

a foreign forfeiture order; or

(b)

a foreign pecuniary penalty order; or

(c)

a foreign restraining order.

20 Subsection 3(1) (definition of foreign organised fraud offence)

Repeal the definition.

21 Subsection 3(1)

Insert: instrument, in relation to an offence, has the same meaning as in the Proceeds of Crime Act.

22 Subsection 3(1)

Insert:

interest, in relation to property, has the same meaning as in the Proceeds of Crime Act.

23 Subsection 3(1)

Insert:

narcotic substance has the same meaning as in the Proceeds of Crime Act.

24 Subsection 3(1)

Insert:

officer, in relation to a financial institution, has the same meaning as in the Proceeds of Crime Act.

25 Subsection 3(1)

Insert: Official Trustee means the Official Trustee in Bankruptcy.

26 Subsection 3(1) (definition of proceeds)

Repeal the definition, substitute:

proceeds, in relation to an offence, has the same meaning as in the Proceeds of Crime Act.

27 Subsection 3(1)

Insert:

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

28 Subsection 3(1) (definition of Proceeds of Crime Act)

Omit “1987”, substitute “2002”.

29 Subsection 3(1)

Insert: proceeds of crime law means:

(a)

the Proceeds of Crime Act 2002; or

(b)

the Proceeds of Crime Act 1987.

30 Subsection 3(1)

Insert:

related foreign serious offence: a foreign serious offence is related to another foreign serious offence if the physical elements of the 2 offences are substantially the same acts or omissions.

31 Subsection 3(1) (definition of serious narcotics offence)

Repeal the definition.

32 Subsection 3(1) (definition of tainted property)

Repeal the definition.

33 Paragraph 32(b)

After “pecuniary penalty order”, insert “, or an Australian literary proceeds order,”.

34 Paragraph 33(a)

Repeal the paragraph.

35 Paragraphs 33(c) and (d)

Omit “in respect of a property-tracking document”.

36 Division 2 of Part VI

Repeal the Division, substitute:

Division 2—Requests by foreign countries Subdivision A—Enforcement of foreign orders

34 Requests for enforcement of foreign orders

(1) If:

(a)

a foreign country requests the Attorney-General to make arrangements for the enforcement of:

(i)

a foreign forfeiture order, made in respect of a foreign serious offence, against property that is reasonably suspected of being located in Australia; or

(ii)

a foreign pecuniary penalty order, made in respect of a foreign serious offence, where some or all of the property available to satisfy the order is reasonably suspected of being located in Australia; and

(b)

the Attorney-General is satisfied that:

(i)

a person has been convicted of the offence; and

(ii)

the conviction and the order are not subject to further

appeal in the foreign country; the Attorney-General may authorise the DPP, in writing, to apply for the registration of the order in a specified court.

(2) If a foreign country that is specified in regulations made for the purposes of this subsection requests the Attorney-General to make arrangements for the enforcement of:

(a)

a foreign forfeiture order that:

(i)

has the effect of forfeiting a person’s property on the basis that the property is, or is alleged to be, the proceeds or an instrument of a foreign serious offence (whether or not a person has been convicted of that offence); and

(ii)

is made against property that is reasonably suspected of being located in Australia; or

(b)

a foreign pecuniary penalty order in respect of which both of the following apply:

(i)

the order has the effect of requiring a person to pay an amount of money on the basis that the money is, or is alleged to be, the benefit derived from a foreign serious offence (whether or not the person has been convicted of that offence);

(ii)

some or all of the property available to satisfy the order

is reasonably suspected of being located in Australia; the Attorney-General may authorise the DPP, in writing, to apply for the registration of the order in a specified court.

(3) If a foreign country requests the Attorney-General to make arrangements for the enforcement of a foreign restraining order, against property that is reasonably suspected of being located in Australia, that is:

(a)

in any case—made in respect of a foreign serious offence for which a person has been convicted; or

(b)

if the foreign country is specified in regulations made for the purposes of subsection (2)—made in respect of the alleged commission of a foreign serious offence (whether or not the identity of the person who committed the offence is known);

the Attorney-General may authorise the DPP, in writing, to apply for the registration of the order in a specified court.

(4) The court that the Attorney-General specifies under subsection (1),

(2) or (3) must be a court with proceeds jurisdiction in a State or Territory in which the property, or some or all of the property, is reasonably suspected of being located.

34A Registration of foreign orders

(1)

If the DPP applies to a court for registration of a foreign order in accordance with an authorisation under this Subdivision, the court must register the order accordingly.

(2)

The DPP must give notice of the application:

(a)

to specified persons the DPP has reason to suspect may have an interest in the property; and

(b)

to such other persons as the court directs.

(3)

However, the court must consider the application without notice having been given if the DPP requests the court to do so.

(4)

If a foreign pecuniary penalty order or a foreign restraining order is registered in a court under this Subdivision:

(a)

a copy of any amendments made to the order (whether before or after registration) may be registered in the same way as the order; and

(b)

the amendments do not, for the purposes of this Act and the Proceeds of Crime Act, have effect until they are registered.

(5)

An order or an amendment of an order is to be registered in a court by the registration, in accordance with the rules of the court, of:

(a)

a copy of the appropriate order or amendment sealed by the court or other authority making that order or amendment; or

(b)

a copy of that order or amendment duly authenticated in accordance with subsection 43(2).

34B Enforcement of foreign forfeiture orders

(1)

A foreign forfeiture order registered in a court under this Subdivision has effect, and may be enforced, as if it were a forfeiture order made by the court under the Proceeds of Crime Act at the time of registration.

(2)

In particular, section 68 of the Proceeds of Crime Act 2002 applies in relation to the forfeiture order as if:

(a)

the reference in subparagraph 68(1)(b)(i) of that Act to the DPP having applied for the order were a reference to the foreign forfeiture order having been made; and

(b)

subparagraph 68(1)(b)(ii) of that Act did not apply if the person in question died after the DPP applied for registration of the order under section 34A of this Act.

(3)

Subject to section 34C, property that is subject to a foreign forfeiture order registered under this Subdivision may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney-General or of a person authorised by the Attorney-General in writing for the purposes of this subsection.

(4)

Sections 69 and 70 and Divisions 5 to 7 of Part 2-2 of the Proceeds of Crime Act do not apply in relation to a foreign forfeiture order registered under this Subdivision.

34C Effect on third parties of registration of foreign forfeiture orders

Applications by third parties

(1) If a court registers under section 34A a foreign forfeiture order against property, a person who:

(a)

claims an interest in the property; and

(b)

either:

(i) if the registration relates to an authorisation given under subsection 34(1)—was not convicted of a foreign serious offence in respect of which the order was made; or

(ii) if the registration relates to an authorisation given under subsection 34(2)—is not a person whom the court has reason to believe committed a foreign serious offence in respect of which the order was made;

may apply to the court for an order under subsection (2).

Orders by the court

(2) 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 serious offence in respect of which the foreign forfeiture order was made; and

(b)

if the applicant acquired the interest in the property at the time of or after the commission of such an offence—the property was neither proceeds nor an instrument of such an offence;

the court must 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).

Certain people need leave to apply

(3)

A person who was given notice of, or appeared at, the hearing held in connection with the making of the foreign forfeiture order is not entitled to apply under subsection (1) unless the court gives leave.

(4)

The court may give leave if satisfied that there are special grounds for doing so.

(5)

Without limiting subsection (4), the court may grant a person leave if the court is satisfied that:

(a)

the person, for a good reason, did not attend the hearing referred to in subsection (3) 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 (1) was not available to the person at the time of the hearing referred to in subsection (3).

Period for applying

(6)

Unless the court gives leave, an application under subsection (1) is to be made before the end of 6 weeks beginning on the day when the foreign forfeiture order is registered in the court.

(7)

The court may give leave to apply outside that period 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.

Procedural matters

(8)

A person who applies under subsection (1) must give to the DPP notice, as prescribed, of the application.

(9)

The DPP is to be a party to proceedings on an application under subsection (1). The Attorney-General may intervene in the proceedings.

34D Enforcement of foreign pecuniary penalty orders

(1)

A foreign pecuniary penalty order registered in a court under this Subdivision has effect, and may be enforced, as if it were a pecuniary penalty order that:

(a)

was made by the court under the Proceeds of Crime Act at the time of registration; and

(b)

requires the payment to the Commonwealth of the amount payable under the order.

(2)

Any amount paid (whether in Australia, in the foreign country in which the order was made or elsewhere) in satisfaction of the foreign pecuniary penalty order is taken to have been paid in satisfaction of the debt that arises because of the registration of the foreign pecuniary penalty order in that court.

(3)

Division 5 of Part 2-4 of the Proceeds of Crime Act does not apply in relation to a foreign pecuniary penalty order registered under this Subdivision.

34E Enforcement of foreign restraining orders

(1)

A foreign restraining order registered in a court under this Subdivision has effect, and may be enforced, as if it were a restraining order that:

(a)

was made by the court under the Proceeds of Crime Act at the time of the registration; and

(b)

directed that the property specified in the order is not to be disposed of or otherwise dealt with by any person.

(2)

In particular:

(a)

section 288 of that Act applies as if:

(i)

the reference in that section to the Official Trustee’s exercise of powers under that Act included a reference to the Official Trustee’s exercise of those powers in relation to a foreign restraining order so registered; and

(ii)

the reference in that section to the Official Trustee’s performance of functions or duties under that Act included a reference to the Official Trustee’s performance of those functions or duties in relation to such a foreign restraining order; and

(b)

section 289 of that Act applies as if the reference in that section to controlled property included a reference to property that is subject to an order under section 35; and

(c)

section 290 of that Act applies as if the reference in that section to the controlled property were a reference to the property that is subject to an order under section 35.

(3)

Divisions 1, 2 and 3 of Part 2-1, section 33, Divisions 5 and 6 of Part 2-1 and sections 142, 143, 169, 170 and 282 to 287 of the Proceeds of Crime Act do not apply in relation to a foreign restraining order registered under this Subdivision.

Note: Division 3 of this Part contains further provisions relating to registered foreign restraining orders.

34F Faxed copies of foreign orders

(1)

A faxed copy of a sealed or authenticated copy of a foreign order or an amendment of a foreign order is to be regarded for the purposes of this Act as the same as the sealed or authenticated copy.

(2)

However, if registration of the order under this Subdivision is effected by means of the faxed copy, the registration ceases to have effect at the end of 21 days unless the sealed or authenticated copy has been filed by then in the court that registered the order.

34G Cancelling registration

(1) The Attorney-General may direct the DPP to apply to a court in which:

(a)

a foreign pecuniary penalty order; or

(b)

a foreign restraining order;

has been registered under this Subdivision for cancellation of the registration.

(2)

Without limiting subsection (1), the Attorney-General may give a direction under that subsection in relation to an order if the Attorney-General is satisfied that:

(a)

the order has ceased to have effect in the foreign country in which the order was made; or

(b)

cancellation of the order is appropriate having regard to the arrangements entered into between Australia and the foreign country in relation to the enforcement of orders of that kind.

(3)

The court to which the DPP applies in accordance with a direction under subsection (1) must cancel the registration accordingly.

34H Certain provisions of the Proceeds of Crime Act not to apply

Part 4-2 and sections 322 and 323 of the Proceeds of Crime Act do not apply to a foreign order registered under this Subdivision.

Subdivision B—Restraining orders relating to foreign criminal proceedings

34J Requests for restraining orders

(1) If:

(a)

either:

(i)

a criminal proceeding has commenced, or there are reasonable grounds to suspect that a criminal proceeding is about to commence, in a foreign country in respect of a foreign serious offence; or

(ii)

a foreign country is specified in regulations made for the purposes of subsection 34(2), and foreign confiscation proceedings have commenced, or there are reasonable grounds to suspect that such proceedings are about to commence, in the foreign country; and

(b)

there are reasonable grounds to believe that property that may be made or is about to be made the subject of a foreign restraining order is located in Australia; and

(c)

the foreign country requests the Attorney-General to obtain

the issue of a restraining order against the property; the Attorney-General may authorise the DPP to apply to a specified court for a restraining order against that property in respect of the offence.

(2) The court specified must be a court with proceeds jurisdiction in a State or Territory in which the property, or some or all of the property, is reasonably suspected of being located.

34K Applying for and making restraining orders

(1)

If so authorised, the DPP may apply for such a restraining order against that property in respect of the offence.

(2)

Part 2-1 of the Proceeds of Crime Act applies to the application, and to any restraining order made as a result.

(3)

It applies as if:

(a)

references in that Part to an indictable offence were references to the foreign serious offence; and

(b)

references in that Part to a court with proceeds jurisdiction were references to the court specified in the DPP’s authorisation under section 34J of this Act; and

(c)

in a case to which subparagraph 34J(1)(a)(i) applies:

(i)

references in that Part to a person charged with an indictable offence were references to a person against whom a criminal proceeding in respect of a foreign serious offence has commenced in a foreign country; and

(ii)

references in that Part to it being proposed to charge a person with an indictable offence were a reference to it being reasonably suspected that criminal proceedings are about to commence in respect of a foreign serious offence against the person in a foreign country; and

(iii) paragraphs 17(1)(e) and (f), subsections 17(3) and (4) and sections 18 to 20, 29, 44 and 45 of that Act were omitted; and

(d)

in a case to which subparagraph 34J(1)(a)(ii) applies in relation to a foreign country:

(i)

references in that Part to reasonable grounds to suspect that a person has committed a serious offence were references to reasonable grounds to suspect that such proceedings have commenced, or are about to commence, in the foreign country; and

(ii)

section 17, paragraphs 18(1)(e) and (f), subsection 18(3) and sections 19, 20, 29, 44 and 45 of that Act were omitted.

34L Excluding property from restraining orders

If:

(a)

a person (the defendant) has been alleged, in a criminal proceeding in a foreign country, to have committed a foreign serious offence; and

(b)

a court makes a restraining order under Part 2-1 of the Proceeds of Crime Act against property in respect of the offence; and

(c)

a person having an interest in the property applies to the court under Division 3 of Part 2-1 of that Act for an order

varying the restraining order to exclude the person’s interest from the restraining order; the court must grant the application if the court is satisfied that:

(d)

in a case where the applicant is not the defendant:

(i)

the applicant was not, in any way, involved in the commission of the offence; and

(ii)

if the applicant acquired the interest at the time of or after the commission, or alleged commission, of the offence—the property was neither proceeds nor an instrument of the offence; or

(e)

in any case—it is in the public interest to do so having regard to any financial hardship or other consequence of the interest remaining subject to the order.

34M Cessation of restraining orders

(1)

A restraining order made in respect of a foreign serious offence as a result of an application under subsection 34K(1) ceases to have effect:

(a)

at the end of the period of 30 days commencing on the day on which the order is made; or

(b)

if the court that made the restraining order, on application made by the DPP before the end of the period referred to in paragraph (a), extends the period of operation of the order— at the end of the period as so extended.

(2)

However, the restraining order ceases to have effect upon the registration of a foreign restraining order against the property under Subdivision A if that registration occurs before the end of the period referred to in paragraph (1)(a) or (b) (as the case requires).

Subdivision C—Production orders relating to foreign serious offences

34N Requests for production orders

(1) If:

(a)

a criminal proceeding or criminal investigation has commenced in a foreign country in respect of a foreign serious offence; and

(b)

a property-tracking document in relation to the offence is reasonably suspected of being located in Australia; and

(c)

the foreign country requests the Attorney-General to obtain the issue of a production order requiring that the document be produced or made available for inspection in accordance with Australian law;

the Attorney-General may authorise an authorised officer of an enforcement agency to apply to a magistrate of a specified State or Territory for a production order under the Proceeds of Crime Act in respect of the offence for the purpose of obtaining possession of the property-tracking document.

(2) The State or Territory specified must be a State or Territory in which the document is, or some or all of the documents are, reasonably suspected of being located.

34P Applying for and making production orders

(1)

If so authorised, the authorised officer may apply for such a production order against that property in respect of the offence.

(2)

Part 3-2 of the Proceeds of Crime Act applies to the application, and to any production order made as a result.

(3)

It applies as if:

(a)

references in that Part to an indictable offence or to a serious offence were references to the foreign serious offence; and

(b)

references in that Part to a magistrate were references to a magistrate of the State or Territory specified in the authorised officer’s authorisation under subsection 34N(1); and

(c)

subparagraphs 202(5)(a)(ii) and (iii) and (c)(ii) and (iii), paragraph 202(5)(e) and subsection 205(1) of that Act were omitted.

34Q Retaining produced documents

(1)

An authorised officer who takes possession of a document under a production order made in respect of a foreign serious offence may retain the document pending a written direction from the Attorney-General as to how to deal with the document.

(2)

Directions from the Attorney-General may include a direction that the document be sent to an authority of the foreign country that requested the obtaining of the production order.

Subdivision D—Notices to financial institutions

34R Giving notices to financial institutions

(1)

The Attorney-General or a senior Departmental officer may give a written notice to a financial institution requiring the institution to provide to an authorised officer any information or documents relevant to any one or more of the following:

(a)

determining whether an account is held by a specified person with the financial institution;

(b)

determining whether a particular person is a signatory to an account;

(c)

if a person holds an account with the institution, the current balance of the account;

(d)

details of transactions on such an account over a specified period of up to 6 months;

(e)

details of any related accounts (including names of those who hold those accounts);

(f)

a transaction conducted by the financial institution on behalf of a specified person.

(2)

The Attorney-General or the senior Departmental officer must not issue the notice unless he or she reasonably believes that giving the notice is required:

(a)

to determine whether to take any action under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division; or

(b)

in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division.

(3)

In this section:

senior Departmental officer has the same meaning as in the Proceeds of Crime Act.

34S Contents of notices to financial institutions

The notice must:

(a) state that the officer giving the notice believes that the notice is required:

(i)

to determine whether to take any action under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division; or

(ii)

in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division;

(as the case requires); and

(b)

specify the name of the financial institution; and

(c)

specify the kind of information or documents required to be provided; and

(d)

specify the form and manner in which that information or those documents are to be provided; and

(e)

state that the information or documents must be provided within 14 days of the notice; and

(f)

if the notice specifies that information about the notice must not be disclosed—set out the effect of section 34V (disclosing existence or nature of a notice); and

(g)

set out the effect of section 34W (failing to comply with a notice).

34T Protection from suits etc. for those complying with notices

(1) No action, suit or proceeding lies against:

(a)

a financial institution; or

(b)

an officer, employee or agent of the institution acting in the

course of that person’s employment or agency; in relation to any action taken by the institution or person under a notice under section 34R or in the mistaken belief that action was required under the notice.

(2) A financial institution, or person who is an officer, employee or agent of a financial institution, who provides information under a notice under section 34R is taken, for the purposes of Part 10.2 of the Criminal Code (offences relating to money-laundering), not to have been in possession of that information at any time.

34U Making false statements in applications

A person is guilty of an offence if:

(a)

the person makes a statement (whether orally, in a document or in any other way); and

(b)

the statement:

(i)

is false or misleading; or

(ii)

omits any matter or thing without which the statement is misleading; and

(c)

the statement is made in, or in connection with, a notice under section 34R.

Maximum penalty: Imprisonment for 12 months or 60 penalty units, or both.

34V Disclosing existence or nature of notice

A person is guilty of an offence if:

(a)

the person is given a notice under section 34R; and

(b)

the notice specifies that information about the notice must not be disclosed; and

(c)

the person discloses the existence or nature of the notice.

Maximum penalty: Imprisonment for 2 years or 120 penalty units, or both.

34W Failing to comply with a notice

A person is guilty of an offence if:

(a)

the person is given a notice under section 34R; and

(b)

the person fails to comply with the notice.

Maximum penalty: Imprisonment for 6 months or 30 penalty units, or both.

Note: Sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.

Subdivision E—Monitoring orders relating to foreign serious offences

34X Requests for monitoring orders

(1) If:

(a)

a criminal proceeding or criminal investigation has commenced in a foreign country in respect of a foreign serious offence referred to in subsection (2); and

(b)

information about transactions conducted through an account with a financial institution in Australia is reasonably suspected of being relevant to the proceeding or investigation; and

(c)

the foreign country requests the Attorney-General to obtain the issue of an order directing the financial institution to give information about transactions conducted through the account;

the Attorney-General may authorise an authorised officer of an enforcement agency to apply to a judge of a specified court for a monitoring order under the Proceeds of Crime Act in respect of the offence for the purpose of obtaining the information requested by the foreign country.

(2)

These are foreign serious offences to which paragraph (1)(a) applies:

(a)

an offence punishable by imprisonment for 3 or more years that:

(i)

involves unlawful conduct relating to a narcotic substance; or

(ii)

is a money laundering offence; or

(iii) involves unlawful conduct by a person that causes, or is intended to cause, a benefit to the value of at least $10,000 for that person or another person; or (iv) involves unlawful conduct by a person that causes, or is intended to cause, a loss to the foreign country in question or another person of at least $10,000;

(b)

an offence involving the smuggling of migrants;

(c)

an offence involving failure to report financial transactions;

(d)

an ancillary offence in respect of an offence referred to in paragraph (a), (b) or (c).

(3)

The court specified must be a court of a State or Territory that has jurisdiction to deal with criminal matters on indictment.

34Y Applying for and making monitoring orders

(1)

If so authorised, the authorised officer may apply for such a monitoring order against that property in respect of the offence.

(2)

Part 3-4 of the Proceeds of Crime Act applies to the application, and to any monitoring order made as a result.

(3)

It applies as if:

(a)

references in that Part to a serious offence were references to an offence of the kind referred to in paragraph 34X(1)(a); and

(b)

disclosing the existence or the operation of the order for the purpose of complying with a person’s obligations under section 34Z of this Act were a purpose specified in subsection 223(4) of the Proceeds of Crime Act.

34Z Passing on information given under monitoring orders

If an enforcement agency is given information under a monitoring order made in relation to a foreign serious offence, the enforcement agency must, as soon as practicable after receiving the information, pass the information on to:

(a)

the Attorney-General; or

(b)

an officer of the Attorney-General’s Department specified by the Attorney-General by written notice to the enforcement agency.

Subdivision F—Search warrants relating to foreign serious offences

34ZA Requests for search warrants

(1) If:

(a)

a criminal proceeding or criminal investigation has commenced in a foreign country in respect of a foreign serious offence; and

(b)

proceeds or an instrument of the offence, or a property-tracking document in relation to the offence, is reasonably suspected of being located in Australia; and

(c)

the foreign country requests the Attorney-General to obtain the issue of a search warrant relating to the proceeds, instrument or document;

the Attorney-General may authorise an authorised officer of an enforcement agency to apply to a magistrate of a specified State or Territory for a search warrant under the Proceeds of Crime Act in relation to the proceeds, instrument or document.

(2) The State or Territory specified must be a State or Territory in which:

(a)

the proceeds, or some or all of the proceeds, are reasonably suspected of being located; or

(b)

the instrument is, or some or all of the instruments are, reasonably suspected of being located; or

(c)

the document is, or some or all of the documents are, reasonably suspected of being located.

34ZB Applying for and issuing search warrants

(1)

If so authorised, the authorised officer may apply for such a search warrant, in relation to those proceeds, that instrument or that document, in respect of the offence.

(2)

Part 3-5 of the Proceeds of Crime Act applies to the application, and to any search warrant issued as a result.

(3)

It applies as if:

(a)

references in that Part to a property-tracking document were references to a property-tracking document relating to the offence; and

(b)

references in that Part to a magistrate were references to a magistrate of the State or Territory specified in the authorised officer’s authorisation under subsection 34ZA(1); and

(c)

paragraph 228(1)(d) and sections 256 to 258 of that Act were omitted.

34ZC Seizure of other property and documents

(1)

A search warrant issued under Part 3-5 of the Proceeds of Crime Act in relation to a foreign serious offence authorises an authorised officer to seize property or a thing that he or she finds and that he or she believes on reasonable grounds to be:

(a)

proceeds or an instrument of the offence or a property-tracking document in relation to the offence, although not of the kind specified in the warrant; or

(b)

proceeds or an instrument of, or a property-tracking document in relation to, another foreign serious offence in relation to which a search warrant issued under that Part is in force; or

(c)

something that:

(i)

is relevant to a criminal proceeding in the foreign country in respect of the foreign serious offence; or

(ii)

will afford evidence as to the commission of an Australian criminal offence.

(2)

However, this section only applies if the authorised officer believes on reasonable grounds that it is necessary to seize the property or thing in order to prevent its concealment, loss or destruction or its use in committing an offence.

34ZD Return of seized property to third parties

(1)

A person who claims an interest in property (other than a property-tracking document) that has been seized under a search warrant issued under Part 3-5 of the Proceeds of Crime Act in relation to a foreign serious offence may apply to a court for an order that the property be returned to the person.

(2)

The court must be a court of the State or Territory in which the warrant was issued that has proceeds jurisdiction.

(3)

The court must order the head of the authorised officer’s enforcement agency to return the property to the applicant if the court is satisfied that:

(a)

the applicant is entitled to possession of the property; and

(b)

the property is not proceeds or an instrument of the relevant foreign serious offence; and

(c)

the person who is believed or alleged to have committed the relevant foreign serious offence has no interest in the property.

(4)

If the court makes such an order, the head of the authorised officer’s enforcement agency must arrange for the property to be returned to the applicant.

(5)

This section does not apply to property that has been seized because it may afford evidence as to the commission of an Australian criminal offence.

34ZE Dealing with seized property (other than property-tracking documents)

Property covered by this section

(1) Property (other than a property-tracking document) must be dealt with in accordance with this section if:

(a)

it has been seized under a search warrant issued under Part 3-5 of the Proceeds of Crime Act in relation to a foreign serious offence; and

(b)

it has not been seized under paragraph 34ZC(1)(c).

General rule—property to be returned after 30 days

(2) If, at the end of the period of 30 days after the day on which the property was seized:

(a)

neither a foreign restraining order, nor a foreign forfeiture order, in relation to the property has been registered in a court under Subdivision A; and

(b)

a restraining order has not been made under Subdivision B in respect of the property in relation to the foreign serious offence;

the head of the enforcement agency whose authorised officer seized the property must, unless subsection (3), (5) or (7) applies, arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period.

Effect of restraining orders being registered or obtained

(3) If, before the end of that period:

(a)

a foreign restraining order in relation to the property is registered in a court under Subdivision A; or

(b)

a restraining order is made under Subdivision B in respect of

the property in relation to the foreign serious offence; the head of the enforcement agency whose authorised officer seized the property:

(c)

if there is in force, at the end of that period, a direction by a court that the Official Trustee take custody and control of the property—must arrange for the property to be given to the Official Trustee in accordance with the direction; or

(d)

if there is in force at the end of that period an order under subsection (6) in relation to the property—must arrange for the property to be retained until it is dealt with in accordance with another provision of this Act or the Proceeds of Crime Act.

(4) If the property is subject to a direction of a kind referred to in paragraph (3)(c), the Proceeds of Crime Act applies to the property as if it were controlled property within the meaning of that Act.

Retaining property despite restraining orders

(5) If, at a time when the property is in the possession of the head of the enforcement agency whose authorised officer seized the property:

(a)

a foreign restraining order in respect of the property has been registered in an Australian court under Subdivision A; or

(b)

a restraining order has been made under Subdivision B in respect of the property in relation to the foreign serious offence;

the head of the enforcement agency may apply to the court in which the restraining order was registered, or by which the restraining order was made, for an order that the head of the enforcement agency retain possession of the property.

(6) If the court is satisfied that the head of the enforcement agency requires the property to be dealt with in accordance with:

(a)

a request under section 34 that the restraining order be registered; or

(b)

a request under section 34J that the restraining order be

obtained; the court may make an order that the head of the enforcement agency may retain the property for so long as the property is so required.

Effect of foreign forfeiture orders being registered or obtained

(7) If, while the property is in the possession of the head of the enforcement agency whose authorised officer seized it, a foreign forfeiture order in respect of the property is registered in a court under Subdivision A, the head of the enforcement agency must deal with the property as required by the forfeiture order.

34ZF Dealing with seized property-tracking documents

(1)

An authorised officer who takes possession of a property-tracking document under a warrant issued in respect of a foreign serious offence may retain the document for a period not exceeding one month pending a written direction from the Attorney-General as to how to deal with the document.

(2)

Directions from the Attorney-General may include a direction that the document be sent to an authority of the foreign country that requested the issue of the warrant.

Division 3—Provisions relating to registered foreign restraining orders

35 Court may order Official Trustee to take custody and control of property

The court that registers a foreign restraining order under Subdivision A of Division 2 may order the Official Trustee to take custody and control of all or a specified part of property covered by the restraining order if:

(a)

the DPP applies for the order; and

(b)

the court is satisfied that it is required in the circumstances.

35A Procedural matters

(1)

The DPP must give written notice of an application for an order under section 35 in respect of property to:

(a)

the owner of the property; and

(b)

any other person the DPP has reason to believe may have an interest in the property.

(2)

The court may, at any time before finally determining the application, direct the DPP to give or publish notice of the application:

(a)

to a specified person or class of persons; and

(b)

in the manner and within the time that the court considers appropriate.

(3)

A person who claims an interest in property in respect of which the application is made may appear and adduce evidence at the hearing of the application.

35B Ancillary orders

The court that makes an order under section 35 in relation to property may at any time make orders ancillary to the order, including any one or more of the following:

(a)

an order regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the order;

(b)

an order determining any question relating to the property, including a question relating to the liabilities of the owner of the property or the exercise of the powers or the performance of the duties of the Official Trustee in relation to the property;

(c)

an order directing the owner to give to the Official Trustee, within a specified period, a statement, verified by the oath of the owner, setting out such particulars of the property as the court considers appropriate.

35C Dealing with restrained property

(1)

Division 3 of Part 4-1 of the Proceeds of Crime Act applies to the property as if the property were controlled property within the meaning of that Act.

(2)

However, the Official Trustee must, before exercising a power under section 278 of the Proceeds of Crime Act in relation to the property, consult with the foreign country that made the request under section 34 relating to the foreign restraining order covering the property.

35D Money not to be paid into the Common Investment Fund

Money that is in the custody or control of the Official Trustee because of a foreign restraining order must not be paid into the Common Investment Fund under section 20B of the Bankruptcy Act 1966 (despite anything in that Act).

35E Undertakings

The court that:

(a) registers a foreign restraining order against property under Subdivision A of Division 2; or

(b) makes an order under section 35 in relation to property; may, upon application of a person who claims an interest in the property, make an order as to the giving or carrying out of an undertaking, by the DPP on behalf of the Commonwealth, with

respect to payment of damages or costs relating to the registration, making or operation of the order.

35F Order to discharge certain registered foreign pecuniary penalty orders

(1) If:

(a)

a foreign restraining order is made against property of a person in reliance on the person’s conviction, or alleged commission, of a foreign serious offence; and

(b)

the foreign restraining order is registered under Subdivision A of Division 2; and

(c)

a foreign pecuniary penalty order has been made against the person in relation to the person’s conviction, or alleged commission, of the offence or a related foreign serious offence; and

(d)

the foreign pecuniary penalty order has been registered under Subdivision A of Division 2; and

(e)

an order has been made under section 35 ordering the

Official Trustee to take control of the property; the court in which the foreign pecuniary penalty order is registered may, by order, direct the Official Trustee to pay to the Commonwealth an amount out of that property.

(2)

The amount is to be the amount that would be the penalty amount under the Proceeds of Crime Act if the foreign pecuniary penalty order were a pecuniary penalty order under that Act.

(3)

For the purposes of enabling the Official Trustee to comply with the order under subsection (1), the court may, in that order or by a subsequent order:

(a)

direct the Official Trustee to sell or otherwise dispose of such of the property that is under the control of the Official Trustee as the court specifies; and

(b)

appoint an officer of the court or any other person:

(i)

to execute any deed or instrument in the name of a person who owns or has an interest in the property; and

(ii)

to do any act or thing necessary to give validity and operation to the deed or instrument.

(4)

The execution of the deed or instrument by the person appointed by an order under subsection (3) has the same force and validity as if the deed or instrument had been executed by the person who owned or had the interest in the property.

35G Official Trustee to carry out orders

(1)

As soon as practicable after an order is made under subsection 35F(1) covering property that is money, the Official Trustee must:

(a)

apply the money in payment of the costs payable to the Official Trustee, under section 288 of the Proceeds of Crime Act, in respect of the order under section 35 in respect of the property; and

(b)

subject to subsection (3), credit the remainder of the money to the Confiscated Assets Account as required by section 296 of that Act.

(2)

As soon as practicable after an order is made under subsection 35F(1) covering property that is not money, the Official Trustee must:

(a)

sell or otherwise dispose of the property;

(b)

apply the proceeds of the sale or disposition in payment of the costs payable to the Official Trustee, under section 288 of the Proceeds of Crime Act, in respect of the order in respect of the property (including expenses incurred in connection with selling or disposing of the property); and

(c)

subject to subsection (3), credit the remainder of the proceeds to the Confiscated Assets Account as required by section 296 of the Proceeds of Crime Act.

(3)

If the money or proceeds to which paragraph (1)(b) or (2)(c) applies exceeds the amount payable to the Commonwealth under the order under subsection 35F(1):

(a)

the amount to be credited under that paragraph is the amount payable to the Commonwealth under the order; and

(b)

the Official Trustee must pay an amount equal to the excess to the person whose property was covered by the order under section 35.

35H Discharge of person’s liability under foreign pecuniary penalty order

A person’s liability under a foreign pecuniary penalty order is taken to be discharged to the extent that the Official Trustee credits money to the Confiscated Assets Account, as required by section 296 of the Proceeds of Crime Act, in satisfaction of the person’s liability under the order.

35J Creation of charge on property

(1) If:

(a)

a foreign restraining order against property has been registered under Subdivision A of Division 2; and

(b)

a foreign pecuniary penalty order has been made against the person in reliance on the person’s conviction, or alleged commission, of:

(i)

the foreign serious offence in relation to which the foreign restraining order was made; or

(ii)

a related foreign serious offence; and

(c)

the foreign pecuniary penalty order has been registered under

Subdivision A of Division 2; the registration of the foreign restraining order or the foreign pecuniary penalty order (whichever last occurs) creates, by force of this section, a charge on the property to secure the payment of an amount to the Commonwealth.

(2)

The amount is to be the amount that would be the penalty amount under the Proceeds of Crime Act if the foreign pecuniary penalty order were a pecuniary penalty order under that Act.

(3)

The charge:

(a)

is subject to every encumbrance on the property that came into existence before the charge and that would, apart from this subsection, have priority; and

(b)

has priority over all other encumbrances; and

(c)

subject to section 35K, is not affected by any change of ownership of the property.

35K When the charge ceases to have effect

The charge ceases to have effect in respect of the property on the earliest of the following events:

(a)

the payment to the Commonwealth of the amount under subsection 35J(2) in relation to the foreign pecuniary penalty order;

(b)

the sale or other disposition of the property:

(i)

under an order under subsection 35F(3); or

(ii)

by the owner of the property with the consent of the court in which the foreign pecuniary penalty order is registered; or

(iii) if an order under section 35 ordered the Official Trustee to take control of the property—by the owner of the property with the consent of the Official Trustee;

(c)

the sale of the property to a purchaser in good faith for value who, at the time of purchase, has no notice of the charge;

(d)

the cancellation of the registration of the relevant foreign restraining order or foreign pecuniary penalty order under section 34G.

35L Registering charges

(1)

A registration authority that keeps a register of property of a particular kind may record in the register a charge created by section 35J on property of that kind.

(2)

The registration authority may only do so on the application of the DPP or the Official Trustee.

(3)

Each person who subsequently deals with the property is taken to have notice of the charge for the purposes of paragraph 35K(c).

(4)

In this section:

registration authority means an authority responsible for administering a law of the Commonwealth, a State or a Territory providing for registration of title to, or charges over, property of a particular kind.

35M When order ceases to be in force

A foreign restraining order registered under Subdivision A of Division 2 ceases to be in force when the registration is cancelled under section 34G.

37 Subsections 43(1) and 43A(1)

Omit “the Proceeds of Crime Act”, substitute “a proceeds of crime law”.

Schedule 3—Retaining financial transaction documents