Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Crimes Legislation Amendment
(Economic Disruption) Bill 2020
No. , 2020
(Home Affairs)
A Bill for an Act to amend the
Crimes Act 1914
, the
Criminal Code Act 1995
and the
Proceeds of Crime
Act 2002
, and for other purposes
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 3
Schedule 1--Money laundering
4
Part 1--General amendments
4
Division 1--Amendments
4
Criminal Code Act 1995
4
Division 2--Application of amendments
30
Part 2--Amendments contingent on the commencement of the
Anti-Money Laundering and Counter-Terrorism
Financing and Other Legislation Amendment Act
2020
31
Division 1--Amendments
31
Criminal Code Act 1995
31
Division 2--Application of amendments
32
Schedule 2--Investigation of Commonwealth offences
33
Crimes Act 1914
33
Schedule 3--Buy-backs
35
Part 1--Amendments
35
Proceeds of Crime Act 2002
35
Part 2--Transitional provisions
46
Schedule 4--Benefit
47
Part 1--Amendments
47
Proceeds of Crime Act 2002
47
Part 2--Application provisions
48
Schedule 5--Jurisdiction of courts
49
Part 1--Amendments
49
Proceeds of Crime Act 2002
49
ii
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
Part 2--Application provisions
52
Schedule 6--Information
53
Part 1--Amendments
53
Proceeds of Crime Act 2002
53
Part 2--Application provisions
59
Schedule 7--Official Trustee
60
Part 1--General amendments
60
Division 1--Amendments
60
COAG Reform Fund Act 2008
60
Proceeds of Crime Act 2002
60
Division 2--Application of amendments
79
Part 2--Amendments contingent on the commencement of the
Crimes Legislation Amendment (Combatting
Corporate Crime) Act 2020
81
Proceeds of Crime Act 2002
81
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
1
A Bill for an Act to amend the
Crimes Act 1914
, the
1
Criminal Code Act 1995
and the
Proceeds of Crime
2
Act 2002
, and for other purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
Crimes Legislation Amendment (Economic
6
Disruption) Act 2020
.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
Part 1
The day after this Act receives the Royal
Assent.
3. Schedule 1,
Part 2
The later of:
(a) immediately after the commencement of
the provisions covered by table item 2;
and
(b) the commencement of Part 6 of
Schedule 1 to the
Anti-Money
Laundering and Counter-Terrorism
Financing and Other Legislation
Amendment Act 2020
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
4. Schedules 2 to
6
The day after this Act receives the Royal
Assent.
5. Schedule 7,
Part 1
The day after this Act receives the Royal
Assent.
6. Schedule 7,
Part 2
The later of:
(a) immediately after the commencement of
the provisions covered by table item 5;
and
(b) the commencement of Part 1 of
Schedule 2 to the
Crimes Legislation
Amendment (Combatting Corporate
Crime) Act 2020
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
3
(2) Any information in column 3 of the table is not part of this Act.
1
Information may be inserted in this column, or information in it
2
may be edited, in any published version of this Act.
3
3 Schedules
4
Legislation that is specified in a Schedule to this Act is amended or
5
repealed as set out in the applicable items in the Schedule
6
concerned, and any other item in a Schedule to this Act has effect
7
according to its terms.
8
Schedule 1
Money laundering
Part 1
General amendments
4
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
Schedule 1--Money laundering
1
Part 1--General amendments
2
Division 1
--Amendments
3
Criminal Code Act 1995
4
1 Subsection 400.1(1) of the
Criminal Code
5
Insert:
6
director
, in relation to a company, means:
7
(a) any person occupying or acting in the position of director of
8
the company, by whatever name called and whether or not
9
validly appointed to occupy or duly authorised to act in the
10
position; and
11
(b) any person in accordance with whose directions or
12
instructions the directors of the company are accustomed to
13
act, other than when those directors only do so:
14
(i) in the proper performance of the functions attaching to
15
the person's professional capacity; or
16
(ii) in their business relationship with the person.
17
effective control
has a meaning affected by section 400.2AA.
18
foreign offence
means an offence against a law of a foreign
19
country constituted by conduct that, if it had occurred in Australia,
20
would have constituted an offence against:
21
(a) a law of the Commonwealth; or
22
(b) a law of a State; or
23
(c) a law of a Territory.
24
proceeds of general crime offence provision
means an offence
25
against any of the following provisions:
26
(a) subsection 400.2B(2);
27
(b) subsection 400.2B(3);
28
(c) subsection 400.2B(5);
29
(d) subsection 400.2B(6);
30
(e) subsection 400.2B(8);
31
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
5
(f) subsection 400.2B(9);
1
(g) subsection 400.3(1A);
2
(h) subsection 400.3(1B);
3
(i) subsection 400.3(2A);
4
(j) subsection 400.3(2B);
5
(k) subsection 400.3(3A);
6
(l) subsection 400.3(3B);
7
(m) subsection 400.4(1A);
8
(n) subsection 400.4(1B);
9
(o) subsection 400.4(2A);
10
(p) subsection 400.4(2B);
11
(q) subsection 400.4(3A);
12
(r) subsection 400.4(3B).
13
2 Subsection 400.1(1) of the
Criminal Code
(definition of
14
proceeds of crime
)
15
Repeal the definition.
16
3 Subsection 400.1(1) of the
Criminal Code
17
Insert:
18
proceeds of general crime
means any money or other property that
19
is wholly or partly derived or realised, directly or indirectly, by any
20
person from the commission of:
21
(a) an offence against a law of the Commonwealth, a State or a
22
Territory; or
23
(b) a foreign offence.
24
proceeds of indictable crime
means:
25
(a) any money or other property that is wholly or partly derived
26
or realised, directly or indirectly, by any person from the
27
commission of a particular offence against a law of the
28
Commonwealth, a State, a Territory or a foreign country that
29
may be dealt with as an indictable offence (even if it may, in
30
some circumstances, be dealt with as a summary offence); or
31
(b) any money or other property that is wholly or partly derived
32
or realised, directly or indirectly, by any person from the
33
commission of an offence of a particular kind against a law
34
of the Commonwealth, a State, a Territory or a foreign
35
Schedule 1
Money laundering
Part 1
General amendments
6
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
country that may be dealt with as an indictable offence (even
1
if an offence of that kind may, in some circumstances, be
2
dealt with as a summary offence).
3
4 Paragraph 400.1(3)(b) of the
Criminal Code
4
Omit "proceeds of crime", substitute "proceeds of indictable crime".
5
5 Section 400.2 of the
Criminal Code
6
Omit "A person", substitute "(1) For the purposes of this Division, a
7
person".
8
6 At the end of section 400.2 of the
Criminal Code
9
Add:
10
(2) For the purposes of this Division, if:
11
(a) a person (the
first person
) engages in conduct; and
12
(b) the first person's conduct causes another person to deal with
13
money or other property (within the meaning of
14
subsection (1)); and
15
(c) the first person is reckless as to whether the first person's
16
conduct causes the other person to deal with the money or
17
property;
18
the first person is taken to have dealt with the money or property.
19
(3) For the purposes of subsection (2), it is immaterial whether the
20
identity of the other person can be established.
21
(4) For the purposes of subsection (2), the conduct of a person
causes
22
another person to deal with money or other property (within the
23
meaning of subsection (1)) if the conduct substantially contributes
24
to the other person dealing with the money or property (within the
25
meaning of subsection (1)).
26
(5) For the purposes of subsection (4), it is immaterial whether the
27
identity of the other person can be established.
28
7 After section 400.2 of the Criminal Code
29
Insert:
30
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
7
400.2AA Effective control of money or property
1
(1) For the purposes of this Division, a person may have
effective
2
control
of money or other property whether or not the person has:
3
(a) a legal or equitable estate or interest in the money or
4
property; or
5
(b) a right, power or privilege in connection with the money or
6
property.
7
(2) For the purposes of this Division, if money or other property is
8
held on trust for the ultimate benefit of a person, the person is
9
taken to have
effective control
of the money or property.
10
(3) For the purposes of this Division, in determining whether or not a
11
person has effective control of money or other property, regard
12
may be had to:
13
(a) shareholdings in, debentures over or directorships of a
14
company that has an interest (whether direct or indirect) in
15
the money or property; and
16
(b) a trust that has a relationship to the money or property; and
17
(c) family, domestic and business relationships between:
18
(i) persons having an interest in the money or property, or
19
in companies of the kind referred to in paragraph (a) or
20
trusts of the kind referred to in paragraph (b); and
21
(ii) other persons.
22
(4) For the purposes of this section, family relationships are taken to
23
include the following (without limitation):
24
(a) relationships between de facto partners;
25
(b) relationships of child and parent that arise if someone is the
26
child of a person because of the definition of
child
in the
27
Dictionary;
28
(c) relationships traced through relationships mentioned in
29
paragraphs (a) and (b).
30
(5) To avoid doubt, for the purposes of this Division, more than one
31
person may have
effective control
of money or other property.
32
8 Subsection 400.2A(1) of the Criminal Code
33
After "sections", insert "400.2B,".
34
Schedule 1
Money laundering
Part 1
General amendments
8
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
9 After section 400.2A of the Criminal Code
1
Insert:
2
400.2B Proceeds of crime etc.--money or property worth
3
$10,000,000 or more
4
Tier 1 offences
5
(1) A person commits an offence if:
6
(a) the person deals with money or other property; and
7
(b) either:
8
(i) the money or property is, and the person believes it to
9
be, proceeds of indictable crime; or
10
(ii) the person intends that the money or property will
11
become an instrument of crime; and
12
(c) at the time of the dealing, the value of the money and other
13
property is $10,000,000 or more.
14
Penalty: Imprisonment for life.
15
(2) A person commits an offence if:
16
(a) the person engages in conduct in relation to money or other
17
property; and
18
(b) the money or property is, and the person believes it to be,
19
proceeds of general crime; and
20
(c) the conduct concealed or disguised any or all of the
21
following:
22
(i) the nature of the money or property;
23
(ii) the value of the money or property;
24
(iii) the source of the money or property;
25
(iv) the location of the money or property;
26
(v) any disposition of the money or property;
27
(vi) any movement of the money or property;
28
(vii) any rights in respect of the money or property;
29
(viii) the identity of any person who has rights in respect of
30
the money or property;
31
(ix) the identity of any person who has effective control of
32
the money or property; and
33
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
9
(d) when the conduct occurs, the value of the money and other
1
property is $10,000,000 or more.
2
Penalty: Imprisonment for life.
3
(3) A person commits an offence if:
4
(a) on 2 or more occasions, the person engages in conduct in
5
relation to money or other property; and
6
(b) for each occasion, the money or property is, and the person
7
believes it to be, proceeds of general crime; and
8
(c) for each occasion, the conduct concealed or disguised any or
9
all of the following:
10
(i) the nature of the money or property;
11
(ii) the value of the money or property;
12
(iii) the source of the money or property;
13
(iv) the location of the money or property;
14
(v) any disposition of the money or property;
15
(vi) any movement of the money or property;
16
(vii) any rights in respect of the money or property;
17
(viii) the identity of any person who has rights in respect of
18
the money or property;
19
(ix) the identity of any person who has effective control of
20
the money or property; and
21
(d) the sum of the values of the money and other property (where
22
each value is worked out as at the time when the relevant
23
conduct occurred) is $10,000,000 or more.
24
Penalty: Imprisonment for life.
25
Tier 2 offences
26
(4) A person commits an offence if:
27
(a) the person deals with money or other property; and
28
(b) either:
29
(i) the money or property is proceeds of indictable crime;
30
or
31
(ii) there is a risk that the money or property will become an
32
instrument of crime; and
33
(c) the person is reckless as to the fact that the money or
34
property is proceeds of indictable crime or the fact that there
35
Schedule 1
Money laundering
Part 1
General amendments
10
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
is a risk that it will become an instrument of crime (as the
1
case requires); and
2
(d) at the time of the dealing, the value of the money and other
3
property is $10,000,000 or more.
4
Penalty: Imprisonment for 15 years, or 900 penalty units, or both.
5
(5) A person commits an offence if:
6
(a) the person engages in conduct in relation to money or other
7
property; and
8
(b) the money or property is proceeds of general crime; and
9
(c) the person is reckless as to the fact that the money or
10
property is proceeds of general crime; and
11
(d) the conduct concealed or disguised any or all of the
12
following:
13
(i) the nature of the money or property;
14
(ii) the value of the money or property;
15
(iii) the source of the money or property;
16
(iv) the location of the money or property;
17
(v) any disposition of the money or property;
18
(vi) any movement of the money or property;
19
(vii) any rights in respect of the money or property;
20
(viii) the identity of any person who has rights in respect of
21
the money or property;
22
(ix) the identity of any person who has effective control of
23
the money or property; and
24
(e) when the conduct occurs, the value of the money and other
25
property is $10,000,000 or more.
26
Penalty: Imprisonment for 15 years, or 900 penalty units, or both.
27
(6) A person commits an offence if:
28
(a) on 2 or more occasions, the person engages in conduct in
29
relation to money or other property; and
30
(b) for each occasion, the money or property is proceeds of
31
general crime; and
32
(c) for each occasion, the person is reckless as to the fact that the
33
money or property is proceeds of general crime; and
34
(d) for each occasion, the conduct concealed or disguised any or
35
all of the following:
36
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
11
(i) the nature of the money or property;
1
(ii) the value of the money or property;
2
(iii) the source of the money or property;
3
(iv) the location of the money or property;
4
(v) any disposition of the money or property;
5
(vi) any movement of the money or property;
6
(vii) any rights in respect of the money or property;
7
(viii) the identity of any person who has rights in respect of
8
the money or property;
9
(ix) the identity of any person who has effective control of
10
the money or property; and
11
(e) the sum of the values of the money and other property (where
12
each value is worked out as at the time when the relevant
13
conduct occurred) is $10,000,000 or more.
14
Penalty: Imprisonment for 15 years, or 900 penalty units, or both.
15
Tier 3 offences
16
(7) A person commits an offence if:
17
(a) the person deals with money or other property; and
18
(b) either:
19
(i) the money or property is proceeds of indictable crime;
20
or
21
(ii) there is a risk that the money or property will become an
22
instrument of crime; and
23
(c) the person is negligent as to the fact that the money or
24
property is proceeds of indictable crime or the fact that there
25
is a risk that it will become an instrument of crime (as the
26
case requires); and
27
(d) at the time of the dealing, the value of the money and other
28
property is $10,000,000 or more.
29
Penalty: Imprisonment for 6 years, or 360 penalty units, or both.
30
(8) A person commits an offence if:
31
(a) the person engages in conduct in relation to money or other
32
property; and
33
(b) the money or property is proceeds of general crime; and
34
Schedule 1
Money laundering
Part 1
General amendments
12
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(c) the person is negligent as to the fact that the money or
1
property is proceeds of general crime; and
2
(d) the conduct concealed or disguised any or all of the
3
following:
4
(i) the nature of the money or property;
5
(ii) the value of the money or property;
6
(iii) the source of the money or property;
7
(iv) the location of the money or property;
8
(v) any disposition of the money or property;
9
(vi) any movement of the money or property;
10
(vii) any rights in respect of the money or property;
11
(viii) the identity of any person who has rights in respect of
12
the money or property;
13
(ix) the identity of any person who has effective control of
14
the money or property; and
15
(e) when the conduct occurs, the value of the money and other
16
property is $10,000,000 or more.
17
Penalty: Imprisonment for 6 years, or 360 penalty units, or both.
18
(9) A person commits an offence if:
19
(a) on 2 or more occasions, the person engages in conduct in
20
relation to money or other property; and
21
(b) for each occasion, the money or property is proceeds of
22
general crime; and
23
(c) for each occasion, the person is negligent as to the fact that
24
the money or property is proceeds of general crime; and
25
(d) for each occasion, the conduct concealed or disguised any or
26
all of the following:
27
(i) the nature of the money or property;
28
(ii) the value of the money or property;
29
(iii) the source of the money or property;
30
(iv) the location of the money or property;
31
(v) any disposition of the money or property;
32
(vi) any movement of the money or property;
33
(vii) any rights in respect of the money or property;
34
(viii) the identity of any person who has rights in respect of
35
the money or property;
36
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
13
(ix) the identity of any person who has effective control of
1
the money or property; and
2
(e) the sum of the values of the money and other property (where
3
each value is worked out as at the time when the relevant
4
conduct occurred) is $10,000,000 or more.
5
Penalty: Imprisonment for 6 years, or 360 penalty units, or both.
6
Absolute liability
7
(10) Absolute liability applies to paragraphs (1)(c), (2)(d), (3)(d), (4)(d),
8
(5)(e), (6)(e), (7)(d), (8)(e) and (9)(e).
9
Note 1:
Section 400.10 provides for a defence of mistake of fact in relation to
10
these paragraphs.
11
Note 2:
Section 400.2A affects the application of this section so far as it
12
relates to a person dealing with money or other property that:
13
(a) is intended by the person to become an instrument of crime; or
14
(b) is at risk of becoming an instrument of crime.
15
10 Section 400.3 (heading)
16
Omit "
Dealing in proceeds of crime
", substitute "
Proceeds of crime
".
17
11 Before subsection 400.3(1) of the
Criminal Code
18
Insert:
19
Tier 1 offences
20
12 Subparagraph 400.3(1)(b)(i) of the
Criminal Code
21
Omit "proceeds of crime", substitute "proceeds of indictable crime".
22
13 After subsection 400.3(1) of the
Criminal Code
23
Insert:
24
(1A) A person commits an offence if:
25
(a) the person engages in conduct in relation to money or other
26
property; and
27
(b) the money or property is, and the person believes it to be,
28
proceeds of general crime; and
29
(c) the conduct concealed or disguised any or all of the
30
following:
31
Schedule 1
Money laundering
Part 1
General amendments
14
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(i) the nature of the money or property;
1
(ii) the value of the money or property;
2
(iii) the source of the money or property;
3
(iv) the location of the money or property;
4
(v) any disposition of the money or property;
5
(vi) any movement of the money or property;
6
(vii) any rights in respect of the money or property;
7
(viii) the identity of any person who has rights in respect of
8
the money or property;
9
(ix) the identity of any person who has effective control of
10
the money or property; and
11
(d) when the conduct occurs, the value of the money and other
12
property is $1,000,000 or more.
13
Penalty: Imprisonment for 25 years, or 1500 penalty units, or
14
both.
15
(1B) A person commits an offence if:
16
(a) on 2 or more occasions, the person engages in conduct in
17
relation to money or other property; and
18
(b) for each occasion, the money or property is, and the person
19
believes it to be, proceeds of general crime; and
20
(c) for each occasion, the conduct concealed or disguised any or
21
all of the following:
22
(i) the nature of the money or property;
23
(ii) the value of the money or property;
24
(iii) the source of the money or property;
25
(iv) the location of the money or property;
26
(v) any disposition of the money or property;
27
(vi) any movement of the money or property;
28
(vii) any rights in respect of the money or property;
29
(viii) the identity of any person who has rights in respect of
30
the money or property;
31
(ix) the identity of any person who has effective control of
32
the money or property; and
33
(d) the sum of the values of the money and other property (where
34
each value is worked out as at the time when the relevant
35
conduct occurred) is $1,000,000 or more.
36
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
15
Penalty: Imprisonment for 25 years, or 1500 penalty units, or
1
both.
2
14 Before subsection 400.3(2) of the
Criminal Code
3
Insert:
4
Tier 2 offences
5
15 Subparagraph 400.3(2)(b)(i) of the
Criminal Code
6
Omit "proceeds of crime", substitute "proceeds of indictable crime".
7
16 Paragraph 400.3(2)(c) of the
Criminal Code
8
Omit "proceeds of crime", substitute "proceeds of indictable crime".
9
17 After subsection 400.3(2) of the
Criminal Code
10
Insert:
11
(2A) A person commits an offence if:
12
(a) the person engages in conduct in relation to money or other
13
property; and
14
(b) the money or property is proceeds of general crime; and
15
(c) the person is reckless as to the fact that the money or
16
property is proceeds of general crime; and
17
(d) the conduct concealed or disguised any or all of the
18
following:
19
(i) the nature of the money or property;
20
(ii) the value of the money or property;
21
(iii) the source of the money or property;
22
(iv) the location of the money or property;
23
(v) any disposition of the money or property;
24
(vi) any movement of the money or property;
25
(vii) any rights in respect of the money or property;
26
(viii) the identity of any person who has rights in respect of
27
the money or property;
28
(ix) the identity of any person who has effective control of
29
the money or property; and
30
(e) when the conduct occurs, the value of the money and other
31
property is $1,000,000 or more.
32
Schedule 1
Money laundering
Part 1
General amendments
16
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
Penalty: Imprisonment for 12 years, or 720 penalty units, or both.
1
(2B) A person commits an offence if:
2
(a) on 2 or more occasions, the person engages in conduct in
3
relation to money or other property; and
4
(b) for each occasion, the money or property is proceeds of
5
general crime; and
6
(c) for each occasion, the person is reckless as to the fact that the
7
money or property is proceeds of general crime; and
8
(d) for each occasion, the conduct concealed or disguised any or
9
all of the following:
10
(i) the nature of the money or property;
11
(ii) the value of the money or property;
12
(iii) the source of the money or property;
13
(iv) the location of the money or property;
14
(v) any disposition of the money or property;
15
(vi) any movement of the money or property;
16
(vii) any rights in respect of the money or property;
17
(viii) the identity of any person who has rights in respect of
18
the money or property;
19
(ix) the identity of any person who has effective control of
20
the money or property; and
21
(e) the sum of the values of the money and other property (where
22
each value is worked out as at the time when the relevant
23
conduct occurred) is $1,000,000 or more.
24
Penalty: Imprisonment for 12 years, or 720 penalty units, or both.
25
18 Before subsection 400.3(3) of the
Criminal Code
26
Insert:
27
Tier 3 offences
28
19 Subparagraph 400.3(3)(b)(i) of the
Criminal Code
29
Omit "proceeds of crime", substitute "proceeds of indictable crime".
30
20 Paragraph 400.3(3)(c) of the
Criminal Code
31
Omit "proceeds of crime", substitute "proceeds of indictable crime".
32
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
17
21 After subsection 400.3(3) of the
Criminal Code
1
Insert:
2
(3A) A person commits an offence if:
3
(a) the person engages in conduct in relation to money or other
4
property; and
5
(b) the money or property is proceeds of general crime; and
6
(c) the person is negligent as to the fact that the money or
7
property is proceeds of general crime; and
8
(d) the conduct concealed or disguised any or all of the
9
following:
10
(i) the nature of the money or property;
11
(ii) the value of the money or property;
12
(iii) the source of the money or property;
13
(iv) the location of the money or property;
14
(v) any disposition of the money or property;
15
(vi) any movement of the money or property;
16
(vii) any rights in respect of the money or property;
17
(viii) the identity of any person who has rights in respect of
18
the money or property;
19
(ix) the identity of any person who has effective control of
20
the money or property; and
21
(e) when the conduct occurs, the value of the money and other
22
property is $1,000,000 or more.
23
Penalty: Imprisonment for 5 years, or 300 penalty units, or both.
24
(3B) A person commits an offence if:
25
(a) on 2 or more occasions, the person engages in conduct in
26
relation to money or other property; and
27
(b) for each occasion, the money or property is proceeds of
28
general crime; and
29
(c) for each occasion, the person is negligent as to the fact that
30
the money or property is proceeds of general crime; and
31
(d) for each occasion, the conduct concealed or disguised any or
32
all of the following:
33
(i) the nature of the money or property;
34
(ii) the value of the money or property;
35
(iii) the source of the money or property;
36
Schedule 1
Money laundering
Part 1
General amendments
18
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(iv) the location of the money or property;
1
(v) any disposition of the money or property;
2
(vi) any movement of the money or property;
3
(vii) any rights in respect of the money or property;
4
(viii) the identity of any person who has rights in respect of
5
the money or property;
6
(ix) the identity of any person who has effective control of
7
the money or property; and
8
(e) the sum of the values of the money and other property (where
9
each value is worked out as at the time when the relevant
10
conduct occurred) is $1,000,000 or more.
11
Penalty: Imprisonment for 5 years, or 300 penalty units, or both.
12
22 Before subsection 400.3(4) of the
Criminal Code
13
Insert:
14
Absolute liability
15
23 Subsection 400.3(4) of the
Criminal Code
16
Omit "(2)(d) and (3)(d)", substitute "(1A)(d), (1B)(d), (2)(d), (2A)(e),
17
(2B)(e), (3)(d), (3A)(e) and (3B)(e)".
18
24 Section 400.4 (heading)
19
Omit "
Dealing in proceeds of crime
", substitute "
Proceeds of crime
".
20
25 Before subsection 400.4(1) of the
Criminal Code
21
Insert:
22
Tier 1 offences
23
26 Subparagraph 400.4(1)(b)(i) of the
Criminal Code
24
Omit "proceeds of crime", substitute "proceeds of indictable crime".
25
27 After subsection 400.4(1) of the
Criminal Code
26
Insert:
27
(1A) A person commits an offence if:
28
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
19
(a) the person engages in conduct in relation to money or other
1
property; and
2
(b) the money or property is, and the person believes it to be,
3
proceeds of general crime; and
4
(c) the conduct concealed or disguised any or all of the
5
following:
6
(i) the nature of the money or property;
7
(ii) the value of the money or property;
8
(iii) the source of the money or property;
9
(iv) the location of the money or property;
10
(v) any disposition of the money or property;
11
(vi) any movement of the money or property;
12
(vii) any rights in respect of the money or property;
13
(viii) the identity of any person who has rights in respect of
14
the money or property;
15
(ix) the identity of any person who has effective control of
16
the money or property; and
17
(d) when the conduct occurs, the value of the money and other
18
property is $100,000 or more.
19
Penalty: Imprisonment for 20 years, or 1200 penalty units, or
20
both.
21
(1B) A person commits an offence if:
22
(a) on 2 or more occasions, the person engages in conduct in
23
relation to money or other property; and
24
(b) for each occasion, the money or property is, and the person
25
believes it to be, proceeds of general crime; and
26
(c) for each occasion, the conduct concealed or disguised any or
27
all of the following:
28
(i) the nature of the money or property;
29
(ii) the value of the money or property;
30
(iii) the source of the money or property;
31
(iv) the location of the money or property;
32
(v) any disposition of the money or property;
33
(vi) any movement of the money or property;
34
(vii) any rights in respect of the money or property;
35
Schedule 1
Money laundering
Part 1
General amendments
20
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(viii) the identity of any person who has rights in respect of
1
the money or property;
2
(ix) the identity of any person who has effective control of
3
the money or property; and
4
(d) the sum of the values of the money and other property (where
5
each value is worked out as at the time when the relevant
6
conduct occurred) is $100,000 or more.
7
Penalty: Imprisonment for 20 years, or 1200 penalty units, or
8
both.
9
28 Before subsection 400.4(2) of the
Criminal Code
10
Insert:
11
Tier 2 offences
12
29 Subparagraph 400.4(2)(b)(i) of the
Criminal Code
13
Omit "proceeds of crime", substitute "proceeds of indictable crime".
14
30 Paragraph 400.4(2)(c) of the
Criminal Code
15
Omit "proceeds of crime", substitute "proceeds of indictable crime".
16
31 After subsection 400.4(2) of the
Criminal Code
17
Insert:
18
(2A) A person commits an offence if:
19
(a) the person engages in conduct in relation to money or other
20
property; and
21
(b) the money or property is proceeds of general crime; and
22
(c) the person is reckless as to the fact that the money or
23
property is proceeds of general crime; and
24
(d) the conduct concealed or disguised any or all of the
25
following:
26
(i) the nature of the money or property;
27
(ii) the value of the money or property;
28
(iii) the source of the money or property;
29
(iv) the location of the money or property;
30
(v) any disposition of the money or property;
31
(vi) any movement of the money or property;
32
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
21
(vii) any rights in respect of the money or property;
1
(viii) the identity of any person who has rights in respect of
2
the money or property;
3
(ix) the identity of any person who has effective control of
4
the money or property; and
5
(e) when the conduct occurs, the value of the money and other
6
property is $100,000 or more.
7
Penalty: Imprisonment for 10 years, or 600 penalty units, or both.
8
(2B) A person commits an offence if:
9
(a) on 2 or more occasions, the person engages in conduct in
10
relation to money or other property; and
11
(b) for each occasion, the money or property is proceeds of
12
general crime; and
13
(c) for each occasion, the person is reckless as to the fact that the
14
money or property is proceeds of general crime; and
15
(d) for each occasion, the conduct concealed or disguised any or
16
all of the following:
17
(i) the nature of the money or property;
18
(ii) the value of the money or property;
19
(iii) the source of the money or property;
20
(iv) the location of the money or property;
21
(v) any disposition of the money or property;
22
(vi) any movement of the money or property;
23
(vii) any rights in respect of the money or property;
24
(viii) the identity of any person who has rights in respect of
25
the money or property;
26
(ix) the identity of any person who has effective control of
27
the money or property; and
28
(e) the sum of the values of the money and other property (where
29
each value is worked out as at the time when the relevant
30
conduct occurred) is $100,000 or more.
31
Penalty: Imprisonment for 10 years, or 600 penalty units, or both.
32
32 Before subsection 400.4(3) of the
Criminal Code
33
Insert:
34
Schedule 1
Money laundering
Part 1
General amendments
22
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
Tier 3 offences
1
33 Subparagraph 400.4(3)(b)(i) of the
Criminal Code
2
Omit "proceeds of crime", substitute "proceeds of indictable crime".
3
34 Paragraph 400.4(3)(c) of the
Criminal Code
4
Omit "proceeds of crime", substitute "proceeds of indictable crime".
5
35 After subsection 400.4(3) of the
Criminal Code
6
Insert:
7
(3A) A person commits an offence if:
8
(a) the person engages in conduct in relation to money or other
9
property; and
10
(b) the money or property is proceeds of general crime; and
11
(c) the person is negligent as to the fact that the money or
12
property is proceeds of general crime; and
13
(d) the conduct concealed or disguised any or all of the
14
following:
15
(i) the nature of the money or property;
16
(ii) the value of the money or property;
17
(iii) the source of the money or property;
18
(iv) the location of the money or property;
19
(v) any disposition of the money or property;
20
(vi) any movement of the money or property;
21
(vii) any rights in respect of the money or property;
22
(viii) the identity of any person who has rights in respect of
23
the money or property;
24
(ix) the identity of any person who has effective control of
25
the money or property; and
26
(e) when the conduct occurs, the value of the money and other
27
property is $100,000 or more.
28
Penalty: Imprisonment for 4 years, or 240 penalty units, or both.
29
(3B) A person commits an offence if:
30
(a) on 2 or more occasions, the person engages in conduct in
31
relation to money or other property; and
32
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
23
(b) for each occasion, the money or property is proceeds of
1
general crime; and
2
(c) for each occasion, the person is negligent as to the fact that
3
the money or property is proceeds of general crime; and
4
(d) for each occasion, the conduct concealed or disguised any or
5
all of the following:
6
(i) the nature of the money or property;
7
(ii) the value of the money or property;
8
(iii) the source of the money or property;
9
(iv) the location of the money or property;
10
(v) any disposition of the money or property;
11
(vi) any movement of the money or property;
12
(vii) any rights in respect of the money or property;
13
(viii) the identity of any person who has rights in respect of
14
the money or property;
15
(ix) the identity of any person who has effective control of
16
the money or property; and
17
(e) the sum of the values of the money and other property (where
18
each value is worked out as at the time when the relevant
19
conduct occurred) is $100,000 or more.
20
Penalty: Imprisonment for 4 years, or 240 penalty units, or both.
21
36 Before subsection 400.4(4) of the
Criminal Code
22
Insert:
23
Absolute liability
24
37 Subsection 400.4(4) of the
Criminal Code
25
Omit "(2)(d) and (3)(d)", substitute "(1A)(d), (1B)(d), (2)(d), (2A)(e),
26
(2B)(e), (3)(d), (3A)(e) and (3B)(e)".
27
38 Section 400.5 (heading)
28
Omit "
Dealing in proceeds of crime
", substitute "
Proceeds of crime
".
29
39 Subparagraph 400.5(1)(b)(i) of the
Criminal Code
30
Omit "proceeds of crime", substitute "proceeds of indictable crime".
31
Schedule 1
Money laundering
Part 1
General amendments
24
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
40 Subparagraph 400.5(2)(b)(i) of the
Criminal Code
1
Omit "proceeds of crime", substitute "proceeds of indictable crime".
2
41 Paragraph 400.5(2)(c) of the
Criminal Code
3
Omit "proceeds of crime", substitute "proceeds of indictable crime".
4
42 Subparagraph 400.5(3)(b)(i) of the
Criminal Code
5
Omit "proceeds of crime", substitute "proceeds of indictable crime".
6
43 Paragraph 400.5(3)(c) of the
Criminal Code
7
Omit "proceeds of crime", substitute "proceeds of indictable crime".
8
44 Section 400.6 (heading)
9
Omit "
Dealing in proceeds of crime
", substitute "
Proceeds of crime
".
10
45 Subparagraph 400.6(1)(b)(i) of the
Criminal Code
11
Omit "proceeds of crime", substitute "proceeds of indictable crime".
12
46 Subparagraph 400.6(2)(b)(i) of the
Criminal Code
13
Omit "proceeds of crime", substitute "proceeds of indictable crime".
14
47 Paragraph 400.6(2)(c) of the
Criminal Code
15
Omit "proceeds of crime", substitute "proceeds of indictable crime".
16
48 Subparagraph 400.6(3)(b)(i) of the
Criminal Code
17
Omit "proceeds of crime", substitute "proceeds of indictable crime".
18
49 Paragraph 400.6(3)(c) of the
Criminal Code
19
Omit "proceeds of crime", substitute "proceeds of indictable crime".
20
50 Section 400.7 (heading)
21
Omit "
Dealing in proceeds of crime
", substitute "
Proceeds of crime
".
22
51 Subparagraph 400.7(1)(b)(i) of the
Criminal Code
23
Omit "proceeds of crime", substitute "proceeds of indictable crime".
24
52 Subparagraph 400.7(2)(b)(i) of the
Criminal Code
25
Omit "proceeds of crime", substitute "proceeds of indictable crime".
26
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
25
53 Paragraph 400.7(2)(c) of the
Criminal Code
1
Omit "proceeds of crime", substitute "proceeds of indictable crime".
2
54 Subparagraph 400.7(3)(b)(i) of the
Criminal Code
3
Omit "proceeds of crime", substitute "proceeds of indictable crime".
4
55 Paragraph 400.7(3)(c) of the
Criminal Code
5
Omit "proceeds of crime", substitute "proceeds of indictable crime".
6
56 Section 400.8 (heading)
7
Omit "
Dealing in proceeds of crime
", substitute "
Proceeds of crime
".
8
57 Subparagraph 400.8(1)(b)(i) of the
Criminal Code
9
Omit "proceeds of crime", substitute "proceeds of indictable crime".
10
58 Subparagraph 400.8(2)(b)(i) of the
Criminal Code
11
Omit "proceeds of crime", substitute "proceeds of indictable crime".
12
59 Paragraph 400.8(2)(c) of the
Criminal Code
13
Omit "proceeds of crime", substitute "proceeds of indictable crime".
14
60 Subparagraph 400.8(3)(b)(i) of the
Criminal Code
15
Omit "proceeds of crime", substitute "proceeds of indictable crime".
16
61 Paragraph 400.8(3)(c) of the
Criminal Code
17
Omit "proceeds of crime", substitute "proceeds of indictable crime".
18
62 Before subsection 400.9(1) of the
Criminal Code
19
Insert:
20
(1AA) A person commits an offence if:
21
(a) the person deals with money or other property; and
22
(b) it is reasonable to suspect that the money or property is
23
proceeds of indictable crime; and
24
(c) at the time of the dealing, the value of the money and other
25
property is $10,000,000 or more.
26
Penalty: Imprisonment for 5 years, or 300 penalty units, or both.
27
Schedule 1
Money laundering
Part 1
General amendments
26
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(1AB) A person commits an offence if:
1
(a) the person deals with money or other property; and
2
(b) it is reasonable to suspect that the money or property is
3
proceeds of indictable crime; and
4
(c) at the time of the dealing, the value of the money and other
5
property is $1,000,000 or more.
6
Penalty: Imprisonment for 4 years, or 240 penalty units, or both.
7
63 Paragraph 400.9(1)(b) of the
Criminal Code
8
Omit "proceeds of crime", substitute "proceeds of indictable crime".
9
64 Paragraph 400.9(1A)(b) of the
Criminal Code
10
Omit "proceeds of crime", substitute "proceeds of indictable crime".
11
65 Subsection 400.9(2) of the
Criminal Code
12
Omit "Without limiting paragraph (1)(b) or (1A)(b), that paragraph is
13
taken to be satisfied if:", substitute "For the purposes of this section, it
14
is taken to be reasonable to suspect that money or other property is
15
proceeds of indictable crime if:".
16
66 Paragraph 400.9(2)(a) of the
Criminal Code
17
Omit "referred to in paragraph (1)(a)", substitute "constituting the
18
offence".
19
67 Subsection 400.9(4) of the
Criminal Code
20
Before "(1)(b)", insert "(1AA)(b) and (c), (1AB)(b) and (c),".
21
68 Subsection 400.10(1) of the
Criminal Code
22
Before "400.3", insert "400.2B,".
23
69 Subsection 400.10(1) of the
Criminal Code
24
After "400.9", insert "(other than an offence against a proceeds of
25
general crime offence provision)".
26
70 After paragraph 400.10(1)(a) of the
Criminal Code
27
Insert:
28
(aa) in a case where the dealing continued during a period--the
29
person had that belief throughout that period; and
30
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
27
71 Subsection 400.10(1) of the
Criminal Code
(example)
1
Omit "proceeds of crime" (wherever occurring), substitute "proceeds of
2
indictable crime".
3
72 After subsection 400.10(1) of the
Criminal Code
4
Insert:
5
(1A) A person is not criminally responsible for an offence against a
6
proceeds of general crime offence provision that relates to
7
engaging in conduct in relation to money or property if:
8
(a) at or before the time of engaging in the conduct, the person
9
considered what was the value of the money or property, and
10
was under a mistaken but reasonable belief about that value;
11
and
12
(b) in a case where the conduct continued during a period--the
13
person had that belief throughout that period; and
14
(c) had the value been what the person believed it to be, the
15
person's conduct would have constituted another offence
16
against this Division for which the maximum penalty, in
17
penalty units, is less than the maximum penalty, in penalty
18
units, for the offence charged.
19
Note:
A defendant bears an evidential burden in relation to the matter in
20
subsection (1A) (see subsection 13.3(3)).
21
73 At the end of section 400.11 of the
Criminal Code
22
Add:
23
; (h) whether an offence is a foreign offence.
24
74 Subsection 400.12(1)
25
After "this Division"(whenever occurring), insert "(other than a
26
proceeds of general crime offence provision)".
27
75 Subsection 400.13(1) of the
Criminal Code
28
Repeal the subsection, substitute:
29
(1) To avoid doubt, it is not necessary, in order to prove for the
30
purposes of this Division that money or property is proceeds of
31
general crime, to establish that:
32
(a) a particular offence, or an offence of a particular kind, was
33
committed in relation to the money or property; or
34
Schedule 1
Money laundering
Part 1
General amendments
28
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(b) a particular person committed an offence, or an offence of a
1
particular kind, in relation to the money or property.
2
(1A) To avoid doubt, it is not necessary, in order to prove for the
3
purposes of this Division that money or property is proceeds of
4
indictable crime covered by paragraph (a) of the definition of
5
proceeds of indictable crime
in subsection 400.1(1), to establish
6
that a particular person committed an offence in relation to the
7
money or property.
8
(1B) To avoid doubt, it is not necessary, in order to prove for the
9
purposes of this Division that money or property is proceeds of
10
indictable crime covered by paragraph (b) of the definition of
11
proceeds of indictable crime
in subsection 400.1(1), to establish
12
that:
13
(a) a particular offence was committed in relation to the money
14
or property; or
15
(b) a particular person committed an offence in relation to the
16
money or property.
17
76 After section 400.14 of the
Criminal Code
18
Insert:
19
400.14A Recklessness as to nature of money or property sufficient
20
for offence of attempt to commit an offence against
21
certain provisions of this Part
22
(1) Despite subsection 11.1(3), for the offence of attempting to commit
23
an offence against any of the following provisions:
24
(a) subsection 400.2B(4);
25
(b) subsection 400.2B(5);
26
(c) subsection 400.2B(6);
27
(d) subsection 400.2B(7);
28
(e) subsection 400.2B(8);
29
(f) subsection 400.2B(9);
30
(g) subsection 400.3(2);
31
(h) subsection 400.3(2A);
32
(i) subsection 400.3(2B);
33
(j) subsection 400.3(3);
34
(k) subsection 400.3(3A);
35
Money laundering
Schedule 1
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
29
(l) subsection 400.3(3B);
1
(m) subsection 400.4(2);
2
(n) subsection 400.4(2A);
3
(o) subsection 400.4(2B);
4
(p) subsection 400.4(3);
5
(q) subsection 400.4(3A);
6
(r) subsection 400.4(3B);
7
(s) subsection 400.5(2);
8
(t) subsection 400.5(3);
9
(u) subsection 400.6(2);
10
(v) subsection 400.6(3);
11
(w) subsection 400.7(2);
12
(x) subsection 400.7(3);
13
(y) subsection 400.8(2);
14
(z) subsection 400.8(3);
15
recklessness is the fault element in relation to whichever of the
16
following is a physical element of the offence attempted:
17
(za) that money or property is proceeds of indictable crime;
18
(zb) that money or property is proceeds of general crime.
19
Note:
Proof of intention, knowledge or recklessness will satisfy a fault
20
element of recklessness: see subsection 5.4(4)
21
77 Paragraph 400.15(1)(b) of the
Criminal Code
22
Before "the conduct", insert "except in the case of an alleged offence
23
against a proceeds of general crime offence provision--".
24
78 Subparagraph 400.15(1)(b)(i) of the
Criminal Code
25
Omit "proceeds of crime", substitute "proceeds of indictable crime".
26
79 After paragraph 400.15(1)(b) of the
Criminal Code
27
Insert:
28
(ba) in the case of an alleged offence against a proceeds of general
29
crime offence provision:
30
(i) the conduct constituting the alleged offence occurs
31
wholly outside Australia (but not on board an Australian
32
aircraft or an Australian ship); and
33
Schedule 1
Money laundering
Part 1
General amendments
30
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(ii) the money or other property is proceeds of general
1
crime in relation to an offence against a law of the
2
Commonwealth, an offence against a law of a State, an
3
offence against a law of the Australian Capital Territory
4
or an offence against a law of the Northern Territory; or
5
Division 2
--Application of amendments
6
80 Application of amendments
7
The amendments made by this Part, so far as they relate to:
8
(a) a dealing with money or other property; or
9
(b) other conduct engaged in by a person;
10
apply in relation to a dealing with money or other property, or other
11
conduct engaged in by a person, as the case requires, that occurs after
12
the commencement of this item.
13
Money laundering
Schedule 1
Amendments contingent on the commencement of the Anti-Money Laundering and
Counter-Terrorism Financing and Other Legislation Amendment Act 2020
Part 2
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
31
Part 2--Amendments contingent on the
1
commencement of the Anti-Money
2
Laundering and Counter-Terrorism
3
Financing and Other Legislation
4
Amendment Act 2020
5
Division 1
--Amendments
6
Criminal Code Act 1995
7
81 Section 400.10A of the
Criminal Code
(at the end of the
8
heading)
9
Add "
--proceeds of indictable crime
".
10
82 Subsection 400.10A(1) of the
Criminal Code
11
After "against section", insert "400.2B,".
12
83 Subsection 400.10A(1) of the
Criminal Code
13
After "400.8", insert "(other than an offence against a proceeds of
14
general crime offence provision)".
15
84 Subsection 400.10A(1) of the
Criminal Code
16
Omit "proceeds of crime", substitute "proceeds of indictable crime".
17
85 After section 400.10A of the
Criminal Code
)
18
Insert:
19
400.10B Effect of money or property being provided as part of a
20
controlled operation--proceeds of general crime
21
(1) In a prosecution for an offence against a proceeds of general crime
22
offence provision by a person in relation to the person engaging in
23
conduct in relation to money or other property, it is not necessary
24
to prove that the money or property is proceeds of general crime if
25
it is proved that, as part of a controlled operation in relation to
26
suspected offences against this Division, either of the following
27
provided the money or property:
28
Schedule 1
Money laundering
Part 2
Amendments contingent on the commencement of the Anti-Money Laundering
and Counter-Terrorism Financing and Other Legislation Amendment Act 2020
32
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(a) a law enforcement participant in the controlled operation;
1
(b) a civilian participant in the controlled operation, acting in
2
accordance with the instructions of a law enforcement
3
officer.
4
(2) In this section:
5
civilian participant
in a controlled operation has the meaning
6
given by Part IAB of the
Crimes Act 1914
.
7
controlled operation
has the meaning given by Part IAB of the
8
Crimes Act 1914
.
9
Division 2
--Application of amendments
10
86 Application of amendments
11
(1)
The amendments of section 400.10A of the
Criminal Code
made by this
12
Part apply in relation to a dealing with money or other property that
13
occurs after the commencement of this item.
14
(2)
Section 400.10B of the
Criminal Code
(as inserted by this Part) applies
15
in relation to conduct engaged in by a person in relation to money or
16
other property after the commencement of this item.
17
Investigation of Commonwealth offences
Schedule 2
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
33
Schedule 2--Investigation of Commonwealth
1
offences
2
3
Crimes Act 1914
4
1 Subsection 23B(1)
5
Insert:
6
designated official
means:
7
(a) a member or special member of the Australian Federal
8
Police; or
9
(b) a member of the police force of a State or Territory; or
10
(c) a person who holds an office the functions of which include
11
the investigation of Commonwealth offences and who is
12
empowered by a law of the Commonwealth because of the
13
holding of that office to make arrests in respect of such
14
offences.
15
2 Subsection 23B(1) (paragraph (a) of the definition of
16
investigating official
)
17
After "Australian Federal Police", insert "(other than a member or
18
special member of the Australian Federal Police who is engaged in
19
covert investigations under the orders of a superior)".
20
3 Subsection 23B(1) (paragraph (b) of the definition of
21
investigating official
)
22
After "Territory", insert "(other than a member of the police force of a
23
State or Territory who is engaged in covert investigations under the
24
orders of a superior)".
25
4 Subsection 23B(1) (at the end of paragraph (c) of the
26
definition of
investigating official
)
27
Add "(other than a person who is engaged in covert investigations under
28
the orders of a superior)".
29
5 Paragraph 23B(4)(a)
30
Omit "an investigating official", substitute "a designated official".
31
Schedule 2
Investigation of Commonwealth offences
34
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
6 Subsection 23V(3)
1
Repeal the subsection.
2
Buy-backs
Schedule 3
Amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
35
Schedule 3--Buy-backs
1
Part 1--Amendments
2
Proceeds of Crime Act 2002
3
1 Section 57
4
Repeal the section, substitute:
5
57 Court may make orders relating to buying back forfeited
6
property
7
(1) If:
8
(a) a court makes a
*
forfeiture order against property; and
9
(b) a person who claims to have had an
*
interest in the property
10
before the forfeiture order was made has made an application
11
under section 57A for an order under this section; and
12
(c) the court is satisfied that the person had the interest
13
immediately before the forfeiture order was made; and
14
(d) the court is satisfied that the person is not a
*
suspect in
15
relation to the forfeiture order; and
16
(e) in a case where the property was covered by a
*
restraining
17
order when the forfeiture order was made--the court is
18
satisfied that the person is not a suspect in relation to the
19
restraining order; and
20
(f) in a case where the forfeiture order was made under
21
section 47 or 48--the court is satisfied that, when the conduct
22
that is the subject of the forfeiture order occurred, the person
23
had no knowledge of the conduct; and
24
(g) in a case where the property was
*
proceeds of an offence or
25
an
*
instrument of an offence--the court is satisfied that,
26
when the property became proceeds of an offence or an
27
instrument of an offence, the person had no knowledge of the
28
conduct constituting the offence; and
29
(h) the court is satisfied that, if the interest were to be transferred
30
to the person under section 89:
31
(i) the amount paid to the Commonwealth under
32
paragraph 89(1)(c) would not be property that is
33
covered by subsection (6); and
34
Schedule 3
Buy-backs
Part 1
Amendments
36
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(ii) if the whole or a part of the amount paid to the
1
Commonwealth under paragraph 89(1)(c) would be
2
borrowed by the person under a loan--the person's
3
financial circumstances are such that the person will be
4
able to repay the loan, meet the person's eligible living
5
expenses and meet any eligible debts of the person,
6
using property that is not covered by subsection (6); and
7
(i) the court is satisfied that:
8
(i) it would not be contrary to the public interest for the
9
interest to be transferred to the person; and
10
(ii) there is no other reason why the interest should not be
11
transferred to the person;
12
the court may make an order:
13
(j) declaring the nature, extent and value (as at the time when
14
the order is made under this subsection) of the interest; and
15
(k) declaring that the interest may be excluded, under section 89,
16
from the operation of the forfeiture order.
17
Note:
Money can be property.
18
(2) For the purposes of this section, it is immaterial whether the loan
19
mentioned in subparagraph (1)(h)(ii) was made under an
20
arrangement entered into before or after the application mentioned
21
in paragraph (1)(b) was made.
22
(3) For the purposes of this section,
loan
includes anything that may
23
reasonably be regarded as equivalent to a loan, and
borrow
has a
24
corresponding meaning.
25
(4) For the purposes of this section, each of the following are
eligible
26
living expenses
of the person:
27
(a) the person's reasonable living expenses;
28
(b) the reasonable living expenses of any of the
*
dependants of
29
the person;
30
(c) the reasonable business expenses of the person.
31
(5) For the purposes of this section, an
eligible debt
of the person is a
32
debt incurred in good faith by the person.
33
(6) This subsection covers any of the following property:
34
(a) property that is wholly or partly derived or realised by the
35
person, directly or indirectly, from
*
unlawful activity;
36
Buy-backs
Schedule 3
Amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
37
(b) property that is used in, or in connection with, the
1
commission of unlawful activity;
2
(c) property that is intended to be used in, or in connection with,
3
the commission of unlawful activity.
4
57A Applying for an order under section 57
5
Before a forfeiture order has been made
6
(1) A person may apply to a court for an order under section 57 in
7
relation to an
*
interest in property if an application for a
*
forfeiture
8
order that could specify property in which the person claims that
9
interest has been made to the court, but the forfeiture order is yet to
10
be made.
11
After a forfeiture order has been made
12
(2) A person who claims to have had an
*
interest in property specified
13
in a
*
forfeiture order immediately before the forfeiture order was
14
made may, at any time after the forfeiture order is made, apply to
15
the court that made the forfeiture order for an order under
16
section 57 in relation to the interest.
17
(3) However, unless the court gives leave, the person cannot apply
18
under subsection (2) if the person:
19
(a) was notified of the application for the
*
forfeiture order, but
20
did not make an application under subsection (1) before the
21
forfeiture order was made; or
22
(b) appeared at the hearing of the application for the forfeiture
23
order.
24
(4) The court may give the person leave to apply under subsection (2)
25
if the court is satisfied that:
26
(a) if the person was notified of the application for the
*
forfeiture
27
order, but did not make an application under subsection (1)
28
before the forfeiture order was made--the person had a good
29
reason for not making an application under subsection (1)
30
before the forfeiture order was made; or
31
(b) in any case:
32
(i) the person now has evidence relevant to the making of
33
the section 57 order that was not available to the person
34
at the time the forfeiture order was made; or
35
Schedule 3
Buy-backs
Part 1
Amendments
38
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(ii) there are other special grounds for granting the leave.
1
(5) However, the court must not hear an application under
2
subsection (2) if:
3
(a) the
*
Official Trustee has taken any action in relation to the
4
property under section 70; and
5
(b) it would not be practicable for the court to make an order in
6
relation to the interest under section 57.
7
Other matters
8
(6) An applicant under subsection (1) or (2) must give written notice to
9
the
*
responsible authority of both the application and the grounds
10
on which the order is sought.
11
(7) The
*
responsible authority may appear and adduce evidence at the
12
hearing of an application under subsection (1) or (2).
13
(8) To avoid doubt, the
*
responsible authority may represent the
14
Commonwealth in proceedings relating to an application under
15
subsection (1) or (2).
16
(9) The
*
responsible authority must give an applicant under
17
subsection (1) or (2) notice of any grounds on which it proposes to
18
contest the application. However, the authority need not do so until
19
it has had a reasonable opportunity to conduct
*
examinations in
20
relation to the application.
21
(10) An application under subsection (1) or (2) must not be heard until
22
the
*
responsible authority has had a reasonable opportunity to
23
conduct
*
examinations in relation to the application.
24
2 Section 103
25
Repeal the section, substitute:
26
103 Court may make orders relating to buying back forfeited
27
property
28
(1) If property is forfeited to the Commonwealth under section 92, the
29
court that made the
*
restraining order referred to in
30
paragraph 92(1)(b) may, if:
31
Buy-backs
Schedule 3
Amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
39
(a) a person who claims to have had an
*
interest in the property
1
before the forfeiture has made an application under
2
section 104A for an order under this section; and
3
(b) the court is satisfied that the person had the interest
4
immediately before the forfeiture; and
5
(c) the court is satisfied that the person is not a
*
suspect in
6
relation to the restraining order; and
7
(d) the court is satisfied that, at the time when the offence
8
mentioned in paragraph 92(1)(a) was committed, the person
9
did not have knowledge of the conduct constituting the
10
offence; and
11
(e) in a case where the property was
*
proceeds of an offence or
12
an
*
instrument of an offence--the court is satisfied that,
13
when the property became proceeds of an offence or an
14
instrument of an offence, the person had no knowledge of the
15
conduct constituting the offence; and
16
(f) the court is satisfied that, if the interest were to be transferred
17
to the person under section 105:
18
(i) the amount paid to the Commonwealth under
19
paragraph 105(1)(c) would not be property that is
20
covered by subsection (6); and
21
(ii) if the whole or a part of the amount paid to the
22
Commonwealth under paragraph 105(1)(c) would be
23
borrowed by the person under a loan--the person's
24
financial circumstances are such that the person will be
25
able to repay the loan, meet the person's eligible living
26
expenses and meet any eligible debts of the person,
27
using property that is not covered by subsection (6); and
28
(g) the court is satisfied that:
29
(i) it would not be contrary to the public interest for the
30
interest to be transferred to the person; and
31
(ii) there is no other reason why the interest should not be
32
transferred to the person;
33
make an order:
34
(h) declaring the nature, extent and value (as at the time when
35
the order is made under this subsection) of the interest; and
36
(i) declaring that the forfeiture ceases to operate in relation to
37
the interest if payment is made under section 105.
38
Note:
Money can be property.
39
Schedule 3
Buy-backs
Part 1
Amendments
40
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(2) For the purposes of this section, it is immaterial whether the loan
1
mentioned in subparagraph (1)(f)(ii) was made under an
2
arrangement entered into before or after the application mentioned
3
in paragraph (1)(a) was made.
4
(3) For the purposes of this section,
loan
includes anything that may
5
reasonably be regarded as equivalent to a loan, and
borrow
has a
6
corresponding meaning.
7
(4) For the purposes of this section, each of the following are
eligible
8
living expenses
of the person:
9
(a) the person's reasonable living expenses;
10
(b) the reasonable living expenses of any of the
*
dependants of
11
the person;
12
(c) the reasonable business expenses of the person.
13
(5) For the purposes of this section, an
eligible debt
of the person is a
14
debt incurred in good faith by the person.
15
(6) This subsection covers any of the following property:
16
(a) property that is wholly or partly derived or realised by the
17
person, directly or indirectly, from
*
unlawful activity;
18
(b) property that is used in, or in connection with, the
19
commission of unlawful activity;
20
(c) property that is intended to be used in, or in connection with,
21
the commission of unlawful activity.
22
3 Section 104 (heading)
23
Omit "
orders under section 102 or 103
", substitute "
an order under
24
section 102
".
25
4 Subsection 104(1)
26
Omit "or 103".
27
5 After section 104
28
Insert:
29
104A Applying for an order under section 103
30
(1) A person who claims an
*
interest in property covered by a
31
*
restraining order referred to in paragraph 92(1)(b) may apply to
32
Buy-backs
Schedule 3
Amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
41
the court that made the restraining order for an order under
1
section 103 at any time.
2
(2) However, if the property has already been forfeited under
3
section 92, the person cannot, unless the court gives leave, apply
4
under subsection (1) of this section if the person:
5
(a) either:
6
(i) was given a notice under subsection 92A(1) in relation
7
to the property; or
8
(ii) was not given such a notice because of
9
subsection 92A(2); and
10
(b) did not make the application under subsection (1) of this
11
section before that forfeiture.
12
(3) The court may give the person leave to apply if the court is
13
satisfied that:
14
(a) the person had a good reason for not making the application
15
before that forfeiture; or
16
(b) the person now has evidence relevant to the application that
17
was not available before that forfeiture; or
18
(c) there are special grounds for granting the leave.
19
(4) However, the court must not hear an application under
20
subsection (1) if:
21
(a) the
*
Official Trustee has taken any action in relation to the
22
property under section 100; and
23
(b) it would not be practicable for the court to make an order in
24
relation to the interest under section 103.
25
(5) The person must give written notice to the
*
responsible authority of
26
both the application and the grounds on which the order is sought.
27
(6) The
*
responsible authority may appear and adduce evidence at the
28
hearing of the application.
29
(7) To avoid doubt, the
*
responsible authority may represent the
30
Commonwealth in proceedings relating to an application under
31
subsection (1).
32
(8) The
*
responsible authority must give the applicant notice of any
33
grounds on which it proposes to contest the application. However,
34
Schedule 3
Buy-backs
Part 1
Amendments
42
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
the authority need not do so until it has had a reasonable
1
opportunity to conduct
*
examinations in relation to the application.
2
(9) The application must not be heard until the
*
responsible authority
3
has had a reasonable opportunity to conduct
*
examinations in
4
relation to the application.
5
6 After section 181
6
Insert:
7
181A Examination orders relating to applications under section 57A
8
(1) If an application for an order under section 57 (which deals with
9
buying back forfeited property) is made under section 57A in
10
relation to property that is the subject of a
*
forfeiture order, the
11
court to which the application is made may make an order (an
12
examination order
) for the
*
examination of any person including:
13
(a) the person who made the application; or
14
(b) a person who is a
*
suspect in relation to the forfeiture order;
15
or
16
(c) in a case where the property was covered by a
*
restraining
17
order when the forfeiture order was made--a person who is a
18
suspect in relation to the restraining order; or
19
(d) the spouse or
*
de facto partner of a person referred to in
20
paragraph (a), (b) or (c);
21
about the
*
affairs of a person referred to in paragraph (a), (b), (c) or
22
(d).
23
(2) The
*
examination order ceases to have effect when:
24
(a) the application is withdrawn; or
25
(b) the court makes a decision on the application.
26
181B Examination orders relating to applications under
27
section 104A
28
(1) If an application for an order under section 103 (which deals with
29
buying back forfeited property) is made under section 104A in
30
relation to property, the court to which the application is made may
31
make an order (an
examination order
) for the
*
examination of any
32
person including:
33
Buy-backs
Schedule 3
Amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
43
(a) the person who made the application; or
1
(b) a person who is a
*
suspect in relation to the
*
restraining order
2
mentioned in section 103; or
3
(c) the spouse or
*
de facto partner of a person referred to in
4
paragraph (a) or (b);
5
about the
*
affairs of a person referred to in paragraph (a), (b) or (c).
6
(2) The
*
examination order ceases to have effect when:
7
(a) the application is withdrawn; or
8
(b) the court makes a decision on the application.
9
7 At the end of subsection 187(4)
10
Add:
11
; or (c) if the examination relates to an application for an order under
12
section 57 and the person is no longer a person whose affairs
13
can, under section 181A, be subject to the examination; or
14
(d) if the examination relates to an application for an order under
15
section 103 and the person is no longer a person whose
16
affairs can, under section 181B, be subject to the
17
examination.
18
8 Paragraph 187(5)(b)
19
Omit "or 181", substitute ", 181, 181A or 181B".
20
9 After paragraph 202(5)(eb)
21
Insert:
22
(ec) a document relevant to determining whether, in a case where
23
a person has made an application under section 57A for an
24
order under section 57 in relation to an
*
interest in property:
25
(i) the amount paid to the Commonwealth under
26
paragraph 89(1)(c) would not be property that is
27
covered by subsection 57(6); and
28
(ii) if the whole or a part of the amount paid to the
29
Commonwealth under paragraph 89(1)(c) would be
30
borrowed by the person under a loan--the person's
31
financial circumstances are such that the person will be
32
able to repay the loan, meet the person's eligible living
33
expenses and meet any eligible debts of the person,
34
Schedule 3
Buy-backs
Part 1
Amendments
44
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
using property that is not covered by subsection 57(6);
1
and
2
(ed) a document relevant to determining whether, in a case where
3
a person has made an application under section 104A for an
4
order under section 103 in relation to an interest in property:
5
(i) the amount paid to the Commonwealth under
6
paragraph 105(1)(c) would not be property that is
7
covered by subsection 103(6); and
8
(ii) if the whole or a part of the amount paid to the
9
Commonwealth under paragraph 105(1)(c) would be
10
borrowed by the person under a loan--the person's
11
financial circumstances are such that the person will be
12
able to repay the loan, meet the person's eligible living
13
expenses and meet any eligible debts of the person,
14
using property that is not covered by subsection 103(6);
15
and
16
10 Paragraph 202(5)(f)
17
Omit "or (eb)", substitute ", (eb), (ec) or (ed)".
18
11 At the end of section 202
19
Add:
20
(7) For the purposes of this section, it is immaterial whether the loan
21
mentioned in subparagraph (5)(ec)(ii) was made under an
22
arrangement entered into before or after the making of the
23
application mentioned in paragraph (5)(ec).
24
(8) For the purposes of this section, it is immaterial whether the loan
25
mentioned in subparagraph (5)(ed)(ii) was made under an
26
arrangement entered into before or after the making of the
27
application mentioned in paragraph (5)(ed).
28
(9) For the purposes of this section,
loan
includes anything that may
29
reasonably be regarded as equivalent to a loan, and
borrow
has a
30
corresponding meaning.
31
(10) For the purposes of this section, each of the following are
eligible
32
living expenses
of a person:
33
(a) the person's reasonable living expenses;
34
Buy-backs
Schedule 3
Amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
45
(b) the reasonable living expenses of any of the
*
dependants of
1
the person;
2
(c) the reasonable business expenses of the person.
3
(11) For the purposes of this section, an
eligible debt
of a person is a
4
debt incurred in good faith by the person.
5
12 Section 338 (definition of
examination order
)
6
Omit "or 181", substitute ", 181, 181A or 181B".
7
13 Section 338 (before paragraph (h) of the definition of
8
serious offence
)
9
Insert:
10
(gh) an offence against section 195, 196 or 197A that relates to an
11
*
examination of a person who is the subject of an
12
*
examination order under section 181A, if the person
13
committing the offence:
14
(i) is covered by paragraph 181A(1)(a), (b) or (c); or
15
(ii) is or was a party to proceedings relating to the
16
application mentioned in section 181A; or
17
(gi) an offence against section 195, 196 or 197A that relates to an
18
examination of a person who is the subject of an examination
19
order under section 181B, if the person committing the
20
offence:
21
(i) is covered by paragraph 181B(1)(a) or (b); or
22
(ii) is or was a party to proceedings relating to the
23
application mentioned in section 181B; or
24
Schedule 3
Buy-backs
Part 2
Transitional provisions
46
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
Part 2--Transitional provisions
1
14 Transitional
--section 57 of the
Proceeds of Crime Act
2
2002
3
Despite the amendment made by item 1, the
Proceeds of Crime Act
4
2002
continues to apply, in relation to:
5
(a) an application made before the commencement of this item
6
for an order under section 57 of that Act; and
7
(b) an order made under section 57 of that Act:
8
(i) after the commencement of this item, in response to
9
such an application; or
10
(ii) before the commencement of this item;
11
as if that amendment had not been made.
12
15 Transitional
--sections 103 and 104 of the
Proceeds of
13
Crime Act 2002
14
Despite the amendments made by items 2 to 5, the
Proceeds of Crime
15
Act 2002
continues to apply, in relation to:
16
(a) an application made before the commencement of this item
17
for an order under section 103 of that Act; and
18
(b) an order made under section 103 of that Act:
19
(i) after the commencement of this item, in response to
20
such an application; or
21
(ii) before the commencement of this item;
22
as if those amendments had not been made.
23
Benefit
Schedule 4
Amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
47
Schedule 4--Benefit
1
Part 1--Amendments
2
Proceeds of Crime Act 2002
3
1 Section 338
4
Insert:
5
advantage
includes financial advantage.
6
Note:
See also the definition of
financial advantage
.
7
2 Section 338 (at the end of the definition of
benefit
)
8
Add:
9
Note:
See also the definition of
advantage
.
10
3 Section 338
11
Insert:
12
financial advantage
includes the avoidance, deferral or reduction
13
of a debt, loss or liability.
14
Schedule 4
Benefit
Part 2
Application provisions
48
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
Part 2--Application provisions
1
4 Application
2
(1)
Subject to subitem (2), the amendments made by this Schedule, to the
3
extent that they are relevant to a benefit derived by a person, apply in
4
relation to a benefit derived by the person before, at or after the
5
commencement of this item.
6
(2)
The amendments made by this Schedule, to the extent that they are
7
relevant to proceedings in a court, apply in relation to:
8
(a) proceedings instituted after the commencement of this item;
9
and
10
(b) proceedings that:
11
(i) were instituted before the commencement of this item;
12
and
13
(ii) are pending as at the commencement of this item.
14
Jurisdiction of courts
Schedule 5
Amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
49
Schedule 5--Jurisdiction of courts
1
Part 1--Amendments
2
Proceeds of Crime Act 2002
3
1 Section 53
4
Repeal the section.
5
2 After section 68
6
Insert:
7
68A Third exception--property located outside Australia
8
(1) Despite section 66, if property specified in a
*
forfeiture order is
9
property located outside
*
Australia:
10
(a) that property vests in equity in the Commonwealth; and
11
(b) that property only vests in the Commonwealth at law to the
12
extent permitted under the law in force in the place where
13
that property is located; and
14
(c) the
*
responsible authority has power, on behalf of the
15
Commonwealth, to do anything necessary or convenient to:
16
(i) give notice of, or otherwise protect, the
17
Commonwealth's equitable interest in that property; or
18
(ii) arrange for the enforcement of, or give effect to, the
19
forfeiture order.
20
Note:
The following is an example of action by the responsible authority
21
under subparagraph (1)(c)(ii): arranging for a request under section 32
22
of the
*
Mutual Assistance Act in relation to the enforcement of the
23
forfeiture order.
24
(2) Any action by the
*
responsible authority under
25
subparagraph (1)(c)(i) is not a dealing for the purposes of
26
subsection 69(1).
27
(3) Despite section 66 and subsection (1) of this section, if:
28
(a) property specified in a
*
forfeiture order is property located
29
outside
*
Australia; and
30
Schedule 5
Jurisdiction of courts
Part 1
Amendments
50
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(b) under the law in force in the place where that property is
1
located, that property vests in a person;
2
that property vests in that person under that law.
3
(4) Subsection (3) does not affect any equitable interest vested in the
4
Commonwealth by paragraph (1)(a).
5
3 After section 98
6
Insert:
7
98A Third exception--property located outside Australia
8
(1) Despite section 96, if property forfeited under section 92 is
9
property located outside
*
Australia:
10
(a) that property vests in equity in the Commonwealth; and
11
(b) that property only vests in the Commonwealth at law to the
12
extent permitted under the law in force in the place where
13
that property is located; and
14
(c) the
*
responsible authority has power, on behalf of the
15
Commonwealth, to do anything necessary or convenient to:
16
(i) give notice of, or otherwise protect, the
17
Commonwealth's equitable interest in that property; or
18
(ii) arrange for the enforcement of, or give effect to, the
19
declaration under section 95 that relates to the forfeiture
20
of that property.
21
Note:
The following is an example of action by the responsible authority
22
under subparagraph (1)(c)(ii): arranging for a request under section 32
23
of the
*
Mutual Assistance Act in relation to the enforcement of the
24
declaration under section 95 of this Act that relates to the forfeiture of
25
that property.
26
(2) Any action by the
*
responsible authority under
27
subparagraph (1)(c)(i) is not a dealing for the purposes of
28
subsection 99(1).
29
(3) Despite section 96 and subsection (1) of this section, if:
30
(a) property forfeited under section 92 is property located
31
outside
*
Australia; and
32
(b) under the law in force in the place where that property is
33
located, that property vests in a person;
34
that property vests in that person under that law.
35
Jurisdiction of courts
Schedule 5
Amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
51
(4) Subsection (3) does not affect any equitable interest vested in the
1
Commonwealth by paragraph (1)(a).
2
4 Subsection 314(2)
3
Omit "Subject to section 53, the", substitute "The".
4
5 At the end of section 314
5
Add:
6
(4) The jurisdiction of a court with respect to matters arising under this
7
Act is not excluded or limited merely because the proceedings
8
relate to, or may otherwise concern, property located outside
9
*
Australia.
10
Schedule 5
Jurisdiction of courts
Part 2
Application provisions
52
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
Part 2--Application provisions
1
6 Application
2
(1)
Subject to subitem (2), the amendments made by this Schedule, to the
3
extent that they are relevant to property acquired by a person, apply in
4
relation to property acquired by the person before, at or after the
5
commencement of this item.
6
(2)
The amendments made by this Schedule, to the extent that they are
7
relevant to proceedings in a court, apply in relation to:
8
(a) proceedings instituted after the commencement of this item;
9
and
10
(b) proceedings that:
11
(i) were instituted before the commencement of this item;
12
and
13
(ii) are pending as at the commencement of this item.
14
Information
Schedule 6
Amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
53
Schedule 6--Information
1
Part 1--Amendments
2
Proceeds of Crime Act 2002
3
1 Section 195 (penalty)
4
Omit "2 years or 120", substitute "5 years or 300".
5
2 Subsection 196(1) (penalty)
6
Omit "2 years or 120", substitute "5 years or 300".
7
3 Section 197A (penalty)
8
Omit "2 years or 120", substitute "5 years or 300".
9
4 At the end of section 198
10
Add:
11
; or (f) in proceedings for an offence against this Part.
12
5 Subsection 211(1) (penalty)
13
Omit "100", substitute "120".
14
6 Subsection 218(1) (penalty)
15
Omit "100", substitute "120".
16
7 Subparagraph 266A(1)(a)(ii)
17
After "by the person" (second occurring), insert "or someone else".
18
8 At the end of paragraph 266A(1)(a)
19
Add:
20
(iii) the exercise of a power (by the person or someone else),
21
or performance (by the person or someone else) of a
22
function, under Division 2 of Part 4-1; or
23
9 Subsection 266A(2) (after table item 2C)
24
Insert:
25
26
Schedule 6
Information
Part 1
Amendments
54
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
2D
Authority of the Commonwealth, or
of a State or Territory, that has a
function of investigating or
prosecuting offences against a law of
the Commonwealth, State or
Territory
Assisting in the prevention,
investigation or prosecution of:
(a) an offence against this Act that
involves non-compliance with an
obligation or requirement; or
(b) an offence against section 15G,
197A, 209, 216, 222 or 266 of
this Act; or
(c) an offence against clause 8 or 15
of Schedule 1 to this Act; or
(d) an offence against section 137.1
or 137.2 of the
Criminal Code
that relates to this Act; or
(e) an offence that involves
non-compliance with an order of
a court made under this Act
2E
*
Mutual Assistance Department
Either or both of the following
purposes:
(a) facilitating the Mutual Assistance
Department's performance of its
functions in relation to the
Extradition Act 1988
, the
International Criminal Court Act
2002
, the
International War
Crimes Tribunals Act 1995
or the
*
Mutual Assistance Act;
(b) a purpose that is ancillary or
incidental to the performance by
the Mutual Assistance
Department of any of the
functions covered by
paragraph (a)
Information
Schedule 6
Amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
55
2F
Authority of a foreign country with
functions corresponding to the
functions of the Mutual Assistance
Department that are covered by
item 2E
Either or both of the following
purposes:
(a) assisting in the prevention,
investigation or prosecution of
an offence against a law of the
country constituted by conduct
that, if it occurred in Australia,
would constitute an offence
against a law of the
Commonwealth, or of a State or
Territory, punishable on
conviction by imprisonment for
at least 3 years or for life;
(b) assisting in the identification,
location, tracing, investigation or
confiscation of
*
proceeds or
*
instruments of crime, if the
identification, location, tracing,
investigation or confiscation
could take place under this Act,
or under a
*
corresponding law of
a State or a
*
self-governing
Territory, if the proceeds or
instruments related to an offence
against a law of the
Commonwealth, a State or a
Territory
10 Subsection 266A(2) (at the end of the table)
1
Add:
2
3
4
The
*
International Criminal Court
Enabling or assisting the
International Criminal Court to
perform any of its functions
5
An
*
International War Crimes
Tribunal
Enabling or assisting the
International War Crimes Tribunal
to perform any of its functions
6
Professional disciplinary body
Enabling or assisting the body to
perform any of the body's functions
11 At the end of subsection 266A(2)
4
Add:
5
Schedule 6
Information
Part 1
Amendments
56
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
Note:
This section is not intended to alter the procedures applicable to the
1
disclosure of information to foreign countries (for example,
2
procedures under the
Mutual Assistance in Criminal Matters Act
3
1987
). If this section applies to information, this section gives
4
authorisation for the disclosure of the information in accordance with
5
those procedures.
6
12 After subsection 266A(2)
7
Insert:
8
(2A) To avoid doubt, this section does not prevent the person from
9
disclosing or using the information:
10
(a) for the purpose for which the information was obtained; or
11
(b) for purposes directly or indirectly connected with, or
12
incidental to, the purpose for which the information was
13
obtained; or
14
(c) if the person obtained the information as a result of a
15
disclosure, or a series of disclosures, under this section or
16
clause 18 of Schedule 1:
17
(i) for the purpose for which the information was obtained
18
as a result of that disclosure or any of the disclosures in
19
that series; or
20
(ii) for purposes directly or indirectly connected with, or
21
incidental to, the purpose for which the information was
22
obtained as a result of that disclosure or any of the
23
disclosures in that series.
24
13 After paragraph 266A(4)(e)
25
Insert:
26
; or (f) proceedings for an offence against Part 3-1.
27
14 After subsection 266A(6)
28
Insert:
29
(6A) Subsection (5) does not apply in proceedings for an offence against
30
Part 3-2.
31
15 Paragraph 271(2)(b)
32
Omit "or".
33
Information
Schedule 6
Amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
57
16 Paragraph 271(2)(c)
1
Repeal the paragraph.
2
17 Subsection 271(2)
3
Omit all the words after "against the natural person,", substitute:
4
except:
5
(c) proceedings under, or arising out of, section 137.1 or 137.2
6
of the
Criminal Code 1995
(false and misleading information
7
and documents) in relation to giving the information or
8
document; or
9
(d) proceedings for an offence against this Division.
10
18 Section 338
11
Insert:
12
International Criminal Court
has the same meaning as in the
13
Criminal Code
.
14
International War Crimes Tribunal
means a Tribunal (within the
15
meaning of the
International War Crimes Tribunals Act 1995
).
16
Mutual Assistance Department
means the Department
17
administered by the Minister who administers the Mutual
18
Assistance Act.
19
19 Section 338 (after paragraph (g) of the definition of
20
serious offence
)
21
Insert:
22
(ga) an offence against section 195, 196 or 197A that relates to an
23
*
examination of a person who is the subject of an
24
*
examination order under section 180, if the person
25
committing the offence:
26
(i) is covered by paragraph 180(1)(a) or (b); or
27
(ii) is or was a party to proceedings relating to the
28
*
restraining order mentioned in section 180; or
29
(gb) an offence against section 195, 196 or 197A that relates to an
30
examination of a person who is the subject of an examination
31
order under section 180A, if the person committing the
32
offence:
33
(i) is covered by paragraph 180A(1)(a); or
34
Schedule 6
Information
Part 1
Amendments
58
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(ii) is or was a party to proceedings relating to the relevant
1
application mentioned in section 180A; or
2
(gc) an offence against section 195, 196 or 197A that relates to an
3
examination of a person who is the subject of an examination
4
order under section 180B, if the person committing the
5
offence:
6
(i) is covered by paragraph 180B(1)(a); or
7
(ii) is or was a party to proceedings relating to the relevant
8
application mentioned in section 180B; or
9
(gd) an offence against section 195, 196 or 197A that relates to an
10
examination of a person who is the subject of an examination
11
order under section 180C, if the person committing the
12
offence:
13
(i) is covered by paragraph 180C(1)(a); or
14
(ii) is or was a party to proceedings relating to the
15
application mentioned in section 180C; or
16
(ge) an offence against section 195, 196 or 197A that relates to an
17
examination of a person who is the subject of an examination
18
order under section 180D, if the person committing the
19
offence:
20
(i) is covered by paragraph 180D(1)(a); or
21
(ii) is or was a party to proceedings relating to the
22
*
confiscation order mentioned in section 180D; or
23
(gf) an offence against section 195, 196 or 197A that relates to an
24
examination of a person who is the subject of an examination
25
order under section 180E, if the person committing the
26
offence:
27
(i) is covered by paragraph 180E(1)(a); or
28
(ii) is or was a party to proceedings relating to the
29
revocation mentioned in section 180E; or
30
(gg) an offence against section 195, 196 or 197A that relates to an
31
examination of a person who is the subject of an examination
32
order under section 181, if the person committing the
33
offence:
34
(i) is covered by paragraph 181(1)(a) or (b); or
35
(ii) is or was a party to proceedings relating to the relevant
36
application mentioned in section 181; or
37
Information
Schedule 6
Application provisions
Part 2
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
59
Part 2--Application provisions
1
20 Application
--section 266A of the
Proceeds of Crime Act
2
2002
3
The amendments of section 266A of the
Proceeds of Crime Act 2002
4
made by this Schedule apply in relation to information obtained before,
5
at or after the commencement of this item.
6
Schedule 7
Official Trustee
Part 1
General amendments
60
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
Schedule 7--Official Trustee
1
Part 1--General amendments
2
Division 1
--Amendments
3
COAG Reform Fund Act 2008
4
1 Subsection 5(2) (after note 5)
5
Insert:
6
Note 5A: An amount originating in the Confiscated Assets Account may be
7
transferred to the COAG Reform Fund--see the
Proceeds of Crime
8
Act 2002
.
9
2 At the end of subsection 7(1)
10
Add:
11
; and (e) the grant is not covered by section 298F of the
Proceeds of
12
Crime Act 2002
.
13
3 At the end of subsection 7(3)
14
Add:
15
Note 4:
The provision referred to in paragraph (1)(e) deals with the
16
channelling, through the COAG Reform Fund, of State/Territory
17
grants payments from the Confiscated Assets Account established by
18
the
Proceeds of Crime Act 2002
. For terms and conditions of those
19
grants, see the
Proceeds of Crime Act 2002
.
20
Proceeds of Crime Act 2002
21
4 Paragraph 9(a)
22
Omit ", which largely relate to property that is subject to restraining
23
orders".
24
5 At the end of section 69
25
Add:
26
Official Trustee
Schedule 7
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
61
Controlled property
1
(4) If property covered by a
*
forfeiture order is controlled property for
2
the purposes of Division 3 of Part 4-1, this section does not prevent
3
or limit the exercise of powers or performance of duties by the
4
*
Official Trustee under that Division.
5
6 After paragraph 70(1)(b)
6
Insert:
7
(ba) apply:
8
(i) any amounts received from that disposal; and
9
(ii) any property specified in the order that is money;
10
to payment of an
*
associated GST entity's liability (if any) to
11
pay
*
GST in connection with the disposal; and
12
7 After Division 4 of Part 2-2
13
Insert:
14
Division 4A--Controlled property
15
71A Official Trustee may take custody and control of forfeited
16
property
17
(1) The
*
Official Trustee may take custody and control of any or all of
18
the property covered by a
*
forfeiture order.
19
Note:
Part 4-1 sets out the Official Trustee's powers over the property.
20
(2) If the
*
Official Trustee decides to take custody and control of
21
property under subsection (1), the court that made the
*
forfeiture
22
order that covers the property may make either or both of the
23
following orders:
24
(a) an order determining any question relating to the exercise of
25
powers conferred on the Official Trustee under Division 3 of
26
Part 4-1, or the performance of duties imposed on the Official
27
Trustee under that Division, to the extent that those powers or
28
duties relate to the property;
29
(b) an order directing any person to do anything necessary or
30
convenient to enable the Official Trustee to take custody and
31
control of the property.
32
Schedule 7
Official Trustee
Part 1
General amendments
62
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(3) The court may only make an order under subsection (2) on the
1
application of:
2
(a) the
*
responsible authority; or
3
(b) the person who, immediately before the making of the
4
*
forfeiture order, was the owner of the property covered by
5
that order; or
6
(c) the
*
Official Trustee; or
7
(d) any other person who has the leave of the court.
8
8 Subsection 88(1)
9
Omit "Minister" (first occurring), substitute "
*
Official Trustee".
10
9 Paragraph 88(1)(d)
11
Omit "Minister", substitute "Official Trustee".
12
10 Subsection 88(2)
13
Omit "Minister" (first occurring), substitute "
*
Official Trustee".
14
11 Subsection 88(2)
15
Omit "Minister" (second occurring), substitute "Official Trustee".
16
12 Paragraph 89(1)(d)
17
Omit "Minister", substitute "
*
Official Trustee".
18
13 Section 90
19
Repeal the section, substitute:
20
90 Buying out other interests in forfeited property
21
(1) If:
22
(a) property is forfeited to the Commonwealth under this Part;
23
and
24
(b) an interest in the property is required to be transferred to a
25
person (the
relevant person
) under subsection 88(1) or 89(1),
26
or under a direction under paragraph 73(2)(c); and
27
(c) the relevant person's interest in the property, immediately
28
before the forfeiture took place, was not the only interest in
29
the property; and
30
Official Trustee
Schedule 7
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
63
(d) the relevant person gives written notice to each other person
1
who had an interest in the property immediately before the
2
forfeiture took place that:
3
(i) the relevant person intends to purchase that other
4
interest from the Commonwealth; and
5
(ii) the person served with the notice may, within 21 days
6
after receiving the notice, lodge a written objection to
7
the purchase of that other interest with the Minister and
8
the
*
Official Trustee; and
9
(e) no person served with notice under paragraph (d) in relation
10
to that other interest lodges a written objection to the
11
purchase of that other interest with the Minister and the
12
Official Trustee within the period referred to in that
13
paragraph; and
14
(f) the relevant person pays to the Commonwealth, while that
15
other interest is still vested in the Commonwealth, an amount
16
equal to the value of that other interest;
17
the Official Trustee must arrange for that other interest to be
18
transferred to the relevant person.
19
(2) If a person served with notice under paragraph (1)(d) in relation to
20
the other interest mentioned in that paragraph lodges a written
21
objection to the purchase of that other interest with the Minister
22
and the
*
Official Trustee within the period referred to in that
23
paragraph:
24
(a) the Minister; or
25
(b) a
*
senior Departmental officer authorised by the Minister for
26
the purposes of this subsection;
27
may direct the Official Trustee to transfer that other interest to the
28
person.
29
14 At the end of section 99
30
Add:
31
Controlled property
32
(4) If property forfeited under section 92 is controlled property for the
33
purposes of Division 3 of Part 4-1, this section does not prevent or
34
limit the exercise of powers or performance of duties by the
35
*
Official Trustee under that Division.
36
Schedule 7
Official Trustee
Part 1
General amendments
64
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
15 Subsection 100(1)
1
Omit "If subsection 99(1) no longer prevents", substitute "If
2
subsection 99(1) authorises".
3
16 After paragraph 100(1)(b)
4
Insert:
5
(ba) apply:
6
(i) any amounts received from that disposal; and
7
(ii) any of the forfeited property that is money;
8
to payment of an
*
associated GST entity's liability (if any) to
9
pay
*
GST in connection with the disposal; and
10
17 After Division 2 of Part 2-3
11
Insert:
12
Division 2A--Controlled property
13
101A Official Trustee may take custody and control of forfeited
14
property
15
(1) The
*
Official Trustee may take custody and control of property
16
forfeited to the Commonwealth under section 92.
17
Note:
Part 4-1 sets out the Official Trustee's powers over the property.
18
(2) If the
*
Official Trustee decides to take custody and control of
19
property under subsection (1), the court that made the
*
restraining
20
order referred to in paragraph 92(1)(b) in relation to the property
21
may make either or both of the following orders:
22
(a) an order determining any question relating to the exercise of
23
powers conferred on the Official Trustee under Division 3 of
24
Part 4-1, or the performance of duties imposed on the Official
25
Trustee under that Division, to the extent that those powers or
26
duties relate to the property;
27
(b) an order directing any person to do anything necessary or
28
convenient to enable the Official Trustee to take custody and
29
control of the property.
30
(3) The court may only make an order under subsection (2) on the
31
application of:
32
Official Trustee
Schedule 7
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
65
(a) the
*
responsible authority; or
1
(b) the person who, immediately before the property was
2
forfeited under section 92, was the owner of the property
3
covered by that order; or
4
(c) the
*
Official Trustee; or
5
(d) any other person who has the leave of the court.
6
18 Subsection 105(1)
7
Omit "Minister", substitute "
*
Official Trustee".
8
19 Section 106
9
Repeal the section, substitute:
10
106 Buying out other interests in forfeited property
11
(1) If:
12
(a) property is forfeited to the Commonwealth under section 92;
13
and
14
(b) an interest in the property is required to be transferred to a
15
person (the
relevant person
) under section 105, or under a
16
direction under subparagraph 102(d)(i); and
17
(c) the relevant person's interest in the property, immediately
18
before the forfeiture took place, was not the only interest in
19
the property; and
20
(d) the relevant person gives written notice to each other person
21
who had an interest in the property immediately before the
22
forfeiture took place that:
23
(i) the relevant person intends to purchase that other
24
interest from the Commonwealth; and
25
(ii) the person served with the notice may, within 21 days
26
after receiving the notice, lodge a written objection to
27
the purchase of that other interest with the Minister and
28
the
*
Official Trustee; and
29
(e) no person served with the notice under paragraph (d) in
30
relation to that other interest lodges a written objection to the
31
purchase of that other interest with the Minister and the
32
Official Trustee within the period referred to in that
33
paragraph; and
34
Schedule 7
Official Trustee
Part 1
General amendments
66
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(f) the relevant person pays to the Commonwealth, while that
1
other interest is still vested in the Commonwealth, an amount
2
equal to the value of that other interest;
3
the Official Trustee must arrange for that other interest to be
4
transferred to the relevant person.
5
(2) If a person served with notice under paragraph (1)(d) in relation to
6
the other interest mentioned in that paragraph lodges a written
7
objection to the purchase of that other interest with the Minister
8
and the
*
Official Trustee within the period referred to in that
9
paragraph:
10
(a) the Minister; or
11
(b) a
*
senior Departmental officer authorised by the Minister for
12
the purposes of this subsection;
13
may direct the Official Trustee to transfer that other interest to the
14
person.
15
20 Subsection 114(1)
16
Omit "Minister" (first occurring), substitute "
*
Official Trustee".
17
21 Paragraph 114(1)(d)
18
Omit "Minister", substitute "Official Trustee".
19
22 Subsection 114(2)
20
Omit "Minister" (first occurring), substitute "
*
Official Trustee".
21
23 Subsection 114(2)
22
Omit "Minister" (second occurring), substitute "Official Trustee".
23
24 After section 267
24
Insert:
25
267AA Additional property to which the Official Trustee's powers
26
under Division 2 apply
27
(1) The powers conferred on the
*
Official Trustee under Division 2
28
may be exercised in relation to:
29
(a) property that is the subject of a
*
forfeiture order; or
30
(b) property forfeited under section 92; or
31
Official Trustee
Schedule 7
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
67
(c) property that is subject to a direction under section 282 or
1
282A.
2
(2) Without limiting the definition of
controlled property
in
3
section 267, for the purposes of Division 2, that property is
4
controlled property
.
5
267AB Additional property to which the Official Trustee's powers
6
under Division 3 apply
7
(1) The powers conferred on the
*
Official Trustee under Division 3
8
may be exercised, and the duties imposed on the Official Trustee
9
under Division 3 are to be performed, in relation to:
10
(a) property that is the subject of a
*
forfeiture order; or
11
(b) property forfeited under section 92; or
12
(c) property that is subject to a direction under section 282 or
13
282A.
14
(2) If property is the subject of a
*
forfeiture order, the powers
15
conferred on the
*
Official Trustee under Division 3 may be
16
exercised, and the duties imposed on the Official Trustee under
17
Division 3 are to be performed, in relation to the property:
18
(a) during the period:
19
(i) beginning when the forfeiture order was made; and
20
(ii) ending at the later of the times set out in
21
subsection 69(1); or
22
(b) during the period mentioned in section 86.
23
(3) If property is forfeited under section 92, the powers conferred on
24
the
*
Official Trustee under Division 3 may be exercised, and the
25
duties imposed on the Official Trustee under Division 3 are to be
26
performed, in relation to the property during the period:
27
(a) beginning when the property was forfeited; and
28
(b) ending at the end of the period mentioned in
29
subsection 99(1).
30
(4) If property is subject to a direction under section 282 or 282A, the
31
powers conferred on the
*
Official Trustee under Division 3 may be
32
exercised, and the duties imposed on the Official Trustee under
33
Division 3 are to be performed, in relation to the property during
34
the appeal period under section 285.
35
Schedule 7
Official Trustee
Part 1
General amendments
68
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(5) Without limiting the definition of
controlled property
in
1
section 267, for the purposes of Division 3 and sections 289 and
2
290, property covered by subsection (1), (2), (3), or (4) of this
3
section is
controlled property
.
4
25 Subsection 270(1)
5
After "require the person", insert "to do any or all of the following
6
things".
7
26 Paragraphs 270(1)(a) and (b)
8
Repeal the paragraphs, substitute:
9
(a) to:
10
(i) give the Official Trustee such information as the
11
Official Trustee requires for the purposes of the exercise
12
of the Official Trustee's powers or the performance of
13
the Official Trustee's duties under this Part; and
14
(ii) do so within the period, and in the manner, specified in
15
the notice;
16
(b) to:
17
(i) attend before the Official Trustee, or a person authorised
18
in writing by the Official Trustee for the purposes of
19
this paragraph, at the time and place specified in the
20
notice; and
21
(ii) give evidence relating to any matters connected with the
22
exercise of the Official Trustee's powers or the
23
performance of the Official Trustee's duties under this
24
Part;
25
(c) to:
26
(i) give evidence by video link to the Official Trustee, or a
27
person authorised in writing by the Official Trustee for
28
the purposes of this paragraph, if the evidence relates to
29
any matters connected with the exercise of the Official
30
Trustee's powers or the performance of the Official
31
Trustee's duties under this Part; and
32
(ii) commence doing so at the time specified in the notice;
33
(d) to:
34
(i) give evidence by telephone to the Official Trustee, or a
35
person authorised in writing by the Official Trustee for
36
the purposes of this paragraph, if the evidence relates to
37
Official Trustee
Schedule 7
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
69
any matters connected with the exercise of the Official
1
Trustee's powers or the performance of the Official
2
Trustee's duties under this Part; and
3
(ii) commence doing so at the time specified in the notice;
4
(e) to:
5
(i) produce all
*
books in the possession of the person
6
notified relating to any matters connected with the
7
exercise of the Official Trustee's powers or the
8
performance of the Official Trustee's duties under this
9
Part; and
10
(ii) do so within the period, and in the manner, specified in
11
the notice.
12
27 Subsection 270(2)
13
Repeal the subsection, substitute:
14
(2) In the case of a requirement under paragraph (1)(b), (c) or (d), the
15
*
Official Trustee or a person authorised under the paragraph
16
concerned:
17
(a) may require the evidence to be given on oath or affirmation,
18
and either orally or in writing; and
19
(b) for that purpose, may administer an oath or affirmation.
20
(3) An oath or affirmation to be sworn or made by a person who is to
21
give evidence by video link may be administered:
22
(a) by means of video link, in as nearly as practicable the same
23
way as if the person were to give evidence in the presence of
24
the
*
Official Trustee or the person authorised under
25
paragraph (1)(c), as the case may be; or
26
(b) as follows:
27
(i) on behalf of the Official Trustee or the person
28
authorised under paragraph (1)(c), as the case may be;
29
(ii) by a person authorised by the Official Trustee or the
30
person authorised under paragraph (1)(c), as the case
31
may be;
32
(iii) at the place where the person is present for the purposes
33
of giving evidence.
34
(4) An oath or affirmation to be sworn or made by a person who is to
35
give evidence by telephone may be administered:
36
Schedule 7
Official Trustee
Part 1
General amendments
70
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(a) by telephone, in as nearly as practicable the same way as if
1
the person were to give evidence in the presence of the
2
*
Official Trustee or the person authorised under
3
paragraph (1)(d), as the case may be; or
4
(b) as follows:
5
(i) on behalf of the Official Trustee or the person
6
authorised under paragraph (1)(d), as the case may be;
7
(ii) by a person authorised by the Official Trustee or the
8
person authorised under paragraph (1)(d), as the case
9
may be;
10
(iii) at the place where the person is present for the purposes
11
of giving evidence.
12
28 Section 275
13
Before "A person", insert "(1)".
14
29 Subparagraph 275(b)(ii)
15
Omit "be; or", substitute "be.".
16
30 Subparagraph 275(b)(iii)
17
Repeal the subparagraph.
18
31 At the end of section 275
19
Add:
20
(2) A person commits an offence if:
21
(a) the person is required by a notice under paragraph 270(1)(c)
22
to give evidence by video link; and
23
(b) the person refuses or fails:
24
(i) to be sworn or to make an affirmation; or
25
(ii) to answer a question that the person is required to
26
answer by the
*
Official Trustee or a person authorised
27
under that paragraph, as the case may be.
28
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
29
(3) A person commits an offence if:
30
(a) the person is required by a notice under paragraph 270(1)(d)
31
to give evidence by telephone; and
32
(b) the person refuses or fails:
33
Official Trustee
Schedule 7
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
71
(i) to be sworn or to make an affirmation; or
1
(ii) to answer a question that the person is required to
2
answer by the
*
Official Trustee or a person authorised
3
under that paragraph, as the case may be.
4
Penalty for contravention of this subsection: Imprisonment for 6
5
months or 30 penalty units, or both.
6
32 At the end of Division 2 of Part 4-1
7
Add:
8
275A Failure to produce a book
9
A person commits an offence if:
10
(a) the person is required by a notice under paragraph 270(1)(e)
11
to produce a
*
book; and
12
(b) the person refuses or fails to comply with the notice.
13
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
14
33 Paragraph 278(2)(a)
15
Before "agreement", insert "written".
16
34 Section 279 (at the end of the heading)
17
Add "
etc.
".
18
35 Paragraphs 279(1)(a) and (b)
19
Repeal the paragraphs, substitute:
20
(a) if the
*
controlled property is covered by a
*
forfeiture order:
21
(i) the person who was the owner of the property
22
immediately before the forfeiture order was made; and
23
(ii) any other person whom the
*
Official Trustee has reason
24
to believe may have had an
*
interest in the property
25
immediately before the forfeiture order was made; or
26
(b) if the controlled property is forfeited under section 92:
27
(i) the person who was the owner of the property
28
immediately before the forfeiture; and
29
(ii) any other person whom the Official Trustee has reason
30
to believe may have had an interest in the property
31
immediately before the forfeiture; or
32
Schedule 7
Official Trustee
Part 1
General amendments
72
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(c) in any other case:
1
(i) the owner of the controlled property; and
2
(ii) any other person whom the Official Trustee has reason
3
to believe may have an interest in the controlled
4
property.
5
36 At the end of section 279
6
Add:
7
Pre-disposal agreement
8
(5) Subsection (1) does not require written notice of the proposed
9
disposal of the
*
controlled property to be given to a person who has
10
agreed in writing to the disposal of the controlled property.
11
(6) If:
12
(a) a person has agreed to the disposal of the
*
controlled
13
property; and
14
(b) the
*
Official Trustee disposes of the property;
15
the Official Trustee must:
16
(c) give the person written notice of the disposal of the property;
17
and
18
(d) do so as soon as practicable after the disposal of the property.
19
37 Section 281
20
Before "Amounts", insert "(1)".
21
38 Paragraphs 281(a) and (b)
22
Repeal the paragraphs, substitute:
23
(a) if the property was covered by a
*
restraining order--are
24
taken to be covered by the restraining order; or
25
(b) if the property was covered by a
*
forfeiture order--are taken
26
to be covered by the forfeiture order; or
27
(c) if the property was forfeited under section 92--are taken to
28
be forfeited under that section; or
29
(d) if the property was subject to a charge under section 142--
30
are taken to be subject to the charge; or
31
(e) if the property was subject to a charge under section 169--
32
are taken to be subject to the charge; or
33
Official Trustee
Schedule 7
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
73
(f) if the property was subject to a charge under
1
section 179SA--are taken to be subject to the charge.
2
39 At the end of section 281
3
Add:
4
(2) If the
*
controlled property:
5
(a) was covered by a
*
restraining order or
*
forfeiture order; and
6
(b) was so covered on the basis that the property was
*
proceeds
7
of an offence, or an
*
instrument of an offence, to which the
8
restraining order or forfeiture order relates;
9
amounts realised from any sale of the property under section 278
10
continue to be proceeds of that offence or an instrument of that
11
offence.
12
40 At the end of Division 3 of Part 4-1
13
Add:
14
281A Official Trustee does not acquire any additional proprietary
15
interests in controlled property
16
To avoid doubt, the
*
Official Trustee does not acquire any
17
additional proprietary interests in
*
controlled property when:
18
(a) exercising powers conferred by this Division; or
19
(b) performing duties imposed by this Division.
20
41 At the end of section 285
21
Add:
22
Controlled property
23
(5) If the property to which a direction under section 282 or 282A
24
relates is controlled property for the purposes of Division 3 of
25
Part 4-1, this section does not prevent or limit the exercise of
26
powers or performance of duties by the
*
Official Trustee under that
27
Division.
28
42 Paragraph 288(1)(a)
29
Omit "or under", substitute ", under".
30
Schedule 7
Official Trustee
Part 1
General amendments
74
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
43 Paragraph 288(1)(a)
1
After "
*
Mutual Assistance Act", insert "or under section 208DA or
2
Division 3 of Part XIII of the
Customs Act 1901
".
3
44 At the end of subsection 289(1)
4
Add:
5
Note:
See also section 267AB, which extends the meaning of
controlled
6
property
for the purposes of this section.
7
45 Subsection 289(2)
8
Omit "the
*
restraining order relating to the
*
controlled property ceases
9
to be in force and the property is returned to its owner,", substitute "the
10
*
controlled property is returned to its owner as a result of a restraining
11
order ceasing to be in force or as a result of the controlled property
12
ceasing to be subject to forfeiture under this Act,".
13
46 At the end of subsection 290(1)
14
Add:
15
Note:
See also section 267AB, which extends the meaning of
controlled
16
property
for the purposes of this section.
17
47 After paragraph 296(1)(a)
18
Insert:
19
(aa) input tax credits:
20
(i) to which the
*
Official Trustee is entitled; and
21
(ii) that are in connection with disposals under section 70 or
22
100; and
23
48 Paragraph 296(3)(b)
24
Omit "90(f)", substitute "90(1)(f)".
25
49 Paragraph 296(3)(d)
26
Omit "106(f)", substitute "106(1)(f)".
27
50 After paragraph 297(b)
28
Insert:
29
Official Trustee
Schedule 7
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
75
(ba) transferring amounts to the
*
COAG Reform Fund in
1
accordance with section 298E for the purposes of making
2
grants to the States and Territories under section 298A;
3
51 Paragraph 297(e)
4
Omit "but that the Official Trustee has been unable to recover",
5
substitute "or (b)".
6
52 After paragraph 297(e)
7
Insert:
8
(ea) paying the Official Trustee amounts that were payable to the
9
Official Trustee under regulations made for the purposes of
10
subsection 9B(1) of the
Crimes Act 1914
;
11
53 After paragraph 297(f)
12
Insert:
13
(faa) making any payments in discharge of an
*
associated GST
14
entity's liability to pay
*
GST in connection with a disposal
15
under section 70 or 100;
16
54 Before paragraph 296(1)(h)
17
Insert:
18
(gb) money (other than a penalty) that is paid by a person to the
19
Commonwealth (directly or indirectly) under, or in
20
connection with, a
*
foreign deferred prosecution agreement,
21
and that represents any or all of the following:
22
(i) the whole or a part of
*
benefits the person derived from
23
alleged
*
unlawful activity;
24
(ii) the whole or a part of property that is wholly or partly
25
derived or realised by the person, directly or indirectly,
26
from alleged unlawful activity;
27
(iii) the whole or a part of property that is used in, or in
28
connection with, the commission of alleged unlawful
29
activity;
30
(iv) the whole or a part of property that is intended to be
31
used in, or in connection with, the commission of
32
alleged unlawful activity; and
33
Schedule 7
Official Trustee
Part 1
General amendments
76
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
55 At the end of Part 4-3
1
Add:
2
Division 4--Grants to the States and Territories for crime
3
prevention etc.
4
298A Grants to the States and Territories for crime prevention etc.
5
(1) The Minister may, on behalf of the Commonwealth, make a grant
6
of financial assistance to a State or Territory for one or more of the
7
following purposes:
8
(a) crime prevention measures;
9
(b) law enforcement measures;
10
(c) measures relating to treatment of drug addiction;
11
(d) diversionary measures relating to illegal use of drugs.
12
(2) A grant under subsection (1) may be made by way of the
13
reimbursement, or partial reimbursement, of costs or expenses.
14
(3) Subsection (2) does not limit subsection (1).
15
298B Terms and conditions of grants
16
Scope
17
(1) This section applies to a grant of financial assistance made under
18
section 298A.
19
Terms and conditions
20
(2) The terms and conditions on which that financial assistance is
21
granted must be set out in a written agreement between the
22
Commonwealth and the grant recipient.
23
(3) The grant recipient must comply with the terms and conditions.
24
(4) Without limiting subsection (2), the terms and conditions must
25
provide for the circumstances in which the grant recipient must
26
repay amounts to the Commonwealth.
27
Note:
An amount repayable to the Commonwealth would be a debt due to
28
the Commonwealth.
29
Official Trustee
Schedule 7
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
77
(5) An agreement under subsection (2) is to be entered into by the
1
Minister on behalf of the Commonwealth.
2
298C Minister has powers etc. of the Commonwealth
3
(1) The Minister, on behalf of the Commonwealth, has all the rights,
4
responsibilities, duties and powers of the Commonwealth in
5
relation to the Commonwealth's capacity as the grantor of a grant
6
made under section 298A.
7
(2) Without limiting subsection (1):
8
(a) a section 298A grant is to be paid by the Minister on behalf
9
of the Commonwealth; and
10
(b) an amount payable to the Commonwealth by way of the
11
repayment of the whole or a part of a section 298A grant is to
12
be paid to the Minister on behalf of the Commonwealth; and
13
(c) the Minister may institute an action or proceeding on behalf
14
of the Commonwealth in relation to a matter that concerns a
15
section 298A grant.
16
298D Conferral of powers on the Minister
17
The Minister may exercise a power conferred on the Minister by an
18
agreement under section 298B.
19
298E Channelling State/Territory grants through the COAG
20
Reform Fund
21
(1) If the Minister decides that a grant of financial assistance should be
22
made to a State or Territory under section 298A, the Minister must,
23
by writing, direct that, as soon as practicable, a specified amount
24
(which must equal the amount of the grant) is to be:
25
(a) debited from the
*
Confiscated Assets Account; and
26
(b) credited to the
*
COAG Reform Fund.
27
(2) The direction must be expressed to be given in order to enable the
28
amount to be debited from the
*
COAG Reform Fund for the
29
purpose of making the grant.
30
(3) Two or more directions under subsection (1) may be set out in the
31
same document.
32
Schedule 7
Official Trustee
Part 1
General amendments
78
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
(4) A direction under subsection (1) is not a legislative instrument.
1
(5) The Minister must give a copy of a direction under subsection (1)
2
to the Treasurer.
3
298F Debits from the COAG Reform Fund
4
If an amount has been credited under paragraph 298E(1)(b) to the
5
*
COAG Reform Fund for a purpose in relation to a grant of
6
financial assistance to a State or Territory, the Treasurer must:
7
(a) ensure that the COAG Reform Fund is debited for the
8
purposes of making the grant; and
9
(b) do so as soon as practicable after the amount has been
10
credited.
11
56 Section 338
12
Insert:
13
associated GST entity
means an entity (within the meaning of the
14
A New Tax System (Goods and Services Tax) Act 1999
) that has
15
entered into an arrangement with the
*
Official Trustee under
16
section 153-50 of that Act.
17
COAG Reform Fund
means the COAG Reform Fund established
18
by section 5 of the
COAG Reform Fund Act 2008
.
19
57 Section 338 (note to the definition of
controlled property
)
20
Omit "Note", substitute "Note 1".
21
58 Section 338 (at the end of the definition of
controlled
22
property
)
23
Add:
24
Note 2:
Section 267AA alters the meaning of this term for the purposes of
25
Division 2 of Part 4-1.
26
Note 3:
Section 267AB alters the meaning of this term for the purposes of
27
Division 3 of Part 4-1 and sections 289 and 290.
28
59 Section 338
29
Insert:
30
Official Trustee
Schedule 7
General amendments
Part 1
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
79
entitled
, in relation to
an
*
input tax credit, includes notionally
1
entitled to the input tax credit.
2
foreign deferred prosecution agreement
means an agreement that:
3
(a) is between a person and a competent authority of a foreign
4
country; and
5
(b) provides for the indefinite deferral of the prosecution of the
6
person for an offence against a law of the foreign country, so
7
long as the conditions set out in the agreement are met.
8
GST
has the same meaning as in the
A New Tax System (Goods
9
and Services Tax) Act 1999
.
10
input tax credit
has the same meaning as in the
A New Tax System
11
(Goods and Services Tax) Act 1999
).
12
liability to pay GST
includes notional liability to pay GST.
13
Division 2
--Application of amendments
14
60 Application
--sections 270 and 275 of the
Proceeds of
15
Crime Act 2002
16
The amendments of sections 270 and 275 of the
Proceeds of Crime Act
17
2002
made by this Part apply in relation to a notice given under
18
section 270 of that Act after the commencement of this item.
19
61 Application
--section 278 of the
Proceeds of Crime Act
20
2002
21
The amendment of section 278 of the
Proceeds of Crime Act 2002
made
22
by this Part applies in relation to an agreement made or given by a
23
person after the commencement of this item.
24
62 Application
--section 279 of the
Proceeds of Crime Act
25
2002
26
(1)
The amendment of subsection 279(1) of the
Proceeds of Crime Act
27
2002
made by this Part applies in relation to a notice given after the
28
commencement of this item.
29
(2)
Subsections 279(5) and (6) of the
Proceeds of Crime Act 2002
(as
30
amended by this Part) apply in relation to an agreement made or given
31
by a person after the commencement of this item.
32
Schedule 7
Official Trustee
Part 1
General amendments
80
Crimes Legislation Amendment (Economic Disruption) Bill 2020
No. , 2020
63 Application
--section 281 of the
Proceeds of Crime Act
1
2002
2
The amendments of section 281 of the
Proceeds of Crime Act 2002
3
made by this Part apply in relation to a sale that occurs after the
4
commencement of this item.
5
64 Application
--paragraph 296(1)(aa) of the
Proceeds of
6
Crime Act 2002
7
Paragraph 296(1)(aa) of the
Proceeds of Crime Act 2002
(as amended
8
by this Part) applies in relation to input tax credits to which the Official
9
Trustee becomes entitled after the commencement of this item.
10
65 Application
--paragraph 297(e) of the
Proceeds of Crime
11
Act 2002
12
(1)
The amendment of paragraph 297(e) of the
Proceeds of Crime Act 2002
13
made by this Part, so far as it concerns amounts payable to the Official
14
Trustee under regulations made for the purposes of paragraph 288(1)(a)
15
of that Act, applies in relation to costs, charges and expenses incurred
16
after the commencement of this item.
17
(2)
The amendment of paragraph 297(e) of the
Proceeds of Crime Act 2002
18
made by this Part, so far as it concerns amounts payable to the Official
19
Trustee under regulations made for the purposes of paragraph 288(1)(b)
20
of that Act, applies in relation to remuneration that becomes payable
21
after the commencement of this item.
22
66 Application
--paragraph 297(ea) of the
Proceeds of Crime
23
Act 2002
24
(1)
Paragraph 297(ea) of the
Proceeds of Crime Act 2002
(as amended by
25
this Part), so far as it concerns amounts payable to the Official Trustee
26
under regulations made for the purposes of paragraph 9B(1)(a) of the
27
Crimes Act 1914
, applies in relation to costs, charges and expenses
28
incurred after the commencement of this item.
29
(2)
Paragraph 297(ea) of the
Proceeds of Crime Act 2002
(as amended by
30
this Part), so far as it concerns amounts payable to the Official Trustee
31
under regulations made for the purposes of paragraph 9B(1)(b) of the
32
Crimes Act 1914
, applies in relation to remuneration that becomes
33
payable after the commencement of this item.
34
Official Trustee
Schedule 7
Amendments contingent on the commencement of the Crimes Legislation Amendment
(Combatting Corporate Crime) Act 2020
Part 2
No. , 2020
Crimes Legislation Amendment (Economic Disruption) Bill 2020
81
Part 2--Amendments contingent on the
1
commencement of the Crimes Legislation
2
Amendment (Combatting Corporate Crime)
3
Act 2020
4
Proceeds of Crime Act 2002
5
67 After paragraph 296(1)(f)
6
Insert:
7
(fa) money (other than a penalty) that is paid by a person to the
8
Commonwealth (directly or indirectly) under a
9
*
Commonwealth deferred prosecution agreement, and that
10
represents any or all of the following:
11
(i) the whole or a part of
*
benefits the person derived from
12
alleged
*
unlawful activity;
13
(ii) the whole or a part of property that is wholly or partly
14
derived or realised by the person, directly or indirectly,
15
from alleged unlawful activity;
16
(iii) the whole or a part of property that is used in, or in
17
connection with, the commission of alleged unlawful
18
activity;
19
(iv) the whole or a part of property that is intended to be
20
used in, or in connection with, the commission of
21
alleged unlawful activity; and
22
68 Section 338
23
Insert:
24
Commonwealth deferred prosecution agreement
means a deferred
25
prosecution agreement (within the meaning of the
Director of
26
Public Prosecutions Act 1983
).
27
[Index] [Search] [Download] [Related Items] [Help]