Examination orders relating to applications under section 104A
181B Examination orders relating to applications under section 104A
If an application for an order under section 103 (which deals with buying back forfeited property) is made under section 104A in relation to property, the court to which the application is made may make an order (an examination order) for the *examination of any person including:
the person who made the application; or
a person who is a *suspect in relation to the *restraining order mentioned in section 103; or
the spouse or *de facto partner of a person referred to in paragraph (a) or (b);
about the *affairs of a person referred to in paragraph (a), (b) or (c).
The *examination order ceases to have effect when:
the application is withdrawn; or
the court makes a decision on the application.
7 At the end of subsection 187(4)
Add:
; or (c) if the examination relates to an application for an order under section 57 and the person is no longer a person whose affairs can, under section 181A, be subject to the examination; or
if the examination relates to an application for an order under section 103 and the person is no longer a person whose affairs can, under section 181B, be subject to the examination.
8 Paragraph 187(5)(b)
Omit “or 181”, substitute “, 181, 181A or 181B”.
9 After paragraph 202(5)(eb)
Insert:
a document relevant to determining whether, in a case where a person has made an application under section 57A for an order under section 57 in relation to an *interest in property:
the amount paid to the Commonwealth under paragraph 89(1)(c) would not be property that is covered by subsection 57(6); and
if the whole or a part of the amount paid to the Commonwealth under paragraph 89(1)(c) would be borrowed by the person under a loan—the person’s financial circumstances are such that the person will be able to repay the loan, meet the person’s eligible living expenses and meet any eligible debts of the person, using property that is not covered by subsection 57(6); and
a document relevant to determining whether, in a case where a person has made an application under section 104A for an order under section 103 in relation to an interest in property:
the amount paid to the Commonwealth under paragraph 105(1)(c) would not be property that is covered by subsection 103(6); and
if the whole or a part of the amount paid to the Commonwealth under paragraph 105(1)(c) would be borrowed by the person under a loan—the person’s financial circumstances are such that the person will be able to repay the loan, meet the person’s eligible living expenses and meet any eligible debts of the person, using property that is not covered by subsection 103(6); and
10 Paragraph 202(5)(f)
Omit “or (eb)”, substitute “, (eb), (ec) or (ed)”.
11 At the end of section 202
Add:
For the purposes of this section, it is immaterial whether the loan mentioned in subparagraph (5)(ec)(ii) was made under an arrangement entered into before or after the making of the application mentioned in paragraph (5)(ec).
For the purposes of this section, it is immaterial whether the loan mentioned in subparagraph (5)(ed)(ii) was made under an arrangement entered into before or after the making of the application mentioned in paragraph (5)(ed).
For the purposes of this section, loan includes anything that may reasonably be regarded as equivalent to a loan, and borrow has a corresponding meaning.
For the purposes of this section, each of the following are eligible living expenses of a person:
the person’s reasonable living expenses;
the reasonable living expenses of any of the *dependants of the person;
the reasonable business expenses of the person.
For the purposes of this section, an eligible debt of a person is a debt incurred in good faith by the person.
12 Section 338 (definition of examination order)
Omit “or 181”, substitute “, 181, 181A or 181B”.
13 Section 338 (before paragraph (h) of the definition of serious offence)
Insert:
an offence against section 195, 196 or 197A that relates to an *examination of a person who is the subject of an *examination order under section 181A, if the person committing the offence:
is covered by paragraph 181A(1)(a), (b) or (c); or
is or was a party to proceedings relating to the application mentioned in section 181A; or
an offence against section 195, 196 or 197A that relates to an examination of a person who is the subject of an examination order under section 181B, if the person committing the offence:
is covered by paragraph 181B(1)(a) or (b); or
is or was a party to proceedings relating to the application mentioned in section 181B; or
Part 2—Transitional provisions
14 Transitional—section 57 of the Proceeds of Crime Act 2002
Despite the amendment made by item 1, the Proceeds of Crime Act 2002 continues to apply, in relation to:
an application made before the commencement of this item for an order under section 57 of that Act; and
an order made under section 57 of that Act:
after the commencement of this item, in response to such an application; or
before the commencement of this item;
as if that amendment had not been made.
15 Transitional—sections 103 and 104 of the Proceeds of Crime Act 2002
Despite the amendments made by items 2 to 5, the Proceeds of Crime Act 2002 continues to apply, in relation to:
an application made before the commencement of this item for an order under section 103 of that Act; and
an order made under section 103 of that Act:
after the commencement of this item, in response to such an application; or
before the commencement of this item;
as if those amendments had not been made.
Schedule 4—Benefit
Part 1—Amendments
Proceeds of Crime Act 2002
1 Section 338
Insert:
advantage includes financial advantage.
See also the definition of financial advantage.
2 Section 338 (at the end of the definition of benefit)
Add:
See also the definition of advantage.
3 Section 338
Insert:
financial advantage includes the avoidance, deferral or reduction of a debt, loss or liability.
Part 2—Application provisions
4 Application
Subject to subitem (2), the amendments made by this Schedule, to the extent that they are relevant to a benefit derived by a person, apply in relation to a benefit derived by the person before, at or after the commencement of this item.
The amendments made by this Schedule, to the extent that they are relevant to proceedings in a court, apply in relation to:
proceedings instituted after the commencement of this item; and
proceedings that:
were instituted before the commencement of this item; and
are pending as at the commencement of this item.
Schedule 5—Jurisdiction of courts
Part 1—Amendments
Proceeds of Crime Act 2002
1 Section 53
Repeal the section.
2 After section 68
Insert:
This Act’s bill:Explanatory memorandumSecond reading speech
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