Third exception—property located outside Australia
98A Third exception—property located outside Australia
Despite section 96, if property forfeited under section 92 is property located outside *Australia:
that property vests in equity in the Commonwealth; and
that property only vests in the Commonwealth at law to the extent permitted under the law in force in the place where that property is located; and
the *responsible authority has power, on behalf of the Commonwealth, to do anything necessary or convenient to:
give notice of, or otherwise protect, the Commonwealth’s equitable interest in that property; or
arrange for the enforcement of, or give effect to, the declaration under section 95 that relates to the forfeiture of that property.
The following is an example of action by the responsible authority under subparagraph (1)(c)(ii): arranging for a request under section 32 of the *Mutual Assistance Act in relation to the enforcement of the declaration under section 95 of this Act that relates to the forfeiture of that property.
Any action by the *responsible authority under subparagraph (1)(c)(i) is not a dealing for the purposes of subsection 99(1).
Despite section 96 and subsection (1) of this section, if:
property forfeited under section 92 is property located outside *Australia; and
under the law in force in the place where that property is located, that property vests in a person;
that property vests in that person under that law.
Subsection (3) does not affect any equitable interest vested in the Commonwealth by paragraph (1)(a).
4 Subsection 314(2)
Omit “Subject to section 53, the”, substitute “The”.
5 At the end of section 314
Add:
The jurisdiction of a court with respect to matters arising under this Act is not excluded or limited merely because the proceedings relate to, or may otherwise concern, property located outside *Australia.
Part 2—Application provisions
6 Application
Subject to subitem (2), the amendments made by this Schedule, to the extent that they are relevant to property acquired by a person, apply in relation to property acquired 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 6—Information
Part 1—Amendments
Proceeds of Crime Act 2002
1 Section 195 (penalty)
Omit “2 years or 120”, substitute “5 years or 300”.
2 Subsection 196(1) (penalty)
Omit “2 years or 120”, substitute “5 years or 300”.
3 Section 197A (penalty)
Omit “2 years or 120”, substitute “5 years or 300”.
4 At the end of section 198
Add:
; or (f) in proceedings for an offence against this Part.
5 Subsection 211(1) (penalty)
Omit “100”, substitute “120”.
6 Subsection 218(1) (penalty)
Omit “100”, substitute “120”.
7 Subparagraph 266A(1)(a)(ii)
After “by the person” (second occurring), insert “or someone else”.
8 At the end of paragraph 266A(1)(a)
Add:
the exercise of a power (by the person or someone else), or performance (by the person or someone else) of a function, under Division 2 of Part 4‑1; or
9 Subsection 266A(2) (after table item 2C)
Insert:
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) |
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)
Add:
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)
Add:
This section is not intended to alter the procedures applicable to the disclosure of information to foreign countries (for example, procedures under the Mutual Assistance in Criminal Matters Act 1987). If this section applies to information, this section gives authorisation for the disclosure of the information in accordance with those procedures.
12 After subsection 266A(2)
Insert:
To avoid doubt, this section does not prevent the person from disclosing or using the information:
for the purpose for which the information was obtained; or
for purposes directly or indirectly connected with, or incidental to, the purpose for which the information was obtained; or
if the person obtained the information as a result of a disclosure, or a series of disclosures, under this section or clause 18 of Schedule 1:
for the purpose for which the information was obtained as a result of that disclosure or any of the disclosures in that series; or
for purposes directly or indirectly connected with, or incidental to, the purpose for which the information was obtained as a result of that disclosure or any of the disclosures in that series.
13 After paragraph 266A(4)(e)
Insert:
; or (f) proceedings for an offence against Part 3‑1.
14 After subsection 266A(6)
Insert:
Subsection (5) does not apply in proceedings for an offence against Part 3‑2.
15 Paragraph 271(2)(b)
Omit “or”.
16 Paragraph 271(2)(c)
Repeal the paragraph.
17 Subsection 271(2)
Omit all the words after “against the natural person,”, substitute:
except:
proceedings under, or arising out of, section 137.1 or 137.2 of the Criminal Code 1995 (false and misleading information and documents) in relation to giving the information or document; or
proceedings for an offence against this Division.
18 Section 338
Insert:
International Criminal Court has the same meaning as in the Criminal Code.
International War Crimes Tribunal means a Tribunal (within the meaning of the International War Crimes Tribunals Act 1995).
Mutual Assistance Department means the Department administered by the Minister who administers the Mutual Assistance Act.
19 Section 338 (after paragraph (g) 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 180, if the person committing the offence:
is covered by paragraph 180(1)(a) or (b); or
is or was a party to proceedings relating to the *restraining order mentioned in section 180; 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 180A, if the person committing the offence:
is covered by paragraph 180A(1)(a); or
is or was a party to proceedings relating to the relevant application mentioned in section 180A; 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 180B, if the person committing the offence:
is covered by paragraph 180B(1)(a); or
is or was a party to proceedings relating to the relevant application mentioned in section 180B; 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 180C, if the person committing the offence:
is covered by paragraph 180C(1)(a); or
is or was a party to proceedings relating to the application mentioned in section 180C; 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 180D, if the person committing the offence:
is covered by paragraph 180D(1)(a); or
is or was a party to proceedings relating to the *confiscation order mentioned in section 180D; 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 180E, if the person committing the offence:
is covered by paragraph 180E(1)(a); or
is or was a party to proceedings relating to the revocation mentioned in section 180E; 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 181, if the person committing the offence:
is covered by paragraph 181(1)(a) or (b); or
is or was a party to proceedings relating to the relevant application mentioned in section 181; or
Part 2—Application provisions
20 Application—section 266A of the Proceeds of Crime Act 2002
The amendments of section 266A of the Proceeds of Crime Act 2002 made by this Schedule apply in relation to information obtained before, at or after the commencement of this item.
Schedule 7—Official Trustee
Part 1—General amendments
Division 1—Amendments
COAG Reform Fund Act 2008
1 Subsection 5(2) (after note 5)
Insert:
Note 5A: An amount originating in the Confiscated Assets Account may be transferred to the COAG Reform Fund—see the Proceeds of Crime Act 2002.
2 At the end of subsection 7(1)
Add:
; and (e) the grant is not covered by section 298F of the Proceeds of Crime Act 2002.
3 At the end of subsection 7(3)
Add:
The provision referred to in paragraph (1)(e) deals with the channelling, through the COAG Reform Fund, of State/Territory grants payments from the Confiscated Assets Account established by the Proceeds of Crime Act 2002. For terms and conditions of those grants, see the Proceeds of Crime Act 2002.
Proceeds of Crime Act 2002
4 Paragraph 9(a)
Omit “, which largely relate to property that is subject to restraining orders”.
5 At the end of section 69
Add:
Controlled property
If property covered by a *forfeiture order is controlled property for the purposes of Division 3 of Part 4‑1, this section does not prevent or limit the exercise of powers or performance of duties by the *Official Trustee under that Division.
6 After paragraph 70(1)(b)
Insert:
apply:
any amounts received from that disposal; and
any property specified in the order that is money;
to payment of an *associated GST entity’s liability (if any) to pay *GST in connection with the disposal; and
7 After Division 4 of Part 2‑2
Insert:
This Act’s bill:Explanatory memorandumSecond reading speech
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