Bills Digest No. 180 2001-02
Proceeds of Crime Bill 2002
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer & Copyright Details
Proceeds of Crime Bill
13 March 2002
House: House of Representatives
Portfolio: Justice and Customs
On a date to be fixed
by proclamation, or failing that, 6 months after Royal
To broaden the Commonwealth regime for the
confiscation of the proceeds of crime, including the introduction
of provisions that will enable confiscation without the need for
first obtaining a criminal conviction. Neither the Bill nor the consequential Bill actually
repeals the existing Proceeds of Crime Act 1987, but the
second reading speech indicates that the Act will be repealed at
some later stage.
The first Australian legislation-based proceeds
confiscation scheme was introduced through an amendment to the
Customs Act 1901 in 1977.(1) The
Customs Act was again amended in 1979 to allow for confiscation
without the need for a (narcotics) conviction.(2) In the
mid 1980s, the Standing Committee of Attorneys-General developed a
legislative model for a more wide-ranging conviction based
confiscation scheme. According to the recent report by the
Australian Law Reform Commission (ALRC), this model was based on
the premise that:
where a person had profited from criminal
activity, those profits should be returned to the society whose
laws were infringed. In addition, property otherwise lawfully
obtained but used in the commission of the offence or offences
could also be forfeited.(3)
This model was enacted in various forms by all
Australian jurisdictions, including the territories. In the
Commonwealth, the implementing legislation was the Proceeds of
Crime Act 1987 (POCA 1987). In 1990 NSW introduced a
new law, the Criminal Assets Recovery Act 1990, which,
other than the limited scope of the Customs Act referred to above,
introduced the first non-conviction based confiscatory regime. More
recently, Victoria and Western Australia have followed suit by
introducing non-conviction based confiscation schemes (also called
'civil confiscation') through the Confiscation Act
1997(4) and Criminal Property Confiscation Act
While the confiscation schemes in Australian
jurisdictions vary in scope, necessary burdens of proof,
investigatory powers, etc they all have some common elements or
stages of restraint, information-gathering and finally
confiscation. The following gives a very brief generic guide to
these elements for illustrative purposes only.
Where persons are suspected of certain forms of
unlawful activity, their assets and other property possibly
connected with such activity can be frozen (restrained) by court
order. This allows law enforcement agencies to investigate the
alleged activity whilst minimising the possibility of evidence and
assets being disposed of due to the suspects being alerted to the
investigation. As the scope of assets that may be frozen in the
initial period is very wide, the relevant legislation generally
provides that some property may be unfrozen for living and
(sometimes) legal expenses etc or that innocent third parties may
get their property excluded from such orders under certain
The information-gathering powers of enforcement
agencies are generally extensive, including compelling persons to
provide evidence, monitoring of financial records, as well as the
usual search and seizure powers. Some jurisdictions provide that
virtually any person, including those not suspected of being
connected with any illegal activity, must submit to interrogation
('examination orders'). The degree to which the common law
privilege against self-incrimination still applies under proceeds
of crime legislation varies considerably.
The confiscation (ie forfeiture to the State)
element can be divided into two main schemes. One where conviction
is required for assets and other property to be forfeited, the
other where a conviction is not required. In the former case,
forfeiture can either be automatic on conviction of certain
offences (generally more serious offences) or upon a court order
for other offences.
In December 1997 the ALRC was tasked by the
Attorney General to review the POCA 1987 and two related Acts and
report by December 1998. According to the ALRC's report, which was
published in June 1999
In commissioning the review, the
Attorney-General pointed to the need for effective provision for
forfeiture of the proceeds of crime in serving Australia's efforts
to counter serious crime both inside and outside of Australia. With
respect to the latter, he pointed to Australia's international
obligations, particularly under
- the 1988 United Nations Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances
- the Council of Europe Convention on Laundering, Search, Seizure
and Confiscation of the Proceeds from Crime and
- bilateral treaties dealing with mutual assistance in criminal
In terms of the complexity of the subject matter
of the review and the consultation process, the ALRC report
1.16 By early September 1998, it was clear from
both an analysis of such submissions as had been received and from
the Commission's own research and analysis that the key issues were
of greater depth and complexity than had been apparent at the
commencement of the reference. In addition, the paucity of detailed
information and analysis in some submissions coming to hand from
key stakeholders was increasingly pointing to the probability that
the Commission's own research and analysis would have to be greatly
broadened and deepened beyond what had been anticipated .
1.20 In the light of the Attorney-General's
letter of 5 January 1999, the Commission's work has been directed
exclusively to seeking to complete a final report by 31 March 1999.
This has necessarily involved decisions not to proceed with the
projected discussion paper and thus dispense with the Commission's
normal process of testing and refining reform options and proposals
through a rigorous public consultative process
1.22 The Terms of Reference clearly direct the
Commission's enquiries to what needs to be done to significantly
improve the effectiveness of the POC Act. The Commission was not
asked to revisit the fundamental policy issues, and associated
philosophical debate, regarding the need for, and desirability of,
a federal proceeds regime.
1.23 That said, the Commission acknowledges that
there exists within the Australian community a body of concerned
opinion about the civil liberties aspects of proceeds legislation
and whether proceeds legislation represents an effective policy
response to the problems that it is intended to address. While some
may be disappointed that these fundamental issues are not
readdressed in this report, the Commission remains firmly of the
view that such issues remain outside the scope of its inquiry. Of
course, where options for reform considered by the Commission give
rise to new such concerns they are addressed in the report.
The ALRC report concluded that the current
conviction-based proceeds of crime legislation [was] 'largely
ineffective'. Some of the main recommendations of the report
- a non-conviction based confiscation regime
- confiscation of literary proceeds.
- amendments to ensure the profits of unlawful conduct are not
consumed in legal expenses.
- measures to provide increased protection for the rights of
innocent third parties, particularly the rights of secured
- increased powers for the Australian Federal Police and National
Crime Authority to trace the profits of crime.
- new provisions to crack down on money
A draft Proceeds of Crime Bill was released for
public comment on 20 July 2001 and was subsequently introduced into
Parliament on 20 September 2001. Following the November 2001
federal election, an amended version of the Bill was reintroduced
on 13 March 2002.
The Senate Legal and Constitutional Committee
held an inquiry into the Bill and held approximately seven hours of
public hearings in Canberra and Sydney. Only one non-government
representative gave evidence at these hearings. The Committee
published its report in April 2002.(7) The report
recommended the Bill be passed, subject to review of the questions
of availability of legal aid and use of telephones intercepts as
evidence in proceedings under the Bill. Labor Senators also largely
supported the Bill, but had additional concerns about the clarity
of drafting in some of the important technical provisions of the
Bill. A full list of recommendations from the report are in
Appendix 1 to this Digest.
The Bill has 6 Chapters
Chapter 1 deals with introductory matters such
as objectives, territorial jurisdiction and the operation of State
and Territory laws.
Chapter 2 sets out the confiscation scheme
including the various orders that may be placed in relation to
property and proceeds.
Chapter 3 deals with 'information gathering'
including the examination of persons, production of documents
relating to property and search and seizure provisions.
Chapter 4 deals with the administration of
property that is subject to a court restraining order.
Chapters 5 and 6 deal with various miscellaneous
and definitional matters.
New section 12 provides that
the Bill binds Commonwealth, States and Territory governments
(including Norfolk Island) but these governments cannot be
prosecuted for any offence under the Bill. This latter feature is a
standard provision in Commonwealth legislation.
New section 13 applies the Bill
to all 'acts, matters and things outside Australia, and to all
persons' unless a contrary intention appears in the relevant part
of the Bill. Thus potentially the Bill covers foreigners acting
outside of Australia. While the equivalent provision in the POCA
1987 just refers to jurisdiction in terms of geographical scope,
the explicit inclusion of foreigners in the Bill may be more a
matter of clarification rather expansion of jurisdiction.
New section 14 provides that
the Bill applies even when a relevant offence or conviction
occurred before the Bill comes into force. In part, this is
justified because Bill updates an existing Act and so this
provision provides a seamless transition by preventing anything
'falling through the cracks'.(8) However, the Bill
does contain new confiscatory provisions thus on the face of it new
penalties are potentially applicable for some acts that took place
before the commencement of the Bill.
New section 15 provides that
Bill is not intended to exclude the operation of State and
Territory law as long as they are capable of concurrent operation.
Thus similar or parallel legislation would continue to operate:
only directly inconsistent law would be excluded by virtue of
section 109 of the Constitution. The POCA 1987 is silent on the
matter of operation of State and Territory law, although as
previously mentioned all State and Territories have proceeds of
crime legislation on their statute books.
Note that the term 'confiscation order' is a
general term that includes forfeiture orders, pecuniary penalty
orders and literary proceeds orders: new section
New sections 16-45 deal with
restraining orders. These orders are used to 'freeze' assets as a
preliminary step to potential confiscation.
New section 17 deals with
activity that constitutes an indictable
offence.(9) The Director of Public Prosecutions
(DPP) may make an application to 'a court with proceeds
jurisdiction'(10) if a person has been convicted,
charged or it is proposed that they be charged with an
indictable offence. In the latter two cases, the court must be
supplied with affidavits from an authorised officer stating the
grounds on which it is suspected the person has committed a
particular indictable offence. The court must then be satisfied
that the grounds on which the suspicion is held are reasonable.
Presumably this is a question of fact and thus the court must be
satisfied that grounds must support a conclusion that it was more
likely than not that the person in question committed the
If the application includes property that
belongs to someone other than the offender or suspected offender,
the affidavit must state the grounds on which it is suspected the
property is either under the effective control of the offender or
suspected offender or is the proceeds or instrument of the
If the various requirements mentioned above are
met, the court must issue the order except in two
The first is where the Commonwealth (usually
this will be the DPP) declines to give an undertaking with respect
to damages or costs in relation to the order: new section
21.(12) The second is where the offence in
question is not a serious offence - the court may refuse to make
the order if it is satisfied it is not in the public interest to do
so: new subsection 17(4). The concept of public
interest is not defined in the Bill.(13) Both the
undertaking and public interest discretions are consistent with
existing sections 44 of the POCA 1987.
Finally, the court has the discretion whether or
not to make the restraining order applicable to property acquired
after the order is made: new subsection
17(6). If the order is silent on the issue, subsequently
acquired property is not subject to the order. The Bill contains no
guidance on the use of this discretion.
The content and effect of new section
17 is essentially the same as the existing section 44 in
the POCA 1987. However, under existing section 44, where a person
has not been charged with an offence, the court can only issue a
restraining order if it is satisfied that the person will be
charged within 48 hours.(14) Under new
subsection 17(1), there is no such time limit, although
the order will cease to have effect if no charges are laid within
28 days unless an application for a confiscation order has been
made: new subsection 45(2).
New section 18 deals with
activity that constitutes a serious
offence(15). The requirements for a restraining
order are lower than for new section 17 (and for
the serious offence provisions in section 44 of the POCA 1987).
Notably, there does not even have to be a proposal to charge a
person, nor do the grounds stated in the authorised officers
affidavit have to relate to a particular offence (ie a person
could be suspected of drug smuggling over a period of time rather
than be involved in a particular importation etc). Again, the court
must make the order if the affidavit requirements are
satisfied, subject to the undertaking for damages or costs
discussed in new section 21. Unless the suspected
offence is a terrorism offence(16), it must have
happened within 6 years before the application.
New section 19 deals with
property that is suspected to be the proceeds of an indictable
offence(17). The major variation as compared to
new section 17 is that for the purposes of the
required affidavit, the perpetrator of the offence doesn't have to
be known, nor need the offence be a particular offence.
New section 20 deals with
persons suspected of deriving literary proceeds 'in relation' to
activity that constitutes an indictable offence. Literary proceeds
are defined in new section 153 and discussed later
in this digest.
The DPP may make an application to the court if
a person is suspected of committing an indictable offence, or a
foreign indictable offence. In the case of a foreign indictable
offence(18), new section 20 only
applies if the proceeds are obtained in Australia. Affidavit
requirements apply, including setting out the grounds why it is
suspected the person has committed an indictable offence (note
that, as for new sections 18 and
19, it need not be based on the committing of a
particular identified offence) and as result has gained literary
proceeds. Property subject of the order may include all
property of the suspected offender - not just the literary proceeds
flowing from the offence - or property that belongs to someone
else(19) if it is under the effective control of the
New section 24 provides that
property that is the subject of a restraining order may be used to
meet certain expenses(20) or debts, but only if
the court is satisfied that the person(21) making the
application to the court cannot meet them from unrestrained assets.
Legal expenses to defend confiscation proceedings or criminal
charges that give rise to such proceedings are not included within
the scope of new section 24, which is
significantly different from POCA 1987 in that the current Act
allows the court to make property available to meet a persons
'reasonable expenses in defending a criminal
charge'(22): POCA 1987 existing paragraph 43(3)(b).
There is no common policy in other Australian jurisdictions on this
issue. For example, subsection 14(5) of the Victorian
Confiscation Act 1997 doesn't allow for legal expenses,
but paragraphs 10(5)(b) and 16A(1)(b) of NSW Criminal Assets
Recovery Act 1990 does, albeit to a fairly limited degree.
This issue is discussed at more length in the concluding comments
section of this Digest.
New sections 25-28 deal with
the basic procedures of how the DPP obtains the restraining orders
New section 26 provides that
the DPP may apply for a restraining order by giving notice to the
owner of the property. However, the DPP can also require the court
to consider an application without such notice being given (an
ex parte hearing): new subsection 26(4).
The ex parte provision exists under POCA 1987, although a
restraining order made under such circumstances only applies for a
maximum of 14 days, unless extended: existing sections 45-45A.
There appears to be no time limit under the Bill.
Where the application is made by notice, a copy
of the application and any affidavit must also be provided to
property owner (if known). Where the DPP believes that other people
may have an 'interest'(23) in the property, the DPP must
also give them notice of application, although the affidavit does
not have to be supplied unless requested - presumably after receipt
of application. Except in ex parte situations, the court
must not hear the application unless it is satisfied that the owner
of the property has received 'reasonable' notice of the
A person who claims an interest in the
property(24) has the right to provide written and oral
evidence at the hearing. Obviously this depends on them being given
notice of the application or otherwise being aware that the
application has been made.
As stated earlier, if the DPP requests an ex
parte hearing the court has no discretion to refuse it.
(25)However, before making a final decision on the
making or otherwise of the order, the court may direct the DPP to
give or publish notice to any other person or class of persons.
This provision is also found in existing subsection 45(5) of POCA
New section 28 allows a witness
giving evidence at restraining order hearings to decline to answer
questions or provide documents 'if the court is satisfied that
[this] may prejudice the investigation of, or the prosecution of a
person for, an offence'. This provision is also found in existing
subsection 43(7) of POCA 1987.
New sections 29-32 deal with
how property can be excluded from restraining orders.
New section 29 provides that
any person whose property has been restrained by a court order
under new sections 17, 18 or 19
may apply to have particular specified property excluded from that
order. Both the type of property, and grounds for exclusion vary
according to the basis on which the restraining order was granted.
However, in general an applicant must demonstrate to the court's
satisfaction that the property is neither the
proceeds(26) nor the instrument(27) of the
offence: new subsection 29(2).
New section 30 provides that a
person who is given notice of an application for a
restraining order may also seek to have specified property excluded
from that order. The person must apply to the court within 14 days
of being notified, and must give the DPP notice of the grounds on
which the exclusion is being sought. The DPP must provide the
person with notice of any grounds on which it proposes to contest
the person s application, and may appear and adduce evidence at the
hearing of the application.
In the case of a restraining order having
already been made by the court, new section 31
enables a person whose property is restrained by the order to apply
to have some or all of the property excluded.
New subsection 31(1) provides
that a person may apply to the court for such exclusion at any time
after being notified of the order.(28) However, if a
person was given a new section 26 notice of the
DPPs intention to apply for a restraining order, the court must
give its consent before they can seek a new section
31 exclusion order. The court may grant its consent
- the person failed to appear at the hearing, they had a good
reason for not appearing, or
- the person did appear, if that person now has new evidence that
was not available at the time of the hearing, or
- the court decides there are 'special grounds'.
Where a restraining order is in force,
new section 32 provides that court must not hear a
property exclusion application if the DPP has not been given a
'reasonable opportunity'(29) to conduct an examination
of the applicant under new Part
3-1 (see discussion on examinations later in this
New sections 33-37 deal with
how restraining orders are given effect.
New section 33 requires the DPP
to give a person whose property is restrained written notification
of the order. The notice must normally include the application and
affidavits, if these have not previously been supplied. However,
the court may, on request of the DPP either delay the giving of the
notification or omit part or all of the application and affidavits,
if the court 'considers that this is appropriate in order to
protect the integrity of any investigation or prosecution':
new subsection 33(3). This compares with the
equivalent provision in existing subsection 47(2) of the POCA 1987
which states that the notice be delayed 'if the court is satisfied
that it would be in the public interest'.
New sections 34-35 allows
registration of restraining orders (including exclusions or
variations to them) with relevant Commonwealth, State or Territory
If a person disposes of property in
contravention of a restraining order, new section
36 allows a court to reverse the disposition in certain
circumstances. Typically, this might occur if property was gifted
to someone or sold for an unreasonably low price, or where the
person buying the property knew that the property was restrained
(and was thus not acting in good faith). This is equivalent to
existing subsection 52(2) of the POCA 1987.
New section 37 creates offences
in relation to contravening restraining orders. Specifically,
new subsection 37(1) makes it an offence to
dispose of or otherwise deal with property in contravention of a
restraining order where the person knows or is
reckless(30) as to whether the property is covered by a
restraining order. New subsection 37(2) makes it
an offence to dispose or otherwise deal with property in
contravention of a restraining order where the particulars of that
order were recorded on a register under new section
34 or where the person was notified of the order under
new section 33. Breaches of new section
37 may attract a maximum penalty of 5 years imprisonment,
a fine of 300 penalty units ($33 000), or both.
A significant difference between new
section 37 and the equivalent provision in POCA 1987
(existing subsection 52(1)) is the fault element. Under the POCA
1987, it is intention. Under the Bill it is
recklessness(31), or in relation to where the property
is on a section 34 register, strict liability
New section 39 allows a court
to make any 'ancillary orders orders that [it] considers
appropriate'. Examples given in the legislation are orders varying
conditions placed on restraining orders, requiring the owner of
property subject to give a sworn statement 'setting out the
particulars of, or dealings with, the property', or requiring an
owner to bring restrained property 'within the jurisdiction'. This
last example (bring within the jurisdiction) does not exist in
subsection 48(1) of POCA 1987, although the examples given in 48(1)
are not exhaustive. A contravention of a 'bring within the
jurisdiction' ancillary order is punishable by imprisonment for 5
years or a fine of 300 penalty units, or both.
In cases where a person did not receive notice
of a restraining order application (and thus could not contest it)
new section 42 allows a person to apply to have
the order revoked. However, the application must be
submitted within 28 days of the person being notified that the
order has been made. The DPP and the Official Trustee must be
informed of the revocation application: new subsection
42(2). The court may revoke the restraining order
'if satisfied' that there are no grounds on which to make the order
at the time of its consideration of the revocation application -
for example if applicant provides evidence that grounds for the
suspicion of an offence contained in an affidavit are unreasonable.
The 28 day limit in new section 42 was criticised
by NSW Bar Association as being too short.(33) This view
was supported by ALP Senators in their comments in the Senate
Report.(34) They recommended giving the court some
discretion in the matter.
Restraining orders can also be revoked or
property can be excluded from an order through a different
procedure which is set out in new section 44.
Essentially, certain securities or undertakings must be supplied to
the court, but a new section 44 applicant does not
have to show the property is not proceeds or an instrument of an
offence. This is equivalent to existing section 56 in POCA
New section 45 sets out the
different circumstances under which restraining orders cease to be
in force. The following discussion sets out some of these.
As a general rule, if a restraining
order was made on the basis of a conviction, charge or proposal to
charge (eg new section 17), it will cease after 28
days after the charge being withdrawn, or the suspect being
acquitted of all relevant offences, or on the quashing of all
relevant convictions. Similarly, the order will lapse after 28 days
of being made if the suspect has still to be charged.
However, if an application for confiscation order has been
made or granted, or an application for confirmation(35)
of a confiscation order has been made, or if the suspect is charged
with a related offence, the restraining order remains in force.
A restraining order will also cease to have
effect if a subsequent application for a forfeiture order over the
same property is refused by a court and all avenues of appeal have
been exhausted, or it otherwise ceases to have effect or the
relevant property is excluded from a forfeiture order: new
Part 2-2 of the Bill (new
sections 46-90) deal with forfeiture orders
made by the Court. This compares to Part 2-3 of the Bill
(new sections 91-114) under which forfeiture
happens automatically as a consequence of certain
convictions for serious offences.
Upon application by the DPP, a Court
must make a forfeiture order if the property has been the
subject of a new section 18 restraining order for
at least 6 months and the court is
satisfied (on the balance of probabilities) that
the person committed a serious
offence(36) within the last 6
years(37): new section 47. The finding
of the court need not be that a particular offence was committed:
new subsection 47(2). New subsection
47(3) provides that 'the raising of a doubt' as to whether
a person committed a serious offence is not of itself a
sufficient ground on which a court can find that a person did not
engage in conduct constituting a serious offence.
New section 47 (along with
new section 49) is a key section in the
proposed non-conviction based scheme and has no equivalent in the
Upon application by the DPP, a Court
must make a forfeiture order if a person has been
convicted of an indictable
offence(s) and the Court is satisfied the property is
proceeds from that offence(s): new section 48. If
the property the subject of the application is an
instrument(38) rather the proceeds of the such offence,
the court has a discretion as to whether or not to make an
Note that a person can be 'convicted' of an
offence for the purposes of the Bill even if no conviction is made
in the literal sense of the word: see new section
331. One result of this is that new section
48 may apply if a court is satisfied on the balance of
probabilities that a person has absconded and either they
have been committed for trial for the indictable offence or the
court is satisfied that on the available evidence a reasonable jury
could lawfully find the person guilty of the offence: see
new section 52
New section 49 also forms a key
part of the proposed non-conviction based scheme. Upon application
by the DPP, a Court must make an order if the property has
been the subject of a restraining order for at least 6 months and
the court is satisfied (on the balance of probabilities) that the
property is proceeds from an indictable
offence(s)(39) committed within the last 6
years. The court is not required to find that the proceeds are from
any particular offence or that a particular person has committed an
offence. However, the court must both be satisfied that the DPP has
taken reasonable steps to identify and notify any person with an
interest in the property and that there is no existing application
for the property to be excluded from the restraining order.
As previously noted, given new sections
47 and 49 are non-conviction based
schemes, they do not depend on a successful prosecution.
New section 51 explicitly states that the fact
that a person has been acquitted of an offence been charged does
not affect the court s power to make a new section
47 or 49 forfeiture order. In part this
may reflect the different standards of proofs - balance of
probabilities for a new sections 47 or
49 order as compared to beyond reasonable doubt
for conviction of a criminal offence.
New section 55 allows the court
to specify interests in property other than the interest of the
person who is the subject of a forfeiture order and may make
ancillary orders to protect such interests. The Explanatory
Memorandum to the Bill(40) gives the example of where
property is owned by joint tenants, the disposal of the entire
property may be the only way to realise the value of that property.
In such a situation the court could specify that the interest of
the innocent joint tenant is to be included in the forfeiture
order, but protect that person s rights by making an ancillary
order that the Commonwealth pay that person half of the proceeds
from the sale.
New section 57 effectively
allows that a person who had an interest in forfeited property to
buy back the interest(41), if the court is satisfied
that is not contrary to the public interest and that there is no
other reason not to do so. The provision is based on existing
section 33 of the POCA 1987.
New section 60 requires that
the court must give its leave before the DPP can apply for
forfeiture orders relating to property that has been the subject of
a previous application(42) that has already been decided
on by the court. The Court may only grant leave if it finds that
the property to which the new application relates was identified
only after the first application was decided, necessary evidence
became available only after the first application was determined,
or it is in the interests of justice to grant the leave.
New section 61 requires the DPP
to give written notice of an application for a forfeiture order to
a person whose conviction of an offence has enabled the
application. The DPP must also give notice to any person who claims
an interest in property covered by an application and to any person
who the DPP reasonably believes may have an interest in that
property.(43) In addition, the court may direct the DPP
to give or publish notice of an application to a specified person
or class of persons at any time before the application is
determined. Persons claiming an interest in property the subject of
applications have the right to appear before the court and provide
evidence regarding their interest.
Section 69 deals with when the
Commonwealth can dispose or otherwise deal with property the
subject of a forfeiture order. While the general rule is that the
Commonwealth must wait until any relevant appeal or appeal periods
have been determined or expired, the court may grant leave for any
dealing to occur at an earlier date. There are no provisions that
indicate the circumstances under which the court may grant
New section 70 deals with how
the Commonwealth must deal with property the subject of a
forfeiture order. The general rule is that the amount released from
the disposal of the property, less handling costs of the Official
Trustee(44), must be credited to the 'Confiscated Assets
Account'. However, if the Official Trustee has not yet begun 'to
deal with property', the Minister or a duly authorised senior
Departmental official may direct that the property be dealt with in
another way. This presumably includes that the funds realised by
the disposal be applied in another way. This is equivalent to
existing subsection 20(3A) in the POCA 1987.
New section 71 creates an
offence of dealing with registrable property that is subject to a
forfeiture order before registration of the Commonwealth s
interest, knowing it to be subject to a forfeiture order. This is
equivalent to existing section 97 in POCA 1987. A contravention of
new section 71 is punishable by imprisonment for 5
years or a fine of 300 penalty units, or both
New section 72 enables a court
to make an order for the benefit of dependant(s) of a person whose
property is the subject of a new section 47 or
49 forfeiture order. However, the court must be
satisfied that both the amount of the beneficial order would
relieve the hardship that they would otherwise experience and,
where the dependant is 18 years or over, that they had no knowledge
of the person's conduct that has resulted in the forfeiture
New section 73 enables a court
to exclude particular property from a forfeiture order. The court
must make an exclusion order on application(45)
by a person if the forfeiture order (or forfeiture application) is
made under new section 47 or 49,
and the court is satisfied that the property sought to be excluded
is not the proceeds of unlawful activity .(46) In the
case of third party applications (ie persons who are not suspects)
the court must exclude property if it is satisfied both
that the person was not involved in the offence or offences to
which the order relates and the property to be excluded is not the
proceeds of unlawful activity.
In relation to new section 48
forfeiture orders, the court must make an exclusion order
if it is satisfied both that the applicant was not in any way
involved in the commission of any of the offences to which the
forfeiture order or forfeiture application relates and the property
in question is neither proceeds nor an instrument of any of those
Note that if the property the subject of a
exclusion order has already been disposed of, the order must direct
the Commonwealth to pay the applicant an amount equal to the value
of the property specified in the order: new subsection
New section 77 deals with the
situation where property forfeited as proceeds under a forfeiture
order was acquired partly through legitimately obtained funds. In
this case, after the property is disposed of by the Commonwealth,
the proportion acquired through legitimate means would be 'given
back' by way a compensation payment order. Such orders are not
automatic - they must be applied for within six months after the
forfeiture order was made, although a court may give leave if the
period is greater than six months: new section
Under section 80, where
new sections 47 or 49
(non-conviction based) forfeiture order are made against a person
in respect of a particular offence, the subsequent acquittal or
quashing of a conviction for that does not affect the
forfeiture order. The acquittal or quashing of a conviction could
be on the grounds, that although the evidence suggested on the
balance of probabilities the accused was guilty, the evidence was
not strong enough to prove the charge beyond reasonable doubt. The
fact that a quashing based on these grounds does not affect a
new section 47 or 49 forfeiture
order is entirely consistent with the policy intent of the
By comparison, where a conviction relating to a
new section 48 order is quashed, the order is
discharged (ie ceases to have effect) unless the DPP has applied
for an order confirming (ie it remains in force) the forfeiture
within 14 days: new section 81. If the DPP makes
such an application, the forfeiture order is not affected by the
quashing of the conviction until that application is
Under new section 84 the court
may confirm the section 48 forfeiture order relating to a
conviction which has been quashed if it is satisfied that it could
have made a forfeiture order at the time of the original forfeiture
order application under either new
sections 47 or 49(49), ie an order
based on a lower standard of proof. The provision for such
confirmation orders in the Bill appear to be unique amongst
Australian jurisdictions which have non-conviction based
If a forfeiture order is discharged by a
successful appeal or by the quashing of a conviction, the DPP must
notify all persons they reasonably believe have an interest in the
property: new section 87. New section
88 requires the responsible Minister to arrange for the
return of interests in the relevant property. If the property has
been disposed of or otherwise no longer vested in the Commonwealth
the Minister must arrange for a compensation payment.
Part 2-3 Forfeiture on conviction
of a serious offence
This Division provides that property may be
automatically forfeited (ie there is no need for a court order)
upon a person's the conviction of a serious offence.
New section 92 sets out the
circumstances in which automatic forfeiture can occur. Besides the
requirement for a conviction for a serious offence(50),
the property in question must be either the subject of a
restraining order(51), or the subject of a restraining
order which was fully or partially revoked through the giving of
security or an undertaking under new section 44.
Property belonging to a third person may be forfeited.
Property will normally be automatically
forfeited six months from the date of conviction, although this may
be extended to up to 15 months by a court under new section
93. Extensions can only be granted where a person has
already applied to have property excluded from a restraining order
under new section 31.
Section 94 allows a person who
has been convicted of a serious offence to apply for an exclusion
order from new section 92 forfeiture. The DPP may
of course contest the application. The court may make such an order
providing it is satisfied that the property is neither the proceeds
or instrument of unlawful activity. This provision is based on
subsection 48(4) of the Proceeds of Crime Act 1987.
Under new section 99, unless
the court gives leave, the Commonwealth can only sell or otherwise
deal with the new section 92 forfeited property
after a person has failed to lodge an appeal with the prescribed
period or where the appeal fails.
New section 100 mirrors
new section 70 regarding proceeds of disposal of
forfeited property in that normally, the proceeds, less the costs
associated with the restraining order and final disposal, goes to
the Confiscated Accounts Account (CAA)(52) but the
Minister or an authorised senior Departmental officer may direct
the property be disposed of or dealt with in some other way:
new subsection 100(2). New subsection
100(2) is silent on where any funds from this will go.
This is equivalent to existing subsections 30(4A)-(5) in POCA
New section 102 allows the
court to restore, or otherwise compensate, new section
92 forfeited property to a person with an interest in the
property if the person obtained the property in good faith, is not
in any way involved in a relevant offence and the property has no
connection with the offence. A person with an interest in the
property can also buy back the property under new section
103. There are less stringent conditions where this may
happen as compared to new section 102, the main
one being that the court must be satisfied that this would not be
contrary to the public interest. There are time limits and other
restrictions on new sections 102 and 103
applications, although the court maintains a limited discretion to
allow an application if the applicant is deemed to be not at fault
for a delay: new section 104. New sections
102-104 are equivalent to existing subsection 31(4)-(7) in
the POCA 1987.
Where a conviction relating to a new
section 92 forfeiture order is quashed, the order is
discharged(53) (ie ceases to have effect) unless the DPP
has applied for an order confirming (ie it remains in force) the
forfeiture within 14 days: new section 107. If the
DPP makes such an application, the forfeiture order is not affected
by the quashing of the conviction until that application is
New section 110 enables a court
to confirm the forfeiture if it is satisfied that it could make
either a new section 47 or 49(55)
forfeiture order in relation to either the person or the property
under either clause. As discussed under new section
84, confirmation order provisions are not found in POCA
Where a forfeiture order ceases to apply, the
DPP must provide notice to persons with an interest in the relevant
property to advise them of their right to apply under new
section 113 for the transfer of the interest or its value.
Where such a person applies, new section 114
requires the Minister to arrange for the return of interests in
property, or if the interest has been already been disposed of, to
arrange for the payment to the person of an amount equal to the
value of the person s interest. New sections
113-114 are equivalent to existing section 32 in the POCA
A pecuniary penalty order (PPO) is an order that
requires a person to pay an amount of money to the Commonwealth. As
with most other types of orders under the Bill, PPOs are made by a
court on application by the DPP.
A court must order grant a PPO if is
- that the person has been convicted of an indictable offence
and has derived benefits from the commission of that
offence; and / or
- that the person has committed a serious
PPOs can be made even if another order, such as
a forfeiture order, has been made in relation to the relevant
offence. A PPO may also be made even when a person has been
acquitted of an offence: new section 120.
The amount of the PPO is be determined by
prescribed calculations, which are different depending on whether
the offence is a serious or non-serious offence.
Essentially, if the offence to which the order
relates is a non-serious indictable offence, the court
must assess the value of the benefits the person derived from the
commission of the offence in accordance with a wide variety of
matters set out mainly in new sections 122-124.
The court must then assess the value of any deductions available to
the person pursuant to new sections 130-132 (these
include other forfeiture orders, tax and fines paid) and reduce the
value of the benefits gained by the person by that amount.
The difference for a serious offence is that the
benefits taken into account are not limited to those derived from
the particular offence in question, but extend to any
benefits the person has derived from any 'unlawful activity' within
the period commencing six years(57) before either the
application for the PPO or the application for a restraining order
if one is in place, and the date of determining the penalty
In assessing what benefit a person derived from
an offence, new section 122
requires the court to have regard to the whole range of property
(including the value of narcotics where relevant) that came into
the person's possession because of the illegal activity, any other
benefits, and the value of property and of income and expenditure
from and to any source over any time frame. In relation to
non-serious offences, new section 123 appears to
say that court must calculate the net benefit being the difference
between the value of the person's property before the offence and
the whatever was the person's maximum level of property during or
after the offence(58). However, this is reduced if the
court is satisfied that some of the increase in property was
unrelated to the illegal activity.(59) The formula is
reasonable similar for a serious offence PPO.
Note that benefits may include property that is
not a person's property but under their control or where it has
vested in certain trustees under the Bankruptcy Act 1966:
new section 129.
Subject to limited exceptions, applications for
PPOs must generally be made by the DPP within six months of
conviction (for non-serious offences) or nine months of conviction
(for serious offences): new section 134. Notice
requirements to property owners apply in the same way as to other
types of confiscation orders.
Under new section 141, property
belonging to another but under the effective control of the person
against whom the PPO is made can be used in payment of the PPO. If
the DPP makes an application to make such property available to the
Commonwealth for the payment of the PPO, the DPP must give notice
of the application to any other person who they have reason to
believe has an interest in the property. Such persons may give
evidence at the hearing of the application.
As previously mentioned, a PPO may be made with
respect to a serious offence even if a person has not been
convicted of that offence. In such cases, a subsequent quashing of
a conviction does not affect the validity of the PPO: new
section 145. If the PPO was in relation to a conviction,
and this is quashed, the PPO is discharged unless the DPP
applies for a confirmation in a similar manner to forfeiture
orders. However, an application for a confirmation can
only be made where the offence in question was a serious
offence: new section 146. In this case, the court
may confirm the PPO if it is satisfied that there were reasonable
grounds to suspect the person had committed the offence on which
the PPO was based: new section 149. On
confirmation, any quashing of the conviction does not affect the
PPO: new section 150.
Part 2-5 Literary proceeds
On application by the DPP, a court may
make a literary proceeds order (LPO) against a person whom it is
satisfied (on balance of probabilities) has committed an indictable
offence(60) and has derived literary proceeds:
new section 152. The proceeds must have been
derived after the Bill commences.
If a person is acquitted of a relevant offence,
the court may still make a LPO in relation to the offence:
new section 157.
To paraphrase new section 153,
literary proceeds are defined to be any benefit that a person
derives from the commercial exploitation of their
notoriety(61), resulting from their involvement in the
commission of an indictable offence. Such proceeds may include
property belonging to third person but under the effective control
of the target of the LPO, or property which has been paid or
transferred to a third person at the request or direction of the
New section 154 specifies a
number of matters a court may choose to take into account in
deciding whether it is appropriate to make a LPO. These matters
include the nature and purpose of the product or activity, whether
it was in the public interest(62), whether it had any
social, cultural or educational value, the seriousness of the
offence, and the time that has elapsed since the offence.
New section 155 provides that
the DPP can apply for a literary proceeds order on each and every
occasion on which it is considered that there has been a commercial
exploitation of the person s involvement in an indictable
Under new section 158, the
amount of the LPO is at the discretion of the court, as long as it
does not exceed the proceeds themselves after taking into account
the expenses incurred in deriving the proceeds, tax paid and / or
any other forfeiture order, PPO, previous LPO etc. Note the LPOs
can also cover expected future benefits - for example where a
person the subject of the order is entitled to royalties or
progress payments: new section 178.
LPOs are obtained in a similar way to other
types of orders under the Bill. Although a conviction is not
required for the court to make a LPO, if a LPO has been made 'in
relation' to a conviction, a quashing of that conviction will
discharge the LPO unless a confirmation order is applied for:
new section 173. A court may make such a
confirmation order if it is satisfied that at the time the LPO was
originally applied for, it would have been satisfied on the balance
of probabilities that the person committed the relevant offence:
new section 176.
Examination provisions exist in the POCA 1987
(existing paragraph 48(1)(c) and in NSW, Western Australian and
Victorian legislation, although the provisions are generally not as
detailed or wide ranging as is proposed in the Bill.
New section 180 provides that
where a restraining order is in force, a court may make an order
that any person be 'examined' (questioned) about the
'affairs' (for example, the nature and location of any property)
- a person who owns or claims an interest in relevant property,
and /or their spouse(63), or
- a person named in a restraining order as a suspect, and /or
Examination orders can also be made where the
DPP makes an application for confirmation of a forfeiture order,
PPO or LPO: new section 181.
If an examination order has been made by the
court, the DPP then must apply to an approved examiner for that
examiner to give a notice to a person the subject of the order:
new section 183. The notice may require the person
to produce at the examination any documents specified in the
notice: new section 185.
An approved examiner is defined as a person who
holds an office or who is included in a class of people specified
in proposed regulations or who has been specifically appointed by
the Attorney-General under new section 183. The
Explanatory Memorandum to the Bill comments:
It is currently anticipated that those who may
be appointed as approved examiners would include Members of the
Administrative Appeals Tribunal above a certain rank, Members of
the Administrative Appeals Tribunal with at least five years
admission as a legal practitioner, persons who have held judicial
office and have signified their willingness to be an approved
examiner, former Magistrates who have signified their willingness
to be an approved examiner, and persons with relevant
qualifications including at least five years admission as a
practitioner who have signified their willingness to be an approved
New section 187 enables the DPP
and the approved examiner to examine a person on oath or
affirmation. The approved examiner may require the person (the
examinee) to take the oath or make the affirmation. New
subsection 187(5) allows the approved examiner to require
the examinee to answer a question put to the person at the
examination that is relevant to the affairs of a person referred to
above in new section 180.
Under new section 188, the
examination must take place in private. The approved examiner, the
examinee and their lawyer, the DPP and any person whom the approved
examiner has directed may be present are the only people entitled
to be present at the examination. Examinations can be conducted by
video link in certain cases, as long as the examiner is satisfied
it is consistent with the interests of justice: new section
The role of the examinee's lawyer is
circumscribed by new section 189 in that it is the
examiner who decides when the lawyer may 'address' the examiner and
ask the examinee questions relevant to matters on which they have
been examined. The approved examiner can also stop the examinee s
lawyer addressing the approved examiner or stop the examination by
the lawyer if the approved examiner thinks the lawyer is 'trying to
obstruct the examination'. This provision is based directly on
subsection 23(2) of the Australian Securities and Investments
Commission Act 2001.
The approved examiner must make a record of the
statements made at the examination if requested by the examinee or
by the DPP: new section 191. Where the record is
in writing, the approved examiner may require the examinee to read
and sign it. However, the fact that the examinee signs it
because of that requirement 'does not of itself constitute
an acknowledgment by that person that the record is accurate':
new subsection 191(4). New subsection 191(4) has
no obvious precedent in Australian legislation and it is difficult
to know what evidentiary weight will be placed on such a record if
it is subsequently disputed by the examinee. If the person being
examined requests in writing a written copy of the record, the
approved examiner must provide it without charge.
New section 193 allows the
examiner to give directions preventing or restricting public
disclosure of any information arising from the examination. In
deciding whether to give a direction, examiner must 'have regard'
- whether such information is of a confidential nature or relates
to the commission or suspected commission of an offence; and
- any unfair prejudice to a person s reputation that could result
from possible disclosure; and
- whether it is in the public interest to give the direction;
- any other relevant matter
Disclosure contrary to the direction is an
offence attracting a maximum penalty of a fine of 30 penalty units:
new section 201. Disclosure for the purpose of
legal advice in or legal proceedings does not constitute an
New sections 195 and 196 create
various offences such as failing to attend an examination, refusing
to take an oath or affirmation, refusing to answer a question or
produce a required document etc. However a person cannot be
compelled (ie they can refuse) to answer a question or produce a
document if another law allows them to do so, except if
the only reason why the person could not be so compelled
is because of self incrimination, legal professional privilege, or
because the answer or the document would be under statute
inadmissible in legal proceedings for a reason other than being
privileged from disclosure: new section 197. A
contractual obligation not to disclose information or an obligation
under a foreign law not to disclose information cannot excuse a
person from refusing to answer a question or produce a document.
Maximum penalties for breaches of new sections 195 and
196 are 6 months imprisonment or a fine of 30 penalty
units, or both.
New section 198 provides that
an answer given or document produced in an examination
cannot be used in civil or criminal proceedings against
the person who gave the answer or produced the document,
except in certain circumstances which directly relate to
proceedings under the Act.(66) Note that new
section 198 does not confer 'derivative-use
immunity' - thus information or things that are subsequently
obtained by authorities acting on information from the examination
are potentially admissible in civil or criminal proceedings. The
Victorian and Western Australian legislation do not give
any type of immunity for civil proceedings.(67)
The Western legislation is ambiguous about whether any immunity is
given for criminal proceedings.
New section 202 provides that,
on application by an authorised officer of an enforcement agency, a
magistrate(68) may make a production order requiring a
person to produce, or make available for inspection,
property-tracking documents. The definition of property-tracking
document is extremely wide and would effectively include almost any
financial document, although where the relevant offence is a
non-serious indictable offence, the person to whom the property
relates must be at least proposed to be charged with the offence.
For serious offences, reasonable grounds to suspect the person of a
relevant offence (although the specific offence need not be
identified) is sufficient.
An order can only be made if the magistrate is
satisfied that the person is reasonably suspected of having
possession or control of property-tracking documents. Also, a
production order can only cover documents that are in the
possession, or under the control, of a corporation or are used, or
intended to be used, in the carrying on of a business. According to
the Explanatory Memorandum to the Bill,
this restriction on the type of documents that
can be required has been made because the privilege against
self-incrimination does not apply to production orders and only a
use immunity is conferred preventing their admissibility in certain
criminal proceedings. No derivative use immunity has been conferred
and therefore no documents in the custody of an individual that
relate to the affairs of an individual can be compelled to be
produced. These must be sought under an examination order or seized
under the search powers.(69)
New subsection 206(2) provides
that any document produced or made available is not
admissible in evidence in criminal proceedings against a natural
person (as opposed to a company) except for the standard provision
of prosecution for giving false or misleading information or
documents. By comparison, existing subsection 66(13) of the POCA
1987 goes further than new subsection 206(2) in
that POCA 1987 also provides derivative use immunity in relation to
New section 209 makes it an
offence to make a false or misleading statement in, or in
connection with, an application for a production order. The maximum
penalty is 12 months imprisonment and /or a fine of 60 penalty
units, or both. New section 210 also creates
entirely new offences of disclosing the existence or nature of the
production order (including information that could allow a person
to infer its existence or nature) where the order prohibits this.
Penalties are double that for new section 209.
Disclosure for the purpose of obtaining legal advice or in legal
proceedings of information covered by a direction does not
constitute an offence, nor where the disclosure is made to an
employee, agent or other person in particular circumstances. As for
new section 201, the defendant bears an evidential
onus in relation to those exceptions.
New section 211 provides that
it is an offence to fail to comply with a production order where
the order is given to the person and that person has not been
notified of sufficient compliance in relation to the order.
Sufficient compliance occurs where that person gives any authorised
officer a statutory declaration stating that the person does not
have possession or control of the document, and the officer
notifies the person that the declaration is sufficient compliance
with the production order. The maximum penalty for breach of
new section 211 is 6 months imprisonment and /or a
fine of 30 penalty units, or both. Destroying or interfering with a
document subject to a production order attracts the same penalty
under new section 212.
There are no equivalent provisions in the POCA
1987 nor does it appear there are any in other Australian
The Explanatory Memorandum comments in relation
to this element of the Bill:
This is a form of investigative power, and may
be exercised to allow the investigator to make a decision on
whether to take action under the Act eg to seek a warrant or
production order, or for the purpose of proceedings under the Act.
One of the reasons for the Notice is for AFP or NCA investigators
to discover if a person holds an account with the particular
institution: that is, there may be a known suspect, but the
location of their funds is not known. The provisions are based on
Recommendation 76 of the 1999 ALRC Report Confiscation that
counts: A review of the Proceeds of Crime Act
Under new section 213, certain
senior members of the AFP or any member of the NCA may give a
written notice to a financial institution requiring the production
of any information or documents relevant to certain account and
transaction information. There is no involvement of a court. The
notice can only be given if the officer reasonably believes that
giving the notice is required to determine whether to take action
under the Act, or in relation to proceedings under the Act.
New section 215 provides that a
financial institution or any of its officers, employees or agents
are protected from any action, suit or proceeding in relation to
any action taken by the institution or person in relation to its or
their response to a notice under new section 213,
or in the mistaken belief that action was required under the
Similar offences and penalties as to production
orders apply regarding unauthorised disclosure, failing to comply,
making false statements etc: see new sections
Part 3-5 Monitoring
Monitoring orders provisions are found in the
POCA and most other Australian confiscation legislation.
New section 219 allows a judge
of a State or Territory court(71) to make a monitoring
order that a financial institution provide information about
transactions conducted during a particular period through an
account held by a particular person with the institution. The judge
must not make the order unless satisfied that there are reasonable
grounds for suspecting that the person has committed, or is about
to commit, a serious offence; was involved in the commission, or is
about to be involved in the commission, of a serious offence; or
has benefited directly or indirectly, or is about to benefit
directly or indirectly, from the commission of a serious offence.
An order may also be made if the judge is satisfied that there are
reasonable grounds for suspecting that an account is being used, to
commit a money laundering offence against Part 10.2 of the
Criminal Code Act 1995. It is irrelevant whether the
person who holds the account themselves commits or is involved in
the money laundering in question.
The same type of protection from suits applies
in new section 221 as referred to earlier in
new section 215. Also, similar offences, but
substantially heavier penalties as compared to notices to financial
institutions apply regarding unauthorised disclosure, failing to
comply, making false statements etc: new sections
225 enables a magistrate to issue a search warrant
if satisfied by information on oath that there are reasonable
grounds for suspecting that there is, or will be within the next 72
hours, tainted property(72) or evidential material at
the premises. This 72 hour limit is reduced to 48 hours if the
application is made by telephone or other electronic means.
The Bill's search and seizure are all fairly
standard provisions, and many are based on existing sections of the
Crimes Act 1914. Documents and other information which are
subject to legal professional privilege cannot be seized:
new section 264.
New section 237 provides that a
search warrant cannot authorise a strip search or a search of
person s body cavities. Should a person be arrested, a person can
be subject to strip searches under the circumstances outlined in
existing in section 3ZH of the Crimes Act
1914.(73) The taking of blood samples and the like
are governed by existing Part 1D of the Crimes Act
Force may be used in executing a warrant if it
is 'necessary and reasonable in the circumstances': new
section 238. The provision is based on section
3G(74) of the Crimes Act 1914.
A copy of the warrant and a document setting out
the rights of the person must be made available to the occupier of
the premises (or another person who apparently represents the
occupier) if they are on the premises at the time: new
section 240. A copy of the warrant must also be made
available to the person being searched under the warrant.
Occupiers of a place the subject of a warrant
are entitled to remain and observe except if they impede
the search, or if they are under arrest and allowing the person to
observe the search 'would interfere with the objectives of the
search': new section 241.
New section 244 enables a thing
found at premises during the course of a search to be moved to
another place for examination or processing in order to determine
whether it may be seized. That may occur provided the occupier
consents, or, if the occupier does not consent, provided that two
other conditions are satisfied. Firstly, there must be reasonable
grounds to believe that the thing contains or constitutes
evidential material. And, secondly, it is significantly more
practicable to do so having regard to the timeliness and cost of
examining or processing the thing at another place and the
availability of expert assistance.
Things moved off premises under new
section 244 may be held for only 72 hours, unless a
magistrate grants an extension.(75) The occupier of the
premises from whence the thing was moved, or their representative,
is entitled to be present during the examination or processing if
'it is practicable'.
Upon application, a magistrate may grant a
search assistance order in relation to data held in or accessible
from a computer: new section 246. To grant the
order, the magistrate would have to be satisfied that (i) there are
reasonable grounds for suspecting that evidential material is
accessible from the computer; (ii) the specified person falls
within a certain category of persons (for example, the owner or
lessee of the computer); and (iii) the specified person has certain
knowledge concerning the computer.
If damage is caused to equipment(76)
when it is operated by persons involved in the search and seizure
operations, compensation is payable, but only if the
damage resulted from insufficient care being exercised either in
selecting the person to operate the equipment or by the person
operating it. This limited liability is contained other
Commonwealth legislation such as the Cybercrime Act
Searches of vehicles, aircraft, ships etc may be
made without warrant if an officer 'suspects on reasonable grounds'
that they contain tainted property or evidential material, it is
necessary to seize the thing to prevent concealment, loss or
destruction and that it is necessary to act immediately 'because
the circumstances are serious and urgent'; new section
The effect of new section 263
is that the provisions in new sections 225-266 do
not subtract from any powers or limitations contained in other
relevant Commonwealth, State or Territory laws. The Explanatory
Memorandum to the Bill comments:
This ensures that, despite references in Part
3-5 to the search of persons or premises etc, officers
investigating offences under the Act will still be able to avail
themselves of any relevant laws (for example, similar provisions in
Part 1AA of the Crimes Act 1914).(77)
New section 265 provides that a
magistrate in a State, the Northern Territory, Norfolk Island or
the Australian Capital Territory may issue a search warrant in that
State or Territory; another State or Territory if he or she is
satisfied that there are special circumstances that make the issue
of the search warrant appropriate; or a non-governing
Part 4-2 Legal assistance
New section 292 requires that
the Official Trustee reimburse legal aid commissions (LACs) from
the suspect s restrained assets for the cost of representing the
suspect in criminal proceedings and proceedings under the Act.
Similarly the Official Trustee is required to reimburse legal aid
commissions (LACs) from restrained property of other persons for
the costs of representing those persons in proceedings under the
If legal costs reimbursable under new
section 292 are greater than the value of restrained
assets, the LAC can recover the difference from the Confiscated
Assets Account (CAA): new section 293. A LAC can
also reimbursed from the CAA where the disposal by the Official
Trustee of the restrained assets would take considerable time.
The issue of legal assistance is discussed in
the concluding comments section to this Digest.
The proceeds of confiscated assets and various
other moneys are to be placed in a special account established by
new section 295. New
section 298 gives the responsible Minister power to
approve the use of money in the CAA for one or more purposes
relating to crime prevention, law enforcement, drug treatment and
diversionary measures relating to the illegal use of drugs.
New section 300 enables the
costs of LACs to be met prior to the restrained assets being
released by creating a charge on the property for the payment of
the LAC expenses.
New section 315 provides that
all proceedings under the Act are civil proceedings and that
except for the offence provisions contained in the Act,
the rules of construction and evidence applicable in civil, rather
than criminal, law apply.
New Section 317 provides that
subject to new sections 52 and
118(78), all questions of fact
determined by the court in relation to an application are to be
determined according to a civil standard, ie the balance of
probabilities, rather than a criminal standard, ie beyond
reasonable doubt. It also states that it is the applicant for any
order under the Act that bears the burden of proof in terms of
establishing any grounds necessary for making the order.
Where any court is considering a sentence for a
person convicted of an indictable offence on which a forfeiture
order, LPO or PPO is based, new section 320 sets
out what matters the court may or must take into account. In
particular, the court cannot reduce a person s sentence on the
grounds that they forfeited the proceeds of the offence.
New section 322 enables a
person against whom a forfeiture order, LPO or PPO is made, or
whose interest in property is subject to such orders to appeal the
orders. It is equivalent to existing section 100 in the POCA
Where the order was made in reliance of a
conviction of an offence, new subsection
322(2) provides that the person may appeal against the
order in the same manner as if it was part of the sentence imposed
by a court in respect of the offence.
New subsection 322(3) provides
that, in any other case (that is, where the relevant order was not
made in reliance of a conviction), the person may appeal against
the targeted order as if the person had been convicted of the
offence to which the primary order relates and that order was, or
was part of, a sentence imposed on the person in respect of the
The DPP may appeal against both the making of an
order by the court or the refusal by a court to make an order:
new subsection 322(5).
New subsection 323(1) sets out
the circumstances in which the court may order the Commonwealth to
pay all costs incurred by a person involved in certain proceedings
in relation to forfeiture or restraining orders. These are:
- the person must bring, or appear at, proceedings under the Act
in order to prevent a forfeiture order or restraining order from
being made against property of the person, or to have property
excluded from such orders; and
- the person must be successful in the proceedings; and
- the court must be satisfied that the person is not involved in
the commission of the offence relating to the orders.
New subsection 324(1) deals
with the constitutional issue of separation of
powers.(79) Specifically, it provides that powers
conferred by the Bill on a State or Territory judge or on a
magistrate that are neither judicial nor incidental to a judicial
function or power, are powers conferred on that person in a
personal capacity and not as a court or a member of a court. They
not obliged to accept the power conferred. New
subsection 324(3) provides that in exercising a
conferred power, such judges or magistrates nonetheless have the
same protection or immunity as if they were exercising judicial
power as a member of their relevant court.
New section 327 requires the
responsible Minister to cause an independent review of the Act to
be undertaken as soon as practicable after the Act has been in
operation for three years. The review report must be in writing,
provided to the Minister and then tabled in both houses of
Parliament within 15 days of its receipt by the Minister.
The centrepiece of the Bill is the power given
to a court to confiscate property on the basis that it is satisfied
on the balance of probabilities that property was acquired as a
result of a serious offence being committed.
The arguments for and against such
non-conviction based confiscation were extensively canvassed before
the Senate Committee and are not repeated here in any length.
However, the Committee was clearly of the view that the evidence
suggested that non-conviction based confiscation was more effective
than conviction-based schemes in 'locating and confiscating the
proceeds of crime'. The Committee was not persuaded that the
perceived ineffectiveness non-conviction based confiscation was
more a function of a possible lack of resources given to law
enforcement agencies. The Committee also seems to have given
implicit acknowledgment that the Commonwealth law enforcement
agencies would seek to work through State non-conviction based
confiscation schemes if the Bill was not passed and
in this view the debate has moved on from the
implications of civil forfeiture to the need to ensure that the
Commonwealth is as well equipped as the States to combat organised
It is worthwhile to reproduce a small section of
the ALRC report that considered the issue of confiscation without
2.64 If the conclusion is reached that the
justification for confiscation of profits springs from conviction
for a criminal offence, the establishment of a complementary civil
regime under which confiscation would follow from a civil finding
of unlawful conduct on the balance of probabilities could be seen
to give rise to civil liberties concerns. Specifically, the
question might be raised whether what was seen as in essence a
remedy ancillary to a finding of proven criminality beyond a
reasonable doubt could now be brought to bear on a defendant
without such a finding, ie by the discharge of the lower civil
burden of proof.
2.65 If, on the other hand, the better analysis
is that the denial of profits is to be regarded as rooted in a
broader concept that no person should be entitled to be unjustly
enriched from any unlawful conduct, criminal or otherwise,
conviction of a criminal offence could properly be seen as but one
circumstance justifying forfeiture rather than as the single
precipitating circumstance for recovery of unjust enrichment.
2.66 It is the Commission's considered opinion
that the latter analysis is to be preferred. Its assessment is
based on public policy considerations, taking into account a clear
pattern of developing judicial and legislative recognition of a
general principle that the law should not countenance the retention
by any person, whether at the expense of another individual or
society at large, of the profits of unlawful conduct.
The range of property that is subject to
restraining orders depends both on the basis of the order (eg
whether a person is proposed to be charged or not, whether the
suspected offence is a serious offence or not) and whether property
is the suspect's or belongs to a third party. In general, third
party property(81) can only be restrained if the court
is satisfied it is proceeds of the offence. Property is considered
to be proceeds of the offence even if only part of it is 'derived
or realised' from the offence - such as a house that was jointly
acquired by a suspect and an (innocent) third party with each
contributing 50%. Property that was formerly proceeds of the
offence will cease to become so if a third party acquires it at its
fair value and in entirely good faith.
In terms of safeguards, the court may require
the Commonwealth to give an undertaking 'with respect to costs or
damages' before restraining property. Should such an undertaking be
given, presumably this allows a person who is subsequently
successful in releasing property from restraining or other orders
to be appropriately compensated.
Applications may be made by any person whose
property is covered by either a restraining or forfeiture order to
have it excluded from the order, generally on the basis it isn't
proceeds of any offence. The applicant must show this on the
balance of probabilities. Property may be excluded from a
forfeiture order in a similar manner.
If the court does decide to make a forfeiture
order over property such as the jointly owned house mentioned
above, it can ensure that the innocent third party is paid an
amount on disposal of the house that would equal their 50% share.
Alternatively, the third party could buy out the suspect's share
(proceeds going to the Commonwealth). Even persons who have been
convicted of an offence and consequently had property forfeited as
proceeds can be compensated if they can demonstrate some portion of
the property was acquired with legitimate funds.
The court can make an order for the benefit of
dependant(s) of a person whose property is the subject of a
non-conviction based forfeiture order. To do so, the court must be
satisfied that both the amount of the beneficial order would
relieve the hardship that they would otherwise experience and,
where the dependant is 18 years or over, that they had no knowledge
of the relevant conduct of the person to whom the forfeiture order
As mentioned in the main provisions section of
this digest, POCA 1987 allows the court to make restrained property
available to meet a persons 'reasonable expenses in defending a
criminal charge'. In most instances, such a charge would be the one
that gave rise to the restraining order itself. There is no common
policy in other Australian jurisdictions on this issue. For
example, the Victorian Confiscation Act 1997 and Western
Australia Criminal Property Confiscation Act 2000 do not
provide for the payment legal expenses from restrained property.
However, the Queensland Crimes (Confiscation) Act 1989 and
NSW Criminal Assets Recovery Act 1990 allow it, provided
the court is satisfied that the funds being used for payment are
not proceeds of the offence / proceeds from illegal activity.
The ALRC report recommended that the model
contained in POCA 1987 - ie that restrained property could be made
available for legal expenses - be discontinued. The report
recommended that the defendant would have a primary obligation to
fund legal expenses from unrestrained property but if they could
not do so they would be entitled to apply for legal aid. The
relevant legal aid commission would be obliged by
legislation to provide such aid as to mount an 'adequate'
defence. The defendant would be entitled to seek a review by a
court if they considered the aid inadequate.(82)
The Bill adopts the ALRC report as far as
discontinuing the POCA 1987 model but does not oblige LACs
to provide for an 'adequate' defence, nor is there a role for a
court in reviewing the commission's decision on the matter. Rather,
the Government intends to handle the matter through administrative
guidelines. The second reading speech states:
Legal assistance in confiscation proceedings
will be made a Commonwealth priority under the Commonwealth legal
aid guidelines and priorities. Restrained assets are to be ignored
for the purposes of the means test. The bill enables legal aid
commissions to be reimbursed for the provision of such legal
assistance from the restrained assets of the person and, to the
extent of any deficiency, from the confiscated assets account. In
this way all persons the subject of proceedings under the bill will
be able to seek assistance from commissions without impacting
adversely on other legal aid priorities.
The guidelines mentioned in the second reading
speech do not appear to have been publicly released at the time of
writing. It is also unclear from the above whether legal assistance
will also be made available as a 'priority' for a person seeking to
defend a criminal charge that gives rise to confiscation
proceedings as well as the confiscation proceedings themselves.
This ambiguity needs to be addressed.
One other legal assistance issue that was
identified in the Senate Committee report was that relating to a
the situation of a person's contribution to the cost of their legal
aid. The relevant section of the report stated:
3.41 Where the restrained property is
subsequently found not to have been illegally acquired and is
returned to the owner then, the Attorney-General's Department
those assets would be taken into consideration
in determining the amount of any final contribution that person may
be required to make towards the cost of the legal assistance
provided. Depending on the outcome of the means test assessment, a
contribution covering the full cost of the grant may be
3.42 The Committee considers it unreasonable
that a person found to have acquired property lawfully and not
through criminal activity should be required to bear the costs of
proving their innocence [and] recommends that
consideration be given to amending the legal aid provisions of the
Bill to address this issue.
However, a person who is successful in having
property removed from a restraining / forfeiture order or in having
a restraining / forfeiture order revoked would not
necessarily end up bearing the burden of the 'final
contribution' mentioned in the Attorney-General's Department
Using a purely hypothetical example, say it cost
a Legal Aid Commission (LAC) $50,000 to provide a successful
defence of against an application for a forfeiture order. The LAC
would apply its means test, and, taking into account the restrained
property, might decide that the property owner must contribute
$10,000. This $10,000 would be taken from the relevant property
before it is returned to the owner, leaving the owner with
only $40,000 of property. The owner would then be able to ask the
court to make an order for costs against the DPP under new
section 323(83) for $10,000 (plus any other
costs, eg travel costs to attend hearings to give evidence). They
would also be able to make a claim against any new section
21 undertaking that is in place for damages that might
have occurred due to the restraint of the property, eg business
- This provided for, upon conviction of an offence, for the
forfeiture of money used in connection with, or resulting from,
- See Division 3 of Part XIII and in particular section 234D
which establishes a presumption that the narcotics in question were
illegally imported if the court is satisfied that they are
'reasonably suspected' of being so imported.
- Confiscation that counts: a review of the Proceeds of
Crimes Act 1987, Australian Law Reform Commission 1999 at
- Although for the Victorian Act the non conviction based
elements of the Act only apply to certain narcotics activity.
- Op cit, at paragraph 1.5.
- 'ALRC urges reform to proceeds of crime laws' ALRC Media
release Wednesday 16 June 1999
- Although the 1987 POCA is not repealed by the Bill.
- Indictable offences are offences normally heard before a judge
and jury, as opposed to a magistrate.
- This would generally be a State district or county court.
However, whether the application relates to an offence under which
a person has been convicted by a particular magistrate, that
magistrate may also hear an application and make orders. Under the
equivalent provision in the 1987 POC (section 43), applications
must be made to a Supreme Court.
- This is because questions of fact are to be decided on the
balance of probabilities: new subsection 317(2).
- The discretion of the court to refuse to make a restraining
order on this ground applies to any of the orders covered by
new sections 17-20.
- However, by way of illustrating the concept of public interest
in associated context, a excerpt from the prosecution policy of the
of the Office of the Director of Public Prosecutions is at Appendix
- Other legislation, such as subsection 16(1) of the Victorian
Confiscation Act 1997 also has this 48 hour requirement.
- See footnote 6 above.
- A terrorism offence is defined as an offence against (proposed)
Part 5-3 of the Criminal Code. The proposed Part 5-3 is contained
in Security Legislation Amendment (Terrorism) Bill 2002 [No. 2]. An
analysis of the Bill is in the relevant Bills Digest at http://www.aph.gov.au/library/pubs/bd/2001-02/02bd126.pdf.
Note that the Senate Legal and Constitutional committee report into
the Bill has recommended changes to proposed Part 5-3: see
especially Chapter 3 of the committee report, recommendations 2 and
- Note that a serious offence would fall within the definition of
an indictable offence.
- This means an offence against the law of another country where
the same conduct, had it occurred in Australia, would also
constitute an offence in Australia punishable by at least 12 months
- This person does not have to be identified.
- Includes 'reasonable' living expenses of the person or their
dependents or 'reasonable' business expenses.
- This rule applies to all persons, including persons not
suspected of being party to any offence.
- Note that this would mean that property could not be
used to fight restraining and forfeiture proceedings per se as
these are not criminal proceedings.
- An interest is defined in new section
- Neither POCA 1987 nor the Bill states whether, before allowing
a person to given evidence, a court must be satisfied that a claim
is reasonable one, but presumably this is the case.
- The Explanatory Memorandum to the Bill comments that 'an
application would usually be made ex parte where there is
a risk that the assets would be dissipated, or that an
investigation may be jeopardised by the provision of affidavit
material': at p. 12.
- Proceeds are defined in new section 329. Note
that property is considered to be proceeds even if, for example, it
is only partly acquired with the proceeds of an offence. For
instance, if smuggled narcotics were sold in Australia for $50,000
and that sum was used with $150,000 of 'legitimate' funds to
purchase a $200,000 house, the entire house would be considered to
be proceeds with the Bill. See new section 330 for
full details. There is no direct equivalent in POCA 1987 so this
may represent an expansion.
- That is, property used, or intended to be used, in connection
with the relevant offence: see new section 329.
- Assuming of course the property has not already been forfeited,
either by court order or through 'automatic' forfeiture for serious
- This is not defined in the Bill.
- Recklessness with respect to a circumstance is defined in the
Criminal Code as 'he or she is aware of a substantial risk that the
[circumstance] will occur and having regard to the circumstances
known to him or her, it is unjustifiable to take the risk'.
- Reckless is the default (ie 'standard') fault element under the
Criminal Code 1995 in relation to a physical circumstance
- in the case of paragraph 37(1)(b), the fact the property is
covered by a restraining order.
- Under the Criminal Code, a reasonable mistake of fact is a
defence to a strict liability charge.
- See evidence presented on 27 March in public hearings to the
- At page 47.
- Confirmation orders are discussed later in this Digest.
- Certain offences relating to the transfer of large sums of
money, opening bank accounts under false names under the
Transaction Reports Act 1988 may be excluded from new
section 45 depending on the circumstances.
- However, there is no 6-year time limit on terrorism offences.
- Under new section 54, where evidence is given
that particular property was in a person s possession at the time
of, or immediately after, the commission of an offence and no
contrary evidence is given that tends to show the property was not
used in, or in connection with, the offence, the court must presume
that the property was so used, and thus is an instrument of the
offence. If such contrary evidence is given, the court must be
satisfied that the property was used or intended to be used in, or
in connection with, the commission of the offence before it can
make a forfeiture order on the basis that the property is an
instrument of the offence.
- Certain offences relating to the transfer of large sums of
money, opening bank accounts under false names under the
Transaction Reports Act 1988 may excluded from new
section 45 depending on the circumstances.
- At p. 25.
- Under new section 57, the court values the
property, but the Bill does not seem to require the buyback price
to be at that value.
- Note that the DPP does not require court leave to apply for a
different type of forfeiture order (for example a new
section 48 order if the order application was for a
new section 48 order).
- There are also notice requirements where applications are
amended to include additional property: new section
- The Official Trustee in Bankruptcy is the Commonwealth entity
that handles and if necessary disposes of restrained and / or
- There are restrictions on applying for an exclusion order.
Under new section 74, if the person had notice of
forfeiture application but did not appear at the hearing, or where
they did appear (and thus their evidence taken into account), or
where 6 months have elapsed from the making of the forfeiture
orders, persons require the leave of the court to apply.
- Unlawful activity is defined to include State, Northern
Territory and ACT indictable offences, as well as indictable
offences against the laws of the Commonwealth, external Territories
and foreign countries. The property must also not be an instrument
of any terrorism offence.
- In theory, if in the trial (in the case of an acquittal) or
quashing (through an appeal process) demonstrates that the evidence
does not even support a balance of probabilities verdict, we have
an interesting situation of a court implicitly saying that
new section 47 or 49 forfeiture order should not
have been made had all facts been known at the time. In reality,
however, a criminal court would only be concerned whether or not
the evidence met the beyond reasonable standard rather than making
any comment about the balance of probabilities standard.
- There are various procedural elements regarding such an
application, including giving affected persons notice of the
application and the right to be hears on an application.
- If the court confirms the forfeiture order on the ground that
it could have made a new section 47 order, the
forfeiture order remains in force only to the extent that it covers
the proceeds of a specified offence.
- New section 92 does not apply in situations
where a person who deemed to have been convicted because they
absconded within the meaning of paragraph
- The order does not have to be made pursuant to the actual
offence that a person is subsequently convicted of: it is enough if
it is made pursuant to a 'related offence'. The Explanatory
Memorandum comments: 'This clause ensures that where a restraining
order is made in the early stages of proceedings against a person
in order to prevent dissipation of assets a new order does not have
to be made if the offence with which the person is ultimately
charged, or the charges which are ultimately proceeded with against
the person, differ from those on which the restraining order was
based, provided they relate to the same criminal activities or
- See new Part 4-3.
- Providing there are no other remaining relevant convictions.
- There are various procedural elements regarding such an
application, including giving affected persons notice of the
application and the right to be heard on an application.
- However, if forfeiture is confirmed on new section
49 grounds, the confirmation only applies to any property
that is the proceeds of the offence in question: new
- Except for terrorism offences, the offence must have occurred
within 6 years before the application being made
- Again, the time limit does not apply for terrorism offences.
- For example, if the person had property worth $1million just
before the offence, which then grew to $5 million shortly after the
offence, but then dwindled to $2 million at the time of PPO
application, the value of the benefits potentially subject to a PPO
would be $4 million, not $1 million.
- The burden of proof lies on the person who is subject to the
- Or a foreign indictable offence. In such cases, the proceeds
must have been derived in Australia
- Or the notoriety of an accomplice.
- The Explanatory Memorandum suggests public interest issues
could include whether the product had any rehabilitative or
- Including a de facto spouse.
- At p. 64.
- Note that subsection 13.3(3) of the Criminal Code says in part:
'A defendant who wishes to rely on any exception, exemption,
excuse, qualification or justification provided by the law creating
an offence bears an evidential burden in relation to that matter'.
- They can also be used to bring prosecutions for giving false
- See subsection 99(2) of the Confiscation Act 1997 and
section 61 of the Criminal Property Confiscation Act 2000
- The POCA 1987 requires a Supreme Court Judge to decide
production order applications.
- At p. 69.
- At p. 72.
- The court must have jurisdiction to deal with criminal matters
- That is, proceeds of an indictable offence or the instrument of
an indictable offence.
- Body cavity searches for narcotic offences are dealt with in
the Customs Act 1901.
- Not 3H as stated in the Explanatory Memorandum.
- The occupier of the premises from whence the thing was moved
must be notified and is entitled to be heard before the magistrate
to oppose the application.
- Including where programs or data is corrupted.
- At p. 87.
- New subparagraphs 58(b)(ii) and
118(b)(ii) require the court to apply the criminal
standard because those paragraphs deal with whether a jury could
have lawfully found a person guilty of a criminal offence.
- In this case, judicial and administrative-type powers.
- Op cit paragraph 3.16.
- Assuming that property is not under the effective
control of the suspect.
- See recommendation 66 of the report.
- Under new section 323, costs are not confined
to so-called 'party/party' costs and 'solicitor/client' costs but
cover all costs incurred by the person in connection with
proceedings under the Act. However, even if court awards costs, it
is up the court to decide whether to grant all costs or only a part
The Committee recommends that
consideration be given to amending the legal aid provisions of the
Bill to address this issue.
The Committee recommends that
the Proceeds of Crime Bill 2002 and the Proceeds of Crime
(Consequential Amendments and Transitional Provisions) Bill 2002 be
passed, subject to advice on the status of the review of the
Telecommunications (Interception) Act 1979 and adequate
attention being given to the Committee's recommendation on legal
Additional recommendations from ALP
Opposition senators recommend
that clause 47 of the Bill should be amended to use the words of
the NSW Criminal Assets Recovery Act in its equivalent
provision. The clause would read as follows:
47(1)(c) it is more probable than not that:
(i) a person engaged in conduct constituting one
or more serious offences; and
(ii) for each suspected offence that is not a
terrorism offence the offence was committed within the 6 years
preceding the application, or since the application was made.
Opposition senators recommend
that clause 42 of the Bill be amended to allow a court to consider
an extension under certain circumstances. The wording of such an
amendment may be as follows:
42 (1) A person who was not notified of the
application for a restraining order may, within 28 days after being
notified of the order, apply to the court to revoke the order,
unless granted an extension by the court on grounds being
Opposition senators recommend
that in order to provide certainty, s.154 of the Bill should be
amended by removing the word 'may' and inserting the word 'should'
as initially recommended by the ALRC.
Opposition senators recommend
that the Bill be amended to insert a provision for formal review of
the operation of the legislation within 3 years from commencement
of the Bill. This provision should make particular reference to the
operation of the provisions relating to the removal of derivative
use immunity and the guidelines relating to legal assistance and
examinations by the Director of Public Prosecutions.
(2.10) Factors which may arise for consideration
in determining whether the public interest requires a prosecution
(a) the seriousness or, conversely, the
triviality of the alleged offence or that it is of a 'technical'
(b) any mitigating or aggravating
(c) the youth, age, intelligence, physical
health, mental health or special infirmity of the alleged offender,
a witness or victim;
(d) the alleged offender's antecedents and
(e) the staleness of the alleged offence;
(f) the degree of culpability of the alleged
offender in connection with the offence;
(g) the effect on public order and morale;
(h) the obsolescence or obscurity of the
(i) whether the prosecution would be perceived
as counter-productive, for example, by bringing the law into
(j) the availability and efficacy of any
alternatives to prosecution;
(k) the prevalence of the alleged offence and
the need for deterrence, both personal and general;
(l) whether the consequences of any resulting
conviction would be unduly harsh and oppressive;
(m) whether the alleged offence is of
considerable public concern;
(n) any entitlement of the Commonwealth or other
person or body to criminal compensation, reparation or forfeiture
if prosecution action is taken;
(o) the attitude of the victim of the alleged
offence to a prosecution;
(p) the likely length and expense of a
(q) whether the alleged offender is willing to
co-operate in the investigation or prosecution of others, or the
extent to which the alleged offender has done so;
(r) the likely outcome in the event of a finding
of guilt having regard to the sentencing options available to the
(s) whether the alleged offence is triable only
on indictment; and
(t) the necessity to maintain public confidence
in such basic institutions as the Parliament and the courts.
The applicability of and weight to be given to
these and other factors will depend on the particular circumstances
of each case.
26 June 2002
Bills Digest Service
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