Part 7Administration

Part 7—Administration Division 1—Powers and duties of the Administrator 190—Appointment of Administrator (1) The Minister may appoint a person, or a person for the time being holding or acting in a particular office or position, as the Administrator under this Act. (2) An appointment under this section may be subject to such conditions as the Minister thinks fit. 191—Property to which the Administrator's powers and duties under this Division apply (1) The Administrator must perform a duty imposed by, and may exercise a power conferred by, this Division in relation to controlled property. (2) However, the Administrator must perform a duty imposed, and may exercise a power conferred, by Subdivision 4 in relation to property that is the subject of a restraining order, whether or not the property is controlled property. Subdivision 2—Obtaining information about controlled property 192—Access to documents (1) The Administrator, or another person authorised in writing by the Administrator to exercise powers under this section, for the purpose of— (a) ensuring that all controlled property is under the Administrator's custody and control; or (b) ensuring the effective exercise of the Administrator's powers or the performance of the Administrator's duties, under this Division in relation to the controlled property, may, by notice in writing, require— (c) the suspect in relation to a restraining order covering the controlled property; or (d) any other person entitled to, or claiming an interest in, the controlled property, to produce specified documents in the possession of the person— (e) to a specified person; and (f) at a specified place, and within a specified period or at a specified time on a specified day, being a place, and a period or a time and day, that are reasonable in the circumstances. (2) If documents are produced under subsection (1), the Administrator, or other person making the requirement, or the person to whom the documents are produced may— (a) make copies of, or take extracts from, the documents; and (b) require— (i) the person required to produce the documents; or (ii) any other person who was a party to the compilation of the documents, to explain any matter relating to the documents, or the compilation of the documents. (3) If documents required under subsection (1) to be produced are not produced, the Administrator, or other person making the requirement, or the person to whom the documents are required to be produced, may require the person required to produce the documents to state— (a) where the documents may be found; and (b) who last had possession, custody or control of the documents and where that person may be found. (4) A person who refuses or fails to comply with a requirement under this section is guilty of an offence. (5) A person who obstructs or hinders a person in the exercise of a power under this section is guilty of an offence. (6) The production of documents under this section does not prejudice a lien that a person has on the documents. 193—Suspect to assist Administrator (1) The suspect in relation to a restraining order covering controlled property must not, unless excused by the Administrator or with a reasonable excuse, refuse or fail to— (a) produce to the Administrator such documents as the Administrator may require (including documents of an associated entity (within the meaning of the Bankruptcy Act 1966 of the Commonwealth) of the person) that— (i) are in the person's possession; and (ii) relate to any of the person's affairs; and (b) attend before the Administrator at such a time and place as the Administrator may reasonably require; and (c) give to the Administrator such information about any of the person's conduct and examinable affairs as the Administrator may require; and (d) give to the Administrator such assistance as the Administrator may reasonably require, in connection with the exercise of the Administrator's powers or the performance of the Administrator's duties under this Division in relation to the controlled property. (2) A person who obstructs or hinders the Administrator in the exercise of a power under subsection (1) is guilty of an offence. 194—Power to obtain information and evidence (1) The Administrator may, by notice in writing, require a person— (a) to give to the Administrator such information as the Administrator may require; and (b) to attend before the Administrator, or a person authorised in writing by the Administrator, and— (i) give evidence; and (ii) produce all documents in the possession of the person notified, relating to the exercise of the Administrator's powers or the performance of the Administrator's duties under this Division. (2) The Administrator, or a person authorised in writing by the Administrator, may require the information or evidence to be given on oath (and for that purpose may administer an oath) and either orally or in writing. (3) A person who refuses or fails to comply with a requirement under this section is guilty of an offence. 195—Self-incrimination (1) If a natural person is required to give information, answer a question or produce, or provide a copy of, a document or record under section 194 and the information, answer, document or record would tend to incriminate the person or make the person liable to a penalty (including in the nature of a confiscation order under this Act), the person must nevertheless give the information, answer the question or produce, or provide a copy of, the document or record, but the information, answer, document or record will not be admissible in evidence against the person in proceedings for an offence other than proceedings in respect of the making of a false or misleading statement or declaration. (2) To avoid doubt, an answer given or document produced under section 194 is admissible in proceedings— 196—Failure of person to attend A person who, being required under section 194(1)(b) to attend before the Administrator or a person authorised in writing by the Administrator, fails to attend as required is guilty of an offence. 197—Refusal to be sworn or give evidence etc A person who, being required under section 194(1)(b) to attend before the Administrator or a person authorised in writing by the Administrator— (a) attends before the Administrator or a person authorised in writing by the Administrator; and (b) refuses or fails— (i) to be sworn; or (ii) to answer a question that the person is required to answer by the Administrator or a person authorised under that paragraph, as the case may require; or (iii) to produce any documents that the person is required to produce, Subdivision 3—Dealings relating to controlled property 198—Preserving controlled property The Administrator may do anything that is reasonably necessary for the purpose of preserving the controlled property, including— (a) becoming a party to any civil proceedings affecting the property; and (b) ensuring that the property is insured; and (c) realising or otherwise dealing with any of the property that is securities or investments; and (d) if any of the property is a business— (i) employing, or terminating the employment of, persons in the business; or (ii) doing anything necessary or convenient to carry on the business on a sound commercial basis. 199—Rights attaching to shares The Administrator may exercise the rights attaching to any of the controlled property that is shares— (a) as if the Administrator were the registered holder of the shares; and (b) to the exclusion of the registered holder. 200—Destroying or disposing of property (1) The Administrator may destroy controlled property if— (a) it is in the public interest to do so; or (b) it is required for the health or safety of the public. (2) The Administrator may dispose of controlled property, by sale or other means— (a) with the agreement of all parties with an interest in the property; or (b) if the property is likely to lose value in the opinion of the Administrator; or (c) if, in the Administrator's opinion, the cost of controlling the property until the Administrator finally deals with it is likely to exceed, or represent a significant proportion of, the value of the property when it is finally dealt with. (3) However, before destroying or disposing of property under this section, the Administrator must (not less than 14 days before the proposed destruction or sale) give written notice of the proposed destruction or disposal to— (a) the owner of the controlled property; and (b) any other person whom the Administrator has reason to believe may have an interest in the property. 201—Objection to proposed destruction or disposal A person who has been notified under section 200(3) of a proposed destruction or sale under that section may object in writing to the Administrator within 14 days of receiving the notice. 202—Procedure if person objects to proposed destruction or disposal (1) If an objection to a proposed destruction or disposal of controlled property has been made, the Administrator may apply to the court that made the restraining order covering the controlled property for an order that the Administrator may destroy or dispose of the property. (2) The court may make an order to destroy the controlled property if— (a) it is in the public interest to do so; or (b) it is required for the health or safety of the public. (3) In determining whether it is in the public interest to destroy the controlled property, the court may take into account— (a) the use to which the property would be put if it were sold; and (b) whether the cost of restoring the property to a saleable condition would exceed its realisable value; and (c) whether the cost of sale would exceed its realisable value; and (d) whether the sale of the property would otherwise be legal; and (e) any other matter the court thinks fit. (4) The court may make an order to dispose of the controlled property if, in the court's opinion— (a) the property is likely to lose value; or (b) the cost of controlling the property until it is finally dealt with by the Administrator is likely to exceed, or represent a significant proportion of, the value of the property when it is finally dealt with. (5) The court may also order— (a) that a specified person bear the costs of controlling the controlled property until it is finally dealt with by the Administrator; or (b) that a specified person bear the costs of an objection to a proposed destruction or disposal of the property. 203—Proceeds from sale of property Amounts realised from a sale of controlled property under section 200 are taken to be covered by the restraining order that covered the property and must, for the purposes of this Act, be treated as if they— (a) if the restraining order covered the property on the basis that the property was proceeds of a serious offence to which the order relates—continue to be proceeds of the offence; or (b) if the restraining order covered the property on the basis that the property was an instrument of a serious offence to which the order relates—continue to be an instrument of the offence; or (c) if the restraining order covered the property on the basis that the property was owned by or was subject to the effective control of a particular person—continue to be property owned by or subject to the effective control of that person. Subdivision 4—Discharging pecuniary penalty orders and literary proceeds orders 204—Direction by a court to the Administrator (1) A court that makes a pecuniary penalty order or literary proceeds order may, in the order, direct the Administrator to pay the Crown, out of property that is subject to a restraining order, an amount equal to— if— (c) the order is made against a person in relation to one or more serious offences; and (d) the restraining order has already been made against that person in relation to the serious offence or one or more of the serious offences, or in relation to one or more related offences. (2) A court that makes a restraining order may, in the order, direct the Administrator to pay the Crown, out of property that is subject to a restraining order, an amount equal to— if— (c) the pecuniary penalty order or literary proceeds order has been made against a person in relation to one or more serious offences; and (d) the restraining order is subsequently made— (i) against the person in relation to the serious offence or one or more of the serious offences; or (ii) against property of another person in relation to which an order is in force under section 123(1). (3) A court that made a pecuniary penalty order, a literary proceeds order or a restraining order may, on the application of the DPP, direct the Administrator to pay the Crown, out of property that is subject to a restraining order, an amount equal to— if— (c) the pecuniary penalty order or literary proceeds order has been made against a person in relation to one or more serious offences; and (d) the restraining order has been made— (i) against the person in relation to the serious offence or one or more of the serious offences; or (ii) against property of another person in relation to which an order is in force under section 123(1). (4) For the purposes of enabling the Administrator to comply with a direction given by a court under this section, a court may, in the order in which the direction is given or by a subsequent order— (a) direct the Administrator to sell or otherwise dispose of such of the property that is subject to the restraining order as the court specifies; and (b) appoint an officer of the court or any other person— (i) to execute any deed or instrument in the name of a person who owns or has an interest in the property; and (ii) to do any act or thing necessary to give validity and operation to the deed or instrument. (5) The execution of a deed or instrument by a person appointed by an order under subsection (4) has the same force and validity as if the deed or instrument had been executed by the person who owned or had the interest in the property. 205—Administrator not to carry out directions during appeal periods (1) If the Administrator is given a direction under section 204 in relation to property, the Administrator must not take any action to comply with the direction until— (a) if the person has not been convicted of the serious offence, or any of the serious offences, to which the pecuniary penalty order or literary proceeds order relates— (i) if an appeal has not been lodged within the period provided for lodging an appeal against the pecuniary penalty order or literary proceeds order to which the direction relates—the end of that period; or (ii) if an appeal against the pecuniary penalty order or literary proceeds order has been lodged—when the appeal lapses or is finally determined; or (b) if the person is convicted of the serious offence, or any of the serious offences, to which the pecuniary penalty order or literary proceeds order relates— (i) if an appeal has not been lodged within the period provided for lodging an appeal against the conviction or convictions to which the direction relates—the end of that period; or (ii) if an appeal against the conviction or convictions has been lodged—when the appeal lapses or is finally determined; or (iii) the appeal period under paragraph (a), whichever ends last. (2) For the purposes of subsection (1)(b)— (a) if the person is to be taken to have been convicted of a serious offence because of section 5(1)(b)—references to lodging of an appeal against the conviction are references to lodging of an appeal against the finding that the person is guilty of the offence; and (b) if the person is to be taken to have been convicted of a serious offence because of section 5(1)(c)—references to lodging of an appeal against the conviction are references to lodging of an appeal against the person's conviction of the other offence referred to in that paragraph. 206—Discharge of pecuniary penalty orders and literary proceeds orders If the Administrator pays the Crown, in accordance with a direction under this Subdivision, an amount of money equal to— (a) the penalty amount under a pecuniary penalty order made against a person; or (b) the amount to be paid under a literary proceeds order made against a person, that money must be dealt with as required by section 209 and the person's liability under a pecuniary penalty order or literary proceeds order (as the case requires) is discharged. Division 2—Legal assistance 207—Payments to Legal Services Commission for representing suspects and other persons (1) The Administrator may pay to the Legal Services Commission, out of the property of a suspect that is covered by a restraining order, legal assistance costs— (a) for representing the suspect in criminal proceedings; and (b) for representing the suspect in proceedings under this Act. (2) The Administrator may pay to the Legal Services Commission, out of the property of a person other than the suspect that is covered by a restraining order, legal assistance costs for representing the person in proceedings under this Act. (3) The Administrator may only pay legal assistance costs referred to in this section with the authority of the court under subsection (4). (4) If the court is satisfied, on application by the Legal Services Commission, that it is unlikely that anyone other than a particular assisted person could, assuming that property subject to a restraining order were not forfeited, establish a lawful claim to the property (or a particular part of, or interest in, the property)— (a) the court must authorise the application of the property (or the relevant part of, or interest in, the property) towards payment of legal assistance costs; and (b) may make any other order that may be necessary or appropriate in the circumstances (such as an order for partition of the property or an order for its sale or conversion into money). (5) The Legal Services Commission may only make an application under subsection (4) for an order authorising the application of restrained property towards payment of legal assistance costs if satisfied that the assisted person has no other source of funds (within or outside the State) to which the Commission could reasonably have recourse for the legal assistance costs. (6) Before the court authorises the application of property subject to a restraining order towards payment of legal assistance costs, the court must allow the Attorney-General an opportunity to appear and be heard on the matter. 208—Disclosure of information to Legal Services Commission The DPP or the Administrator may, for the purpose of assisting the Legal Services Commission to determine whether a person should receive legal assistance under this Division, disclose to the Commission information obtained under this Act that is relevant to making that determination. Division 3—Credits to funds 209—Credits to Victims of Crime Fund (1) Subject to Division 3A, section 209A and any direction of a court under this Act— (a) any proceeds of confiscated assets; and (b) any money deriving from the enforcement in the State of an order under a corresponding law, must be applied towards the costs of administering this Act and the balance must be paid into the Victims of Crime Fund. (2) Any money— (a) paid to the Crown under the equitable sharing program, being the Crown's share of proceeds resulting from a breach of the criminal law of a State or Territory; or (b) received by the Commonwealth from a foreign country within the meaning of the Mutual Assistance Act under a treaty or arrangement providing for mutual assistance in criminal matters and paid by the Commonwealth to the Crown, must be paid into the Victims of Crime Fund. (3) The purposes for which money may be applied from the Victims of Crime Fund include payments to the Commonwealth or to another State or a Territory of the Commonwealth, under the equitable sharing program. (4) In this section— costs of administering this Act includes the payment of any money in accordance with section 57; equitable sharing program means an arrangement under which— (a) the Crown shares with the Commonwealth or a reciprocating State the proceeds resulting from a breach of the criminal law of the State if the Commonwealth or the reciprocating State have made a significant contribution to the recovery of the proceeds; or (b) the Commonwealth or a reciprocating State shares with the Crown the proceeds of any unlawful activity if the Crown has made a significant contribution to the recovery of those proceeds, but does not include the national cooperative scheme (within the meaning of section 209B(1)); proceeds of confiscated assets means— (a) the amount referred to in section 72(1) or 73(f); (b) the amount referred to in section 81(1)(c) or 82(f); (c) the amounts referred to in section 93(2); (d) an amount payable to the Crown under a confiscation order; (e) the amount referred to in section 206. 209A—Credits to Justice Rehabilitation Fund (1) The Justice Rehabilitation Fund (the Fund) is established. (2) The Fund must be kept as directed by the Attorney-General. (3) The Fund is to consist of the following money: (a) money paid into the Fund under subsection (4); (b) any money appropriated by Parliament for the purposes of the Fund; (c) any money paid into the Fund at the direction or with the approval of the Attorney-General; (d) any income from investment of money belonging to the Fund; (e) any money paid into the Fund under any other Act. (4) Subject to Division 3A and any direction of a court under this Act, any proceeds of confiscated assets of a prescribed drug offender must be applied towards the costs of administering this Act and the balance must be paid into the Fund. (5) The Fund may be applied by the Attorney‑General (without further appropriation than this subsection) in the absolute discretion of the Attorney-General as additional government funding for the provision of programs and facilities, for the benefit of offenders, victims and other persons, that will further crime prevention and rehabilitation strategies. (6) Nothing in subsection (5) authorises the application of monies from the Fund— (a) to a law enforcement authority of the State for criminal investigation or other law enforcement purposes (whether civil or criminal); or (b) for a purpose that the Attorney‑General has determined could be the subject of a payment from the Victims of Crime Fund under section 31 of the Victims of Crime Act 2001. (7) The Attorney‑General may invest any of the money belonging to the Fund that is not immediately required for the purposes of the Fund in such manner as the Attorney-General thinks fit.