Division 3—Recovery of pecuniary penalties for dealings in narcotic goods
243A Interpretation
(1) In this Division, unless the contrary intention appears:
benefit includes service or advantage.
cheque includes a bill, promissory note or other security for money.
Court means the Federal Court of Australia.
dealing, in relation to property of a person, includes:
(a) if a debt is owed to that person—making a payment to any person in reduction of the amount of the debt;
(b) removing the property from Australia; and
(c) receiving or making a gift of the property.
effective control, in relation to property, or an interest in property, has the meaning given by section 243AB.
interest, in relation to property, means:
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege in connection with the property;
whether present or future and whether vested or contingent.
moneys means moneys in the form of cash.
Official Trustee means the Official Trustee in Bankruptcy.
pecuniary penalty means a pecuniary penalty referred to in section 243B.
penalty amount, in relation to an order under section 243B against a person, means the amount that the person is liable to pay the Commonwealth under the order.
petition means a petition under the Bankruptcy Act 1966.
police officer means:
(a) a member or special member of the Australian Federal Police; or
(b) a member of the police force of a State or Territory.
property means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible and includes an interest in any such real or personal property.
restraining order means an order made under paragraph 243E(2)(c).
trustee in bankruptcy means:
(a) in relation to a bankruptcy—the trustee of the estate of the bankrupt; or
(b) in relation to a composition or scheme of arrangement under Division 6 of Part IV of the Bankruptcy Act 1966—the trustee of the composition or scheme of arrangement; or
(c) in relation to a personal insolvency agreement under Part X of the Bankruptcy Act 1966—the trustee of the agreement; or
(d) in relation to the estate of a deceased person in respect of which an order has been made under Part XI of the Bankruptcy Act 1966—the trustee of the estate.
(2) Where a person who has obtained possession or control of a cheque, or was paid moneys by a cheque, in any of the circumstances set out in subsection (3), receives, in respect of the cheque, moneys in the form of cash, the moneys so received shall, for the purposes of this Division, be deemed to be moneys that came into his or her possession or under his or her control, or were paid to him or her, in the circumstances in which he or she obtained possession or control of the cheque, or was paid the moneys by the cheque.
(3) For the purposes of this Division, a person shall be taken to engage in a prescribed narcotics dealing if:
(a) he or she sells or otherwise deals in, or agrees to sell or otherwise deal in, narcotic goods imported into Australia in contravention of this Act; or
(b) he or she imports, or agrees to import, narcotic goods into Australia in contravention of this Act; or
(c) he or she exports, or agrees to export, narcotic goods from Australia in contravention of this Act; or
(d) he or she keeps, or agrees to keep, in his or her possession narcotic goods imported into Australia in contravention of this Act; or
(e) he or she conspires with another person or other persons to import any narcotic goods into Australia, or to export any narcotic goods from Australia, in contravention of this Act; or
(f) he or she aids, abets, counsels or procures, or is in any way knowingly concerned in, the sale of, or other dealing in, narcotic goods imported into Australia in contravention of this Act, the importation of narcotic goods into Australia, or the exportation of narcotic goods from Australia, in contravention of this Act, or the keeping in the possession of any person of narcotic goods imported into Australia in contravention of this Act.
Note: Goods are imported or exported in contravention of this Act if they are imported or exported in breach of a prohibition under this Act: see subsection 4(4A).
(4) A reference in this Division to a benefit derived by a person includes a reference to:
(a) a benefit derived, directly or indirectly, by the person; and
(b) a benefit derived, directly or indirectly, by another person at the request or direction of the first person.
(4A) A reference in this Division to the property of a person includes a reference to property in respect of which the person has a beneficial interest.
(5) Where, upon application being made to the Court under subsection 243E(1) and supported by an affidavit made by a police officer or an officer of Customs stating that he or she believes that any property is the property of a person, the Court makes a restraining order against that property, for the purposes of this Division, the property shall, while that order applies to the property, be deemed to be the property of that person.
(6) A reference in this Division to a proceeding for the recovery of a pecuniary penalty shall be read as a reference to a proceeding instituted under section 243B for an order under subsection (1) of that section.
243AB Effective control of property
(1) Property, or an interest in property, may be subject to the effective control of a person within the meaning of this Division whether or not the person has:
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege in connection with the property.
(2) Without limiting the generality of any other provision of this Division, in determining:
(a) whether or not property, or an interest in property, is subject to the effective control of a person; or
(b) whether or not there are reasonable grounds to believe that property, or an interest in property, is subject to the effective control of a person;
regard may be had to:
(c) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property;
(d) a trust that has a relationship to the property; and
(e) family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (c) or trusts of the kind referred to in paragraph (d), and other persons.
(3) For the purposes of paragraph (2)(e), family relationships are taken to include (without limitation) relationships between persons covered by section 4AAA.
243B Pecuniary penalties
(1) Subject to subsection (7), the Minister, the Commissioner of Police, the Comptroller‑General of Customs or the Director of Public Prosecutions may institute a proceeding in the Court, on behalf of the Commonwealth, for an order that a person pay a pecuniary penalty to the Commonwealth in respect of:
(a) a particular prescribed narcotics dealing engaged in by him or her; or
(b) prescribed narcotics dealings engaged in by him or her during a particular period.
(2) If, in a proceeding instituted under subsection (1), the Court is satisfied that the person in relation to whom the order is sought:
(a) has engaged in a particular prescribed narcotics dealing; or
(b) has, during a particular period, engaged in prescribed narcotics dealings;
the Court shall assess, in accordance with section 243C, the value of the benefits derived by the person by reason of his or her having engaged in that dealing, or in prescribed narcotics dealings during that period, as the case may be, and order the person to pay to the Commonwealth a pecuniary penalty equal to the value as so assessed.
(3) The Court may order a person to pay a pecuniary penalty under subsection (2) in relation to a particular prescribed narcotics dealing, or prescribed narcotics dealings during a particular period, whether or not the person has been convicted of an offence, or proceedings have been instituted in respect of any offence, committed in relation to that dealing or any of those dealings and whether or not any moneys or other goods have been seized under section 229A in relation to that dealing or any of those dealings.
(4) An amount payable by a person to the Commonwealth in accordance with an order made under subsection (2) shall, for all purposes, be deemed to be a civil debt due by the person to the Commonwealth.
(5) An order made by the Court under subsection (2) may be enforced as if it were an order made by the Court in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.
(6) This section applies to and in relation to moneys that come, or other property that comes, into the possession or under the control of a person either within or outside Australia, and to benefits that are provided for a person either within or outside Australia.
(7) A proceeding under subsection (1) may be commenced:
(a) if the proceeding relates to a particular prescribed narcotics dealing engaged in by a person after the commencement of this section—within 6 years after that dealing took place; or
(b) if the proceeding relates to prescribed narcotics dealings during a particular period, being a period that commenced after the commencement of this section—within 6 years after the end of that period.
243C Assessment of pecuniary penalty
(1) In this section, a reference to the defendant in relation to a proceeding under section 243B shall be read as a reference to a person against whom an order is sought in that proceeding.
(2) In a proceeding under section 243B, the value of the benefits derived by the defendant by reason of his or her having engaged in a particular prescribed narcotics dealing, or in prescribed narcotics dealings during a particular period shall be assessed by the Court having regard to the evidence before the Court concerning all or any of the following matters:
(a) the moneys, or the value of the property other than moneys, that came into the possession or under the control of:
(i) the defendant; or
(ii) another person at the request or by the direction of the defendant;
by reason of the defendant’s having engaged in that dealing or in prescribed narcotics dealings during that period;
(b) the value of any benefit, other than a benefit of the kind referred to in paragraph (a) that was provided for:
(i) the defendant; or
(ii) another person at the request or by the direction of the defendant;
by reason of the defendant’s having engaged in that dealing or in prescribed narcotics dealings during that period;
(c) in the case of a prescribed narcotics dealing that consisted of selling or otherwise dealing in narcotic goods—the market value, at the time of the dealing, of similar or substantially similar narcotic goods;
(d) in the case of a prescribed narcotics dealing that consisted of the doing of any act or thing other than selling or otherwise dealing in narcotic goods—the amount that was, or the range of amounts that were, at the time the dealing occurred, ordinarily paid for the doing of a similar or substantially similar act or thing;
(e) the value of the defendant’s property before, during and after he or she engaged in that dealing, or before, during and after that period, as the case may be;
(f) the defendant’s income and expenditure before, during and after he or she engaged in that dealing, or before, during and after that period, as the case may be.
(3) Where evidence is given in a proceeding under section 243B that the value of the defendant’s property during or after the defendant engaged in a particular prescribed narcotics dealing, or during, or after the end of, a particular period during which he or she engaged in prescribed narcotics dealings, exceeded the value of the defendant’s property before he or she engaged in that dealing, or before the commencement of that period, then, for the purposes of subsection (2) of that section, the Court shall, subject to subsection (4), treat the value of benefits derived by the defendant by reason of his or her having engaged in that dealing or in prescribed narcotics dealings during that period as being not less than the amount of the greatest excess.
(4) Where, after evidence has been given in a proceeding under section 243B that the value of the defendant’s property during or after the defendant engaged in a particular prescribed narcotics dealing, or during, or after the end of, a particular period, exceeded the value of the defendant’s property before he or she engaged in that dealing, or before the commencement of that period, the defendant satisfies the Court that the whole or a part of the excess was due to certain causes, being causes unrelated to his or her having engaged in that prescribed narcotics dealing, or in prescribed narcotics dealings during that period, as the case may be:
(a) if the defendant so satisfies the Court in respect of the whole of the excess—subsection (3) does not apply to the excess; or
(b) if the defendant so satisfies the Court in respect of a part of the excess—subsection (3) applies to and in relation to the excess as if it were reduced by the amount of that part.
(5) In a proceeding under section 243B, a police officer or an officer of Customs who is experienced in the investigation of narcotics offences may testify:
(a) with respect to the amount that, to the best of his or her information, knowledge and belief, was the market value of narcotic goods at a particular time or during a particular period; or
(b) with respect to the amount, or the range of amounts, that, to the best of his or her information, knowledge and belief, was the amount, or range of amounts, ordinarily paid at a particular time or during a particular period for the doing of an act or thing (not being the selling or other dealing in narcotic goods) comprising a prescribed narcotics dealing;
notwithstanding any rule of law or practice relating to hearsay evidence, and his or her testimony is prima facie evidence of the matters testified to.
(6) In calculating, for the purposes of a proceeding under section 243B, the value of benefits derived by the defendant by reason of his or her having engaged in a particular prescribed narcotics dealing, or in prescribed narcotics dealings during a particular period, any expenses or outgoings of the defendant in connection with that dealing, or those dealings, shall be disregarded.
(7) The Court, in quantifying the value of a benefit for the purposes of this section, may treat as the value of the benefit the value that the benefit would have had if derived at the time when the valuation is being made and, without limiting this, may have regard to any decline in the purchasing power of money between the time when the benefit was derived and the time when the valuation is being made.
(8) For the purposes of this section, where property of a person vests in a trustee in bankruptcy, the property shall be taken to continue to be the property of the person.
243CA Court may lift corporate veil etc.
(1) Where the Court is assessing the value of benefits derived by a person (in this section called the defendant) because of engaging in a particular prescribed narcotics dealing, or in prescribed narcotics dealings during a particular period, the Court may treat as property of the defendant any property that, in the opinion of the Court, is subject to the effective control of the defendant.
(2) Where the Court makes, or has made, an order (in this section called a pecuniary penalty order) that the defendant pay a pecuniary penalty under section 243B, the Court may:
(a) on application by the Minister, the Commissioner of Police, the Comptroller‑General of Customs or the Director of Public Prosecutions; and
(b) if the Court is of the opinion that particular property is subject to the effective control of the defendant;
make an order declaring that the whole, or a specified part, of that property is available to satisfy the pecuniary penalty order.
(3) Where the Court declares that property is available to satisfy a pecuniary penalty order:
(a) the order may be enforced against the property as if it were the defendant’s; and
(b) a restraining order may be made in respect of the property as if it were the defendant’s property.
(4) Where the Minister, the Commissioner of Police, the Comptroller‑General of Customs or the Director of Public Prosecutions makes an application for an order under subsection (2) that property is available to satisfy a pecuniary penalty order against the defendant:
(a) the person (in this paragraph called the applicant) who makes the application shall give written notice of the application to the defendant and to any person who the applicant has reason to believe may have an interest in the property; and
(b) the defendant and any person who claims an interest in the property may appear and adduce evidence at the hearing of the application.
243D Presumption of illegality of importation
Where, in a proceeding under section 243B against a person, the Court is satisfied that the narcotic goods in relation to which the person is alleged to have engaged in a prescribed narcotics dealing or in prescribed narcotics dealings are goods reasonably suspected of having been imported into Australia in contravention of this Act, the Court shall, for the purposes of the proceeding, treat the narcotic goods as narcotic goods which have been imported into Australia in contravention of this Act unless it is established to the satisfaction of the Court that the narcotic goods were not imported into Australia or were not imported into Australia in contravention of this Act.
243E Court may make restraining order against property