Proceeds of Crime Act 2002

Property is proceeds of an offence if wholly or partly derived or realised, directly or indirectly, from commission of the offence and is an instrument if used or intended to be used in or in connection with commission under section 329(1) and (2). This applies whether inside or outside Australia and without conviction under section 329(3). Property becomes proceeds or an instrument through further derivation, acquisition using proceeds or instruments, discharge of encumbrances using them or improvement using them under section 330(1) and (2). It remains so if credited to an account or disposed of under section 330(3). It ceases only in specified circumstances including acquisition by a third party for sufficient consideration without knowledge or reasonable suspicion, vesting in estate distribution after prior vesting, distribution under Family Law Act orders or agreements after six years subject to effective control exceptions, acquisition for reasonable legal expenses in POCA or criminal proceedings, forfeiture under a forfeiture order or corresponding law, or sale or disposal under the Act or regulations under section 330(4). Re-acquisition after cessation revives the status under section 330(5).

A person is taken to be convicted if convicted summarily or on indictment, found guilty but discharged without conviction, has an offence taken into account on sentence for another offence, or absconds in connection with the offence under section 331(1). Conviction day is the day of sentence, discharge without conviction, taking into account or absconding under section 333. A person absconds only if an information is laid, a warrant issued and the person cannot be found or is not amenable to justice after six months with extradition rules under section 334(1) and (2).

Property may be under effective control without legal or equitable interest. Trust property for ultimate benefit is under effective control. Property disposed without sufficient consideration within six years before or after application is taken to remain under control. Effective control disregards POCA orders. Regard may be had to shareholdings, directorships, trusts and family, domestic or business relationships including de facto partners and traced child or parent relationships under section 337.

Conduct is a foreign indictable offence if it would constitute an Australian offence punishable by at least 12 months imprisonment at the testing time under section 337A. Lawfully acquired property or wealth is that lawfully acquired with lawfully acquired consideration and not proceeds or instrument of an offence under section 336A. Wealth comprises property owned, under effective control, disposed of or consumed by the person at any time including before commencement of Part 2-6 under section 179G(1). Total wealth is the sum of values of such property. Value of disposed, consumed or unavailable property is the greater of value at acquisition or immediately before disposal, consumption or unavailability. Value of other property is the greater of value at acquisition or on the day the application was made under section 179G(2) to (4). Property vesting in an insolvency trustee continues to be treated as the person's property for value assessment under section 179H.

The unexplained wealth amount is the difference between total wealth and the sum of values of property the court is satisfied was not derived or realised from specified offences, reduced by amounts under section 179J. Literary proceeds are benefits from commercial exploitation of notoriety from committing an indictable or foreign indictable offence under section 153. Serious offence includes specified indictable offences involving narcotics, money laundering, benefits or losses of $10,000 or more, Migration Act offences, AML/CTF threshold offences, cartel provisions, terrorism offences and prescribed offences under section 338. Proceeds jurisdiction lies with courts having indictable criminal jurisdiction in the State or Territory where conduct occurred or is suspected, or any such court if conduct was outside Australia, with special rules for unknown offenders or property outside Australia. Magistrates have jurisdiction for certain orders following summary conviction. The Federal Court has jurisdiction for orders based on charging or conviction if it has indictable jurisdiction. Unexplained wealth orders fall to any indictable criminal jurisdiction court under section 335. The Act applies to offences committed and convictions recorded at any time under section 14(a) and (b).

The Act affects persons suspected or convicted of indictable offences, serious offences, foreign indictable offences or indictable offences of Commonwealth concern. It affects persons deriving literary proceeds or unexplained wealth. It affects persons with interests in property that is proceeds, an instrument or under effective control. It affects dependants seeking hardship relief. It affects financial institutions subject to notices, monitoring orders and freezing orders. It affects the Official Trustee with custody and control powers over controlled property. It affects proceeds of crime authorities including the DPP and prescribed classes. It affects authorised officers including AFP members or employees, NACC staff, ACC staff, Immigration or Border Protection employees, ASIC members or prescribed agency staff. It affects enforcement agencies. It affects legal aid commissions. It affects courts with proceeds jurisdiction. It affects participating States, cooperating States and self-governing Territories under the national unexplained wealth provisions.

The Act binds the Crown in right of the Commonwealth, States and self-governing Territories but does not render the Crown liable to prosecution under section 12(1) and (2). It extends to acts, matters and things outside Australia and to all persons irrespective of nationality or citizenship under section 13(a) and (b). It affects registration authorities recording restraining order particulars. It affects persons claiming interests in seized or forfeited property. It affects persons required to give information, attend examinations or produce books under section 270 including suspects and any person with relevant books or information. It affects the Parliamentary Joint Committee on Law Enforcement for oversight of Part 2-6 and section 20A. It affects foreign countries and participating States or Territories sharing under the national cooperative scheme on unexplained wealth via sections 297B to 297C.

Persons must not contravene restraining orders under section 37, freezing orders under section 15L or registration requirements before Commonwealth interest is registered under section 71. Financial institutions must comply with notices under sections 213 to 218, monitoring orders under sections 219 to 224 and freezing orders under section 15B, with protection for good-faith compliance under sections 15M, 215 and 221. The Official Trustee must preserve controlled property, may destroy or dispose in specified circumstances including to pay legal aid costs, must apply proceeds to the Confiscated Assets Account after costs and must not apply or sell until appeal periods expire under sections 276 to 285. Suspects and persons with interests must produce books and give information on oath when required by the Official Trustee under sections 268 to 270, attend examinations under sections 187 to 201 and comply with production orders under sections 202 to 212.

Persons may apply for exclusion of property from restraining or forfeiture orders if it is not proceeds or an instrument under sections 29 to 29A and 73 to 79A, for compensation under sections 77 and 94A, for hardship relief for dependants under section 72 and section 179L, for variation or revocation of orders under sections 15Q, 15R, 42 and 179C, and for buy-back or purchase of other interests under sections 89 to 90 and 103 to 106. Persons may appear and adduce evidence on applications for pecuniary penalty, literary proceeds or unexplained wealth orders under sections 138, 165 and 179E. The responsible authority must give notice of applications and orders under sections 33 to 35, 61, 136, 163 and 179N. Courts may make ancillary orders including for sworn statements of interests under section 39 and may stay proceedings in the interests of justice under section 319. The Act permits consent orders in Chapter 2 proceedings under section 316 and multiple applications to be heard together under section 315A. Transfers of responsibility between proceeds of crime authorities are permitted with consent and notice under section 315B.

The Official Trustee must give written notice of proposed destruction or disposal with a 14-day objection period under section 279 and apply to the court if an objection is maintained under section 280. Charges must be registered under relevant title or charge registration laws to provide notice to subsequent purchasers under sections 143, 170 and 179SB. The person subject to unexplained wealth orders bears the burden of proving wealth not derived or realised from specified offences under section 179E(3). The court may refuse unexplained wealth orders if the amount is less than $100,000 or not in the public interest under section 179E(6). The Commonwealth must give undertakings as to damages or costs where required under section 21 and section 179EA.

Contravention of a restraining order is an offence under section 37. Contravention of a freezing order by an institution is an offence under section 15L. Failure to comply with examination requirements is an offence carrying imprisonment for five years or 300 penalty units under sections 195 to 196. False or misleading answers or documents is an offence carrying the same penalty under section 197A. Failure to comply with production orders is an offence carrying imprisonment for two years or 120 penalty units under section 211. False statements in applications is an offence carrying imprisonment for 12 months or 60 penalty units under section 209. Failure to comply with notices to financial institutions or monitoring orders is an offence carrying imprisonment for two years or 120 penalty units or six months or 30 penalty units respectively under sections 218 and 224. False statements in search warrant applications is an offence carrying imprisonment for two years or 120 penalty units under section 266. Unauthorised disclosure of orders or information is an offence carrying imprisonment for two years or 120 penalty units or five years or 300 penalty units under sections 210, 217 and 223.

Amounts payable under pecuniary penalty orders, literary proceeds orders and unexplained wealth orders are civil debts due to the Commonwealth, enforceable as civil judgment debts under sections 140, 167 and 179R. Charges secure payment on restrained property or property under effective control declarations under sections 142, 169, 179S, 307 and 302A, with priority over later encumbrances subject to prior encumbrances other than those in which the person has an interest and unaffected by ownership changes subject to good-faith purchaser protections. The Official Trustee must dispose of non-money property and credit net proceeds to the Confiscated Assets Account after deducting costs under sections 70, 100 and 284. The Confiscated Assets Account receives proceeds of confiscated assets, interstate and foreign recoveries, equitable sharing amounts and other specified sums. Payments cover administration, approved programs, grants, legal aid and Mutual Assistance Act obligations under sections 295 to 298F. Appeals lie against confiscation orders, forfeiture orders or orders under sections 141, 168 or 179S under section 322. Costs may be ordered against the Commonwealth for successful proceedings to prevent or exclude property from forfeiture or restraining orders where the person was not involved in the offence under section 323.

The Act binds the Crown but does not render it liable to prosecution under section 12. It does not exclude or limit concurrent operation of State or Territory laws except the national unexplained wealth provisions under section 14A(1) and (2). The national unexplained wealth provisions under section 20A and Part 2-6, related provisions, instruments, Schedule 1 and Schedule 2, and machinery or transitional provisions operate concurrently with State and Territory laws, including special confiscation laws, even where those laws prevent or restrict dealings, confiscate property or require payments in circumstances or to extents not covered by the Commonwealth provisions under section 14L(1) to (4). Chapter 2 of the Criminal Code applies to all offences against the Act under section 4. A certificate of conviction under section 178 of the Evidence Act 1995 is admissible in civil proceedings under the Act under section 318. Transcripts of examinations are evidence of answers given under section 318. Statements made at examination by an absent witness may be admitted in specified circumstances under section 318A.

The Act interacts with the Bankruptcy Act 1966 under sections 129, 287 and 179H. It interacts with the Family Law Act 1975 under section 330(4). It interacts with the Personal Property Securities Act 2009 under sections 142(7), 307, 302C and 179SA(4) where subsection 73(2) determines priority of charges with security interests. It interacts with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 under section 337B for serious offence valuation and virtual asset definitions. It interacts with the Mutual Assistance in Criminal Matters Act 1987, Extradition Act 1988 and other specified Acts for disclosure and enforcement under section 266A table. It preserves legal professional privilege in search and seizure under section 264 but limits it in examinations and production under sections 197 and 206. Jurisdiction is vested in State and Territory courts without limitation by other jurisdictional limits under section 314. Proceedings for restraining or confiscation orders are civil under section 315. The Act does not limit other Commonwealth or non-governing Territory laws on forfeiture or pecuniary penalties under section 326. The Confiscated Assets Account is a special account under the Public Governance, Performance and Accountability Act 2013 under section 295. National cooperative scheme on unexplained wealth under sections 297A to 297C shares proceeds with foreign countries and States or Territories per the NCSUW agreement.

The Unexplained Wealth Legislation Amendment Act 2018 introduced the national unexplained wealth provisions resting on referrals or adoptions by participating States under section 51(xxxvii) of the Constitution, together with other Commonwealth powers under sections 14B(2) to (5) and (6) to (12). A State is a participating State if it referred text reference 1, text reference 2 and the amendment reference before the 2018 Act, or adopted post-amended versions 1 and 2 and referred the amendment reference after that Act under section 14C(1). Text reference 1 and 2 relate to matters covered by express amendments in the terms of relevant law 1 or 2 under sections 14C(2) and (3). The amendment reference covers unexplained wealth and information gathering to the extent of express amendments under section 14C(4). Post-amended version 1 and 2 are defined by reference to relevant laws 1 and 2 and subsequent express amendments under sections 14C(5) and (6). A State ceases to be participating if a referral or adoption terminates, subject to safeguards for simultaneous or delayed termination by proclamation under sections 14C(8) to (10). Cooperating States are former participating States that terminated only certain references but retained text reference 2 or post-amended version 2 and have not been declared non-cooperating under section 14F(1) to (5). Rollback provisions allow participating States or self-governing Territories to declare that specified express amendments do not apply to certain restraining-order, unexplained-wealth-order or production-order proceedings or notices under sections 14G to 14K. Schedule 1 provides for information gathering by participating States and self-governing Territories under section 14M. Schedule 2 contains transitional, application and saving provisions under section 14N.

An independent review of the Act's operation was required as soon as practicable after the third anniversary of commencement under section 327. An independent review of national unexplained wealth provisions and other NCSUW agreement matters is required as soon as practicable after the fourth anniversary of the 2018 Act commencement, with consultation with participating States, cooperating States and self-governing Territories under section 327A. These changes expanded the scheme to cover relevant offences of participating States and enabled sharing of proceeds under sections 297A to 297C while preserving concurrent State and Territory laws.

No specific court challenges or controversies are named in the source notes. The source notes record no named cases, judicial decisions or public controversies arising from the operation of the Act. Parliamentary oversight applies under section 179U, with the Parliamentary Joint Committee on Law Enforcement able to require the Australian Crime Commission, Australian Federal Police, DPP or any recipient of material disclosed under Part 2-6 to appear and give evidence. The Commissioner of the Australian Federal Police must provide an annual report containing the number of matters investigated by each enforcement agency where proceedings under this Part may result, the number and results of applications for restraining orders under section 20A and unexplained wealth orders, and any other prescribed information. The report must be given as soon as practicable after the section 67 Australian Federal Police Act 1979 report is laid before Parliament. The DPP and enforcement agency heads must supply information requested by the Commissioner for the report.

Restraining orders under section 20A cease if no application for an unexplained wealth order is made before or within 28 days after the restraining order, or if the court refuses a preliminary or final unexplained wealth order and any appeal period expires, lapses or is dismissed, or if the unexplained wealth order is made and complied with or any appeal is upheld under section 45A(1) to (3B). The court may order costs on an indemnity basis on application by a person with an interest under section 45A(4). For serious offences, the value of benefits is not less than the greatest excess of the person's property value during or after the illegal activity or related unlawful activity within the six-year period preceding the relevant application over the value before that activity, reduced to the extent the excess arose from unrelated causes. Expenditure during the period is presumed to equal the value of a benefit unless the contrary is proved under section 124. Property remains under effective control if disposed without sufficient consideration within six years before or after application under section 337(4). Paragraph 330(4)(ba) does not apply if the property remains under effective control of a convicted, charged, proposed-to-be-charged, committing or suspected person under section 330(5A).

Applications for pecuniary penalty orders relating to serious offence convictions must be made within nine months after conviction day or three months after an extension order expires. For other indictable offences, within six months under section 134. Further applications in respect of the same benefits are prohibited unless leave is granted on specified grounds under section 135. Pecuniary penalty orders made in relation to a conviction are discharged if the conviction is quashed and the responsible authority does not apply within 14 days for confirmation or variation unless the order relates to other offences and the offence is not serious under section 146. Literary proceeds orders and pecuniary penalty orders have parallel confirmation and variation rules on quashing under sections 173 and 149. Registration of interstate orders may be refused if unenforceable in the Territory under sections 303 and 309. Registration ceases if the order ceases in the originating jurisdiction or is cancelled under sections 305 and 311. The Official Trustee is not personally liable for loss or damage arising from taking custody or control unless negligent, or for rates, land tax, long-service leave payments in certain cases or other expenses under section 290. The Commonwealth must indemnify the Official Trustee under section 291. Stays are prohibited on grounds of proposed or possible criminal proceedings, related criminal proceedings, potential evidence relevance or stays of other POCA proceedings under section 319. The onus is on the applicant to prove grounds for an order. Questions of fact are decided on the balance of probabilities subject to sections 52 and 118 under section 317.

Applications for restraining orders must be supported by affidavits establishing the requisite suspicion or conviction or charge under sections 17(3), 18(3), 19(1)(e), 20(3) and 20A(3). Notice must be given to owners and interested persons subject to without-notice consideration under section 26. Property may be excluded if it is not proceeds or an instrument under sections 29 to 29A. Allowances for reasonable living, dependant or business expenses or specified debts are available subject to disclosure and non-legal-costs requirements under section 24. Examinations must be conducted in private. The examinee's lawyer may address and examine on matters already examined under sections 188 and 189. Production orders must specify the nature of documents, place, time at least 14 days or three days if urgency or hardship justifies, form and manner under section 203. Documents produced by natural persons are inadmissible in criminal proceedings against them except for false or misleading information offences under section 206. Notices to financial institutions must state the belief, specify the institution, kind of information, form and manner and time at least 14 days or three days if urgency or hardship under section 214. Search warrants must specify the nature of property, description of premises, kinds of tainted property or evidential material, responsible officer, expiry time, hours of execution and other required contents under section 227. Announcement and opportunity to allow entry are required with exceptions for safety or frustration under section 239. Receipts must be provided under section 253. Evidential material or things relevant to unexplained wealth proceedings must be returned when the reason for seizure no longer exists or after 60 days with exceptions under section 256. The Official Trustee must give written notice of proposed destruction or disposal with a 14-day objection period under section 279 and apply to the court if an objection is maintained under section 280. Charges must be registered under relevant title or charge registration laws to provide notice to subsequent purchasers under sections 143, 170 and 179SB. Independent reviews must be conducted as required under sections 327 and 327A. Regulations may prescribe necessary matters under section 328. For unexplained wealth matters, a proceeds of crime authority must apply under section 179M and satisfy the requirements of section 179B for a preliminary order, including an affidavit under subsection 179B(2). The person subject to a preliminary order may apply for revocation under section 179C within 28 days or extended period, providing grounds and material under section 179CA. The responsible authority must give notice under section 179N within seven days extendable. The person may appear and adduce evidence under section 179Q. For an unexplained wealth order under section 179E, the person bears the burden under subsection 179E(3) of satisfying the court that wealth was not derived from specified offences. The court may refuse under subsection 179E(6) if the amount is less than $100,000 or not in the public interest. An undertaking for damages or costs may be required under section 179EA. Ancillary orders may be sought under section 179F. Variation to increase the amount may be applied for under section 179K. A further order for dependants may be sought under section 179L if hardship is established. Enforcement proceeds under section 179R as a civil debt, with charges under section 179SA and registration under section 179SB. Parliamentary oversight applies under section 179U, with annual reporting obligations on the Commissioner of the Australian Federal Police.