Crime (Confiscation of Profits) Act 1993

Crime (Confiscation of Profits) Act 1993

An Act to provide for the confiscation of the proceeds of crime and the forfeiture of property in certain circumstances, for the reciprocal enforcement of certain Australian legislation relating to the confiscation of the proceeds of crime and the forfeiture of property and for related purposes

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Crime (Confiscation of Profits) Act 1993 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Act to bind Crown

(1)  This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

(2)  Nothing in this Act renders the Crown, in any of its capacities, liable to be prosecuted for an offence.

4.   Interpretation

[Section 4 Subsection (1) amended by No. 20 of 1995, s. 5 and Sched. 3 ]

(1)  [Section 4 Subsection (1) amended by No. 68 of 1994, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –

account means a facility or arrangement through which a financial institution accepts deposits or allows withdrawals, including a facility or arrangement for –

(a) a fixed term deposit; or

(b) a safety deposit box;

agent includes, if the agent is a corporation, the officers and agents of the corporation;

authorized officer means –

(a) in any case – the Director of Public Prosecutions or a legal practitioner or barrister within the meaning of the Legal Profession Act 1993 , acting on behalf of the Director of Public Prosecutions; or

(b) in relation to a function exercised before or in relation to a court of summary jurisdiction – the Commissioner or a police officer;

[Section 4 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000]

benefit includes service or advantage;

commencement day means the day proclaimed under section 2 ;

commercial benefit means –

(a) a benefit obtained from the publication or prospective publication of material in relation to the commission of an offence; or

(b) a benefit obtained from the commercial exploitation in any other way of notoriety gained by any person from the commission of an offence;

Commissioner means the Commissioner of Police;

confiscation order means a forfeiture order or a pecuniary penalty order;

corresponding law means a law of another State that is declared by the regulations to be a law that corresponds to this Act;

court of summary jurisdiction means a court constituted by a magistrate;

Crime (Confiscation of Profits) Account means the account of that name established under section 79 ;

director, in relation to a financial institution or corporation, includes –

(a) if the institution or corporation is a body corporate incorporated for a public purpose under a law of Tasmania, another State or the Commonwealth – a constituent member of the body corporate; and

(b) any person occupying or acting in the position of director of the institution or corporation, by whatever name called and whether or not validly appointed to occupy or duly authorized to act in the position; and

(c) any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act;

encumbrance, in relation to property, includes an interest or a mortgage, charge, right, claim or demand in respect of the property;

executive officer, in relation to a financial institution or corporation, means a person, by whatever name called and whether or not the person is a director of the institution or corporation, who is concerned with or takes part in the management of the institution or corporation;

facsimile copy means a copy obtained by facsimile transmission;

[Section 4 Subsection (1) amended by No. 74 of 1999, Sched. 2, Applied:01 Jan 2000] financial institution means –

(a) the Reserve Bank of Australia; or

(b) an authorised deposit-taking institution; or

(d) a body corporate that is, or had it been incorporated in Australia would be, a financial corporation within the meaning of section 51 (xx) of the Constitution of the Commonwealth;

fixed term deposit means an interest bearing deposit lodged for a fixed period;

forfeiture order means an order under section 16 (1) ;

interest, in relation to property, means –

(a) a legal or equitable estate or interest in the property; or

(b) a right, power or privilege over, or in connection with, the property –

whether present or future and whether vested or contingent;

interstate forfeiture order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

interstate pecuniary penalty order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

interstate restraining order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

interstate serious offence means an offence against a law of another State in relation to which an interstate forfeiture order or interstate pecuniary penalty order may be made under a corresponding law of that State;

monitoring order means an order under section 56 (1) ;

oath means oath or affirmation;

offence means an offence against a law of Tasmania;

officer means a director, secretary, executive officer or employee;

pecuniary penalty order means an order under section 21 (1) ;

penalty amount means –

(a) in relation to a forfeiture order made against a person – the amount specified in relation to the forfeiture order under section 16 (4) ; or

(b) in relation to a pecuniary penalty order made against a person – the amount that the person is, under the pecuniary penalty order, liable to pay to the State;

[Section 4 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004]

premises includes –

(a) land, whether or not covered by buildings; and

(b) any structure, whether or not attached to land; and

(c) a means of transport;

proceeds, in relation to an offence, means property that is derived or realized, directly or indirectly, by any person from the commission of the offence;

proceeds of crime means proceeds of a serious offence;

production order means an order under section 49 (5) ;

property means real or personal property of every description, wherever situated and whether tangible or intangible, including an interest in such property;

property-tracking document, in relation to an offence, means a document relevant to –

(a) identifying, locating or quantifying the property of the person who committed the offence; or

(b) identifying or locating a document necessary for the transfer of the property of the person who committed the offence; or

(c) identifying, locating or quantifying tainted property in relation to the offence; or

(d) identifying or locating a document necessary for the transfer of tainted property in relation to the offence;

Public Trustee means The Public Trustee;

regulations means regulations made and in force under this Act;

relevant application period, in relation to a person's conviction of a serious offence, means –

(a) in the case of a person who is taken to have been convicted of the offence by reason of section 5 (1) (a) – the period of 6 months immediately following the day on which the person was convicted of the offence; or

(b) in the case of a person who is taken to have been convicted of the offence by reason of section 5 (1) (b) – the period of 6 months immediately following the day on which the person was discharged without conviction; or

(c) in the case of a person who is taken to have been convicted of the offence by reason of section 5 (1) (c) – the period of 6 months immediately following the day on which the court took the offence into account in passing sentence for the other offence referred to in that section; or

(d) in the case of a person who is taken to have been convicted of the offence by reason of section 5 (1) (d) – the period of 6 months immediately following the day on which the person is to be taken to have absconded in connection with the offence;

restraining order means an order under section 26 (2) ;

serious offence means an offence against a law of Tasmania which may be dealt with as an indictable offence even though it may, in some circumstances, be dealt with summarily;

State –

(a) when used other than in a geographical sense – means the Crown in right of Tasmania; and

(b) when used in a geographical sense – includes the Australian Capital Territory and the Northern Territory;

tainted property, in relation to an offence, means –

(a) property used in, or in connection with, the commission of the offence; or

(b) proceeds of the offence; or

(c) property that constitutes a commercial benefit in relation to the offence –

and when used without reference to a particular offence means tainted property in relation to a serious offence;

telephone includes radio;

unlawful activity means an act or omission that constitutes an offence against a law of –

(a) Tasmania; or

(b) another State; or

(c) the Commonwealth.

(2)  For the purposes of this Act, a person is taken to have been charged with an offence if a complaint has been made against the person for the offence, whether or not –

(a) a summons to require the attendance of the person to answer the complaint has been issued; or

(b) a warrant for the apprehension of the person has been issued.

(3)  A reference in this Act to a benefit derived by a person includes a reference to –

(a) a benefit derived directly or indirectly by that person; and

(b) a benefit derived directly or indirectly by another person at the request or direction of that person.

(4)  A reference in this Act to acquiring property, or an interest in property, for sufficient consideration is a reference to acquiring the property or the interest for a consideration that is sufficient and, having regard solely to commercial considerations, reflects the value of the property or the interest.

(5)  For the purposes of this Act, a person is not taken to be a director within the meaning of paragraph (c) of the definition of director in subsection (1) by reason only that the directors act on advice given by that person in the proper performance of the functions attaching to his or her professional capacity or to his or her business relationship with the directors of the financial institution or corporation.

5.   Meaning of "convicted", &c.

(1)  For the purposes of this Act, a person is taken to have been convicted of an offence if –

(a) [Section 5 Subsection (1) amended by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] the person has been charged with and found guilty and convicted of the offence; or

(b) [Section 5 Subsection (1) amended by No. 59 of 1997, Sched. 1, Applied:01 Aug 1998] the person has been charged with and found guilty of the offence but the court hearing the charge has not proceeded to conviction; or

(c) the offence has been taken into account by a court in sentencing the person for another offence; or

(d) the person has absconded in connection with the offence.

(2)  For the purposes of this Act, a person's conviction is taken to have been quashed if –

(a) in the case of a person who is taken to have been convicted of the offence by reason of subsection (1) (a) – the conviction has been quashed or set aside; or

(b) in the case of a person who is taken to have been convicted of the offence by reason of subsection (1) (b) – the finding of guilt has been quashed or set aside; or

(c) in the case of a person who is taken to have been convicted of the offence by reason of subsection (1) (c) – either of the following events has occurred:

(i) the person's conviction of the other offence referred to in that subsection has been quashed or set aside;

(ii) the decision of the court to take the offence into account in passing sentence for that other offence has been quashed or set aside; or

(d) in the case of a person who is taken to have been convicted of the offence by reason of subsection (1) (d) – the person, after being brought before a court in respect of the offence, has been discharged in respect of the offence or a conviction of the person for the offence has been quashed or set aside.

(3)  A reference in this Act in relation to a person's conviction of an offence to the commission of the offence is, if the person is taken to have been convicted of the offence by reason of subsection (1) (d) , to be taken to be reference to the alleged commission of the offence by that person.

6.   Meaning of "absconded"

For the purposes of this Act, a person is taken to have absconded if and only if –

(a) the person has been charged with a serious offence; and

(b) a warrant for the arrest of the person has been issued in relation to the offence; and

(c) reasonable attempts to locate the person pursuant to the warrant have been unsuccessful during the period of 6 months commencing on the day the warrant was issued –

and the person is taken to have so absconded on the last day of that period of 6 months.

7.   Meaning of "dealing with property"

For the purposes of this Act, dealing with the property of a person includes –

(a) if a debt is owed to the person – making a payment to any person in reduction of the amount of the debt; and

(b) removing the property from Tasmania; and

(c) receiving or making a gift of the property.

8.   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 Act 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 Act, in determining –

(a) whether or not any property, or any interest in any property, is subject to the effective control of a person; or

(b) whether or not there are reasonable grounds to believe that any property, or any interest in any 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; and

(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 in trusts of the kind referred to in paragraph (d) , and other persons.

9.   Meaning of "appropriate court"

For the purposes of this Act, a reference to an appropriate court is a reference to –

(a) in any case – the Supreme Court; or

(b) in relation to the conviction of a person by a court of summary jurisdiction – either that court or the Supreme Court.

10.   Application of provisions of Act

(1)  Parts 2 , 3 and 4 of this Act do not apply to a person's conviction of an offence if the person was convicted of the offence before the commencement day.

(2)  Subsection (1) does not apply in relation to interstate forfeiture orders, interstate pecuniary penalty orders or interstate restraining orders.

(3)  Subject to this section, this Act applies to –

(a) an offence committed, or believed to have been committed, at any time (whether before or after the commencement day); and

(b) a person's conviction at any time of an offence (whether before or after the commencement day).

PART 2 - Confiscation

Division 1 - Applications for confiscation orders

11.   Applications

(1)  If a person is convicted of a serious offence, an authorized officer may apply to an appropriate court for either or both of the following orders:

(a) a forfeiture order against property that is tainted property in respect of the offence;

(b) a pecuniary penalty order against the person in respect of benefits, including any commercial benefits, derived by the person from the commission of the offence.

(2)  Except as provided by subsection (3) , an application under subsection (1) is to be made before the end of the relevant application period in relation to the conviction.

(3)  An application under subsection (1) may be made at any time after the end of the relevant application period in relation to the conviction if the application relates exclusively to commercial benefits.

(4)  An application under subsection (1) (b) may be made in relation to one or more serious offences.

(5)  If an application under subsection (1) has been finally determined, no further application is to be made under that subsection in relation to the same conviction except with the leave of the Supreme Court.

(6)  The Supreme Court is not to grant leave under subsection (5) unless it is satisfied that –

(a) the tainted property or the benefit to which the further application relates was identified only after the first application was finally determined; or

(b) necessary evidence became available only after the first application was finally determined; or

(c) it is otherwise in the interests of justice to grant the leave.

12.   Notice of applications

(1)  If an authorized officer applies for a forfeiture order against property in respect of a person's conviction of an offence –

(a) the authorized officer is to give written notice of the application to that person and to any person who the authorized officer has reason to believe may have an interest in the property; and

(b) the person convicted of the offence and any person who claims an interest in the property may appear and adduce evidence at the hearing of the application; and

(c) the court may, at any time before the final determination of the application, direct the authorized officer to give or publish notice of the application to a specified person or class of persons in such manner and within such time as the court considers appropriate.

(2)  If an authorized officer applies for a pecuniary penalty order against a person –

(a) the authorized officer is to give the person written notice of the application; and

(b) the person may appear and adduce evidence at the hearing of the application.

13.   Amendment of applications

(1)  A court may, at any time before making a confiscation order, amend the application for the order at the request of, or with the consent of, the authorized officer who made the application.

(2)  A court is not to exercise the power referred to in subsection (1) so as to –

(a) include additional property in an application for a forfeiture order; or

(b) include an additional benefit in an application for a pecuniary penalty order –

unless the court is satisfied that –

(c) the property or benefit was not reasonably capable of being identified when the application was originally made; or

(d) necessary evidence became available only after the application was originally made.

(3)  If the amendment of an application for a forfeiture order would have the effect of including additional property in the application for the forfeiture order –

(a) the applicant for the amendment is to give written notice of the application to amend to each person who the applicant has reason to believe may have an interest in the additional property; and

(b) a person so notified and any person who claims an interest in the additional property may appear and adduce evidence at the hearing of the application to amend.

(4)  If the amendment of an application for a pecuniary penalty order against a person would have the effect of including an additional benefit in the application for the pecuniary penalty order, the applicant for the amendment is to give the person written notice of the application to amend.

14.   Making of confiscation order if person absconded

If a person is taken to have been convicted of a serious offence by reason of section 5 (1) (d) , a court is not to make a confiscation order in reliance on the person's conviction of the offence unless the court is satisfied, on the balance of probabilities, that the person has absconded and –

(a) the person has been committed for trial for the offence; or

(b) the court is satisfied, having regard to all the evidence before it, that a reasonable and properly instructed jury could lawfully find the person guilty of the offence.

15.   Procedure on applications

(1)  A court to which an application is made for a confiscation order in respect of a person's conviction of an offence may, in determining the application, have regard to the transcript of any proceedings against the person for the offence.

(2)  If –

(a) an application is made for a confiscation order in respect of a person's conviction of an offence; and

(b) the application is made to the court before which the person was convicted; and

(c) the court has not passed sentence on the person for the offence –

the court may, if it is satisfied that it is reasonable to do so, defer passing sentence until it has determined the application for the confiscation order.

(3)  If –

(a) a person is taken to have been convicted of an offence by reason of section 5 (1) (c) ; and

(b) an application is made to a court for a confiscation order in respect of the conviction –

the reference in subsection (1) to proceedings against the person for the offence is to be taken to include a reference to proceedings against the person for the other offence referred to in section 5 (1) (c) .

Division 2 - Forfeiture orders

16.   Forfeiture orders

(1)  If a person has been convicted of a serious offence, and an application is made to a court under section 11 (1) (a) in relation to particular property, the court may, if it is satisfied that the property is tainted property in relation to the offence, order that the property is forfeited to the State.

(2)  In considering whether to make a forfeiture order a court is, having regard to the information before it, to consider –

(a) the use that is ordinarily made, or was intended to be made, of the property; and

(b) any hardship that is likely to be caused to any person by making the order.

(3)  In considering any hardship that is likely to be caused to a person convicted of a serious offence by the making of a forfeiture order, a court is not to take into account the sentence imposed for the offence.

(4)  If a court orders that property other than money is forfeited to the State under a forfeiture order, the court is to specify in the order the amount that it considers to be the value of the property at the time the order is made.

(5)  If, at the hearing of an application made under section 11 (1) (a) in reliance on the conviction of a person of a serious offence, evidence is given that property to which the application relates was in the possession of the person at, or immediately after, the time the offence was committed, then –

(a) if there is no evidence given tending to show that the property was not used in, or in connection with, the commission of the offence – the court is to presume that the property was used in, or in connection with, the commission of the offence; or

(b) in any other case – the court is not to make an order under this section in relation to the property unless it is satisfied that the property was used in, or in connection with, the commission of the offence.

(6)  A court that makes a forfeiture order in reliance on a person's conviction of a serious offence may declare in the order the extent of the person's estate, interest or rights in the property affected by the order and, if the order applies to land, the court must do so.

17.   Effect of forfeiture orders

(1)  If a court makes a forfeiture order in respect of property –

(a) the property vests in the State; and

(b) if the property is land under the Land Titles Act 1980 – the State is entitled to be registered as the owner of the land; and

(c) the property vests subject to every charge or encumbrance to which the property was subject immediately before the forfeiture order was made and, in the case of land under the Land Titles Act 1980 , subject to every mortgage, lease or other interest recorded in the register kept under that Act; and

(d) the Attorney-General has power, on behalf of the State, to do or authorize the doing of anything necessary or convenient to obtain the registration of the State as owner of the property; and

(e) if the property is not already in the possession of the State – the State may take possession of the property; and

(f) if the property is money – the State is entitled to pay the money into the Crime (Confiscation of Profits) Account in accordance with section 79 .

(2)  Except with the leave of the court that made the forfeiture order, the State is not to –

(a) dispose of, or otherwise deal with, property that has vested in the State under the order; or

(b) authorize any person to dispose of, or otherwise deal with, such property –

before the end of the greater of the following periods:

(c) the appeal period;

(d) the period of 6 months immediately following the making of the order.

(3)  If a court makes a forfeiture order in respect of property and, at the end of the greater of the 2 periods referred to in subsection (2) the forfeiture order has not been discharged, the property may –

(a) in the case of money – be paid into the Crime (Confiscation of Profits) Account in accordance with section 79 if it has not previously been paid into that account; and

(b) in the case of property other than money – be disposed of, or otherwise dealt with, in accordance with any directions of the Attorney-General or of a person authorized by the Attorney-General for the purposes of this subsection and any proceeds deposited in the Crime (Confiscation of Profits) Account.

(4)  For the purposes of subsections (2) and (3) , the appeal period ends when an appeal may no longer be lodged against either the forfeiture order or the conviction in reliance on which the order was made or, if such an appeal is lodged, when the appeal lapses or is finally determined.

18.   Provisions relating to third parties

(1)  If an application is made to a court for a forfeiture order against particular property, a person who claims an interest in the property may, subject to subsection (2) , apply to that court for an order under subsection (5) .

(2)  If a forfeiture order has been made, an application under subsection (1) is, subject to subsection (3) , to be made within the period of 6 months immediately following the making of the order.

(3)  A court that has made a forfeiture order may grant a person leave to apply under subsection (1) outside the 6 month period specified in subsection (2) if the court is satisfied that the failure to apply within that period was not due to any neglect or delay on the part of that person.

(4)  Without limiting the generality of subsection (3) , a court may grant a person leave to apply under subsection (1) if the court is satisfied that –

(a) although the person had notice of the application for the forfeiture order, he or she was unable, for a good reason, to attend the hearing of the application; or

(b) evidence proposed to be adduced by the person in connection with the application under subsection (3) was not available to the person at the time of the hearing of the application for the forfeiture order.

(5)  If, on an application under subsection (1) , a court is satisfied that the applicant –

(a) was not a party to the commission of the offence in reliance on which the forfeiture order is sought or was made; and

(b) acquired the interest in the property in good faith and for sufficient consideration; and

(c) acquired the interest in the property –

(i) before the commission of the offence in reliance on which the forfeiture order was made; or

(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property had become tainted property –

the court is to make an order declaring the nature, extent and, if necessary for the purposes of the order, the value (as at the time of the making of the order) of the applicant's interest in the property and directing the State to transfer or grant the property to the applicant or to pay to the applicant the declared value of the applicant's interest in the property, whichever the order directs.

(6)  A person who makes an application under subsection (1) is to give notice to the Attorney-General of the making of the application.

(7)  The Attorney-General is to be a party to any proceedings upon an application under subsection (1) .

(8)  [Section 18 Subsection (8) omitted by No. 15 of 2001, Sched. 2, Applied:01 Jul 2001] .  .  .  .  .  .  .  .  

19.   Discharge of forfeiture orders

(1)  In this section –

(a) a reference to the return of property includes, without limiting the meaning of that expression, the return of land, or the return of an estate or interest in land, by a conveyance, transfer or other appropriate transaction; and

(b) a reference to a person who had possession of property includes a reference to a person who is entitled to the property.

(2)  A forfeiture order is discharged if –

(a) the conviction in reliance on which the order is made is subsequently quashed; or

(b) the order is discharged by the court that hears an appeal against it under section 72 .

(3)  The payment to the State of the amount specified in a forfeiture order as the value of the property in respect of which the forfeiture order is made operates, except in so far as a court otherwise directs, to discharge the forfeiture order.

(4)  If a forfeiture order in respect of property is discharged, whether on an appeal against the making of the forfeiture order or as provided by this section, the person who had possession of the property before it was taken by or on behalf of the State may apply in writing to the Attorney-General for the return of the property.

(5)  On receipt of an application from a person for the return of property under subsection (4) , the Attorney-General is –

(a) if the property is still in the possession of the State – to arrange for the property to be returned to the person; or

(b) in any other case – to pay the person the amount realized on disposal of the property by the State.

(6)  If –

(a) a person applies to the Attorney-General under subsection (4) for the return of property that is in the possession of the State; and

(b) under section 18 , an amount has been paid to another person in respect of that other person's interest in the property –

then, notwithstanding subsection (5) , the Attorney-General is to inform the applicant that the property will be returned to the applicant on payment to the State of an amount equal to the amount paid as mentioned in paragraph (b) and, if that amount is paid to the State, the Attorney-General is to arrange for the property to be so returned.

(7)  If –

(a) a person applies to the Attorney-General under subsection (4) for the return of property that is not in the possession of the State; and

(b) under section 18 , an amount has been paid to another person in respect of that other person's interest in the property –

then, notwithstanding subsection (5) , there is payable to the applicant the amount realized on disposal of the property by the State, reduced by an amount equal to the amount referred to in paragraph (b) .

Division 3 - Pecuniary penalty orders

20.   Application of Division

This Division applies to –

(a) property that comes into the possession or under the control of a person, whether in Tasmania or elsewhere and whether before or after the commencement day; and

(b) benefits, including commercial benefits, that are provided to a person, whether in Tasmania or elsewhere and whether before or after the commencement day.

21.   Pecuniary penalty orders

(1)  If a person has been convicted of a serious offence and an application is made to a court under section 11 (1) (b) for an order in respect of the offence, the court may –

(a) assess in accordance with section 22 the value of the benefits, including any commercial benefits, derived by the person from the commission of the offence; and

(b) order the person to pay to the State a pecuniary penalty equal to the value so assessed.

(2)  If –

(a) property that constitutes the proceeds of the serious offence referred to in subsection (1) has been forfeited under this Act or a law of another State or the Commonwealth; or

(b) a forfeiture order is proposed to be made against property that constitutes the proceeds of that serious offence –

a pecuniary penalty to be paid in respect of that offence under this section is to be taken to be reduced by an amount equal to the value (as at the time of the making of the order) of the property forfeited, or to be forfeited.

(3)  If –

(a) a court makes a pecuniary penalty order in relation to an offence; and

(b) in calculating the penalty amount, the court took into account a proposed forfeiture order in respect of property; and

(c) an appeal against the forfeiture order is allowed or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made –

an authorized officer may apply to the court for a variation of the pecuniary penalty order to increase the penalty amount by an amount equal to the value of the property that was to have been forfeited and the court may, if it considers it appropriate to do so, vary the pecuniary penalty order accordingly.

(4)  An amount payable by a person to the State under a pecuniary penalty order made under this section is, for all purposes, taken to be a civil debt due by that person to the State.

(5)  A pecuniary penalty order made by a court under this section may be enforced as if it were an order made by the court in civil proceedings instituted by the State against that person to recover a debt due by that person to the State and the debt arising from the order is taken to be a judgment debt.

22.   Assessment of pecuniary penalties

(1)  In this section –

[Section 22 Subsection (1) amended by No. 95 of 2001, Sched. 2, Applied:01 Jun 2002] controlled substance means a controlled substance within the meaning of the Misuse of Drugs Act 2001 ;

[Section 22 Subsection (1) amended by No. 95 of 2001, Sched. 2, Applied:01 Jun 2002] offence period, in relation to an application under section 11 (1) (b) made in relation to 2 or more serious offences, means the period commencing when the earliest of those offences was committed and ending when the latest of those offences was committed.

[Section 22 Subsection (1) amended by No. 95 of 2001, Sched. 2, Applied:01 Jun 2002]

(2)  For the purposes of an application for a pecuniary penalty order against a person (in this subsection called "the defendant") the value of the commercial or other benefits derived by the defendant from the commission of a serious offence or serious offences is to be assessed by the court having regard to the evidence before it concerning all or any of the following:

(a) the money, or the value of the property other than money, that came into the possession or under the control of –

(i) the defendant; or

(ii) another person at the request or direction of the defendant –

by reason of the commission of the offence or any of the offences;

(b) the value of any other benefit provided to –

(i) the defendant; or

(ii) another person at the request or direction of the defendant –

by reason of the commission of the offence or any of the offences;

(c) if the offence or any of the offences consisted of the doing of an act or thing in relation to a raw narcotic, narcotic substance, prohibited substance or prohibited plant –

(i) the market value, as at the time of the offence, of similar or substantially similar narcotics, substances or plants; and

(ii) the amount that was, or the range of amounts that were, ordinarily paid for the doing of a similar or substantially similar act or thing;

(d) the value of the defendant's property –

(i) if the application relates to a single offence – before and after the commission of the offence; or

(ii) if the application relates to 2 or more offences – before, during and after the offence period;

(e) the defendant's income and expenditure –

(i) if the application relates to a single offence – before and after the commission of the offence; or

(ii) if the application relates to 2 or more offences – before, during and after the offence period.

(3)  If, at the hearing of an application for a pecuniary penalty order against a defendant in relation to a serious offence or serious offences, evidence is given that the value of the defendant's property –

(a) after the defendant committed the offence; or

(b) during and after the end of the offence period –

exceeded the value of the defendant's property before the defendant committed the offence or before the commencement of the offence period then, for the purposes of section 21 , the court is, subject to subsection (4) , to treat the value of the benefits derived by the defendant from the commission of the offence or offences as being not less than the amount of the excess.

(4)  If evidence has been given at the hearing of an application for a pecuniary penalty order against a defendant in relation to a serious offence or serious offences that –

(a) after the defendant committed the offence or offences, the value of the defendant's property exceeded the value of the defendant's property before the offence was, or the offences were, committed; or

(b) after the end of the offence period, the value of the defendant's property exceeded the value of the defendant's property before the commencement of the offence period –

but the defendant satisfies the court that the whole or part of the excess was due to causes unrelated to the commission of the offence or offences then –

(c) if the defendant so satisfies the court in respect of the whole of the excess – subsection (3) does not apply to the excess; or

(d) if the defendant so satisfies the court in respect of a part of the excess – subsection (3) applies to the excess as if it were reduced by the amount of that part.

(5)  A benefit is not to be taken into account for the purposes of this section if a pecuniary penalty has been imposed in respect of the benefit under –

(a) this Act; or

(b) another law of the State; or

(c) a law of another State; or

(d) the Proceeds of Crime Act 1987 of the Commonwealth; or

(e) Division 3 of Part XIII of the Customs Act 1901 of the Commonwealth.

(6)  In calculating, for the purposes of an application for a pecuniary penalty order, the value of benefits derived by a person from the commission of a serious offence or serious offences, any expenses or outgoings of the person in connection with the commission of the offence or offences are to be disregarded.

(7)  At the hearing of an application for a pecuniary penalty order, an inspector within the meaning of the Poisons Act 1971 or a police officer who is experienced in the investigation of narcotics offences may give evidence –

(a) [Section 22 Subsection (7) amended by No. 95 of 2001, Sched. 2, Applied:01 Jun 2002] with respect to the amount that, to the best of his or her information, knowledge and belief, was the market value of a controlled substance at a particular time or during a particular period; and

(b) [Section 22 Subsection (7) amended by No. 95 of 2001, Sched. 2, Applied:01 Jun 2002] 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 in relation to a controlled substance.

(8)  Subsection (7) has effect notwithstanding any rule of law or practice relating to the admission of hearsay evidence.

23.   Court may lift corporate veil, &c.

(1)  In assessing the value of commercial or other benefits derived by a person from the commission of an offence, a court may treat as property of the person any property that, in the opinion of the court, is subject to the effective control of the person.

(2)  On an application by an authorized officer a court may, if it is satisfied that particular property is subject to the effective control of a person against whom the court has made a pecuniary penalty order, make an order declaring that the whole, or a specified part, of that property is available to satisfy the pecuniary penalty order.

(3)  If a court declares that property is available to satisfy a pecuniary penalty order –

(a) the order may be enforced against the property as if the property were property of the person against whom the order is made; and

(b) a restraining order may be made in respect of the property as if the property were property of the person against whom the order is made.

(4)  If an authorized officer makes an application for an order under subsection (2) that property is available to satisfy a pecuniary penalty order made against a person –

(a) the authorized officer is to give written notice of the application to the person and to each person who the officer has reason to believe may have an interest in the property; and

(b) the person and each person so notified, and any person who claims an interest in the property, may appear and adduce evidence at the hearing of the application.

24.   Discharge of pecuniary penalty orders

(1)  A pecuniary penalty order is discharged if –

(a) the conviction in reliance on which the order was made is subsequently quashed; or

(b) the order is discharged by the court that hears an appeal against it under section 72 .

(2)  If a pecuniary penalty order registered under the Service and Execution of Process Act 1992 of the Commonwealth is discharged the Registrar or other proper officer of the Supreme Court is to give notice of the discharge of the order to the Registrar or other proper officer of the court in which the order was registered.

Division 4 - Re-hearings

25.   Re-hearings

(1)  If –

(a) a forfeiture order or pecuniary penalty order has been made in respect of a person charged with a serious offence but before the charge was finally determined the person absconded; and

(b) after the making of the order the person surrenders to a police officer –

the person may apply to the court that made the order to have the order set aside.

(2)  An applicant under subsection (1) is to give notice of the application to the Attorney-General who may appear to oppose the grant of the application.

(3)  On an application under subsection (1) the court may set aside the order subject to such terms and conditions with respect to costs or otherwise as it thinks fit.

(4)  If the court sets aside an order it is to re-hear the application for the order and may confirm, revoke or vary the order.

(5)  If an order is revoked under subsection (4) , the revocation does not prevent the making of another order in respect of the person under this Part.

PART 3 - Restraining Orders

26.   Restraining orders

(1)  If a person (in this section, and in sections 27 and 30 , called "the defendant") –

(a) has been convicted of a serious offence; or

(b) has been, or is about to be, charged with a serious offence –

an authorized officer may apply to the Supreme Court for an order under subsection (2) against any one or more of the following:

(c) specified property of the defendant;

(d) all the property of the defendant, including property acquired after the making of the order;

(e) all the property of the defendant, including property acquired after the making of the order, other than specified property;

(f) specified property of a person other than the defendant.

(2)  If an authorized officer applies to the Supreme Court for an order under this subsection against property, the court may, subject to section 27 , by order –

(a) direct that the property, or such part of the property as is specified in the order, is not to be disposed of or otherwise dealt with by any person except in such manner and in such circumstances, if any, as are specified in the order; and

(b) if the court is satisfied that the circumstances so require – direct the Public Trustee to take custody and control of the property, or of such part of the property as is specified in the order.

(3)  A restraining order against a person's property may be made subject to such conditions as the Supreme Court thinks fit and, without limiting the generality of this, may make provision for meeting out of the property, or a specified part of the property, all or any of the following:

(a) the person's reasonable living expenses, including the reasonable living expenses of the person's dependants, if any, and reasonable business expenses;

(b) the person's reasonable expenses in defending a criminal charge;

(c) a specified debt incurred by the person in good faith, being a debt to which neither paragraph (a) nor (b) applies.

(4)  The Supreme Court is not to make provision of a kind referred to in subsection (3) unless it is satisfied that the defendant cannot meet the expense or debt concerned out of property that has not been brought under the custody and control of the Public Trustee.

(5)  A restraining order is sufficient authority for a person to whom the order is directed to take all steps necessary or desirable to give effect to the order.

27.   Grounds for making restraining orders

(1)  The Supreme Court is not to make a restraining order in respect of a defendant who has not been convicted of the offence to which the application for the order relates unless –

(a) the application for the order is supported by an affidavit of a police officer stating that the police officer believes that the defendant committed the offence; and

(b) the court is satisfied, having regard to the matters contained in the affidavit, that there are reasonable grounds for holding that belief.

(2)  The Supreme Court is not to make a restraining order in respect of a defendant who has not been charged with the offence to which the application for the order relates unless the court is satisfied that the defendant will be charged with the offence, or a related offence, within 48 hours.

(3)  For the purposes of subsection (2) , offences are taken to be related to each other if the elements of the offences are substantially the same acts or omissions.

(4)  The Supreme Court is not to make a restraining order against the property of a defendant unless –

(a) the application for the order is supported by an affidavit of a police officer stating that the police officer believes that –

(i) the property to which the application relates is tainted property in relation to the offence concerned; or

(ii) the defendant derived a benefit, directly or indirectly, from the commission of the offence concerned; and

(b) the court is satisfied, having regard to the matters contained in the affidavit, that there are reasonable grounds for holding that belief.

(5)  The Supreme Court is not to make a restraining order against specified property of a person other than a defendant unless –

(a) the application for the order is supported by an affidavit of a police officer stating that the police officer believes that –

(i) the property is tainted property in relation to the offence concerned; or

(ii) the property is subject to the effective control of the defendant and the defendant derived a benefit, directly or indirectly, from the commission of the offence concerned; and

(b) the court is satisfied, having regard to the matters contained in the affidavit, that there are reasonable grounds for holding that belief.

(6)  The Supreme Court may make a restraining order in respect of property whether or not there is a risk of the property being disposed of, or otherwise dealt with, in such manner as would defeat the operation of this Act.

(7)  The Supreme Court may refuse to make a restraining order if the State refuses or fails to give to the court such undertakings as the court considers appropriate with respect to the payment of damages or costs, or both, in relation to the making and operation of the order.

(8)  For the purposes of an application under section 26 , an authorized officer may, on behalf of the State, give to the Supreme Court such undertakings with respect to the payment of damages or costs, or both, as are required by the court.

(9)  An affidavit made by a police officer for the purposes of this section, stating that the police officer believes a particular matter, is to set out the grounds on which the police officer holds that belief.

28.   Notice of applications for restraining orders

(1)  The Supreme Court may, at any time before the final determination of an application under section 26 , direct the applicant to give or publish notice of the application to such persons, in such manner and within such time, as the court considers appropriate.

(2)  Any person whose property is the subject of the application, and any person who claims an interest in any such property, may appear and adduce evidence at the hearing of the application.

(3)  The Supreme Court may, in an urgent case, make a restraining order on an application made without notice, but such an order has effect only for a maximum period of 14 days.

29.   Notice of restraining orders to be given to affected persons

If a restraining order is made in respect of property of a person and notice was not given to that person of the application for the order, the applicant must give notice of the making of the order to that person.

30.   Court may make further orders

(1)  If the Supreme Court makes a restraining order, it may, at the time it makes the order or at any later time, make any ancillary orders that it considers appropriate and, without limiting the generality of this, may make any one or more of the following orders:

(a) an order varying the property to which the restraining order relates;

(b) an order varying any condition to which the restraining order is subject;

(c) an order for the examination on oath of –

(i) a person (in this section called "the owner") whose property is subject to the restraining order; or

(ii) the defendant –

before the court or the Registrar of the court concerning the affairs of the owner or the defendant, or both of them, including the nature and location of any property of the owner or the defendant or of them both;

(d) an order with respect to the carrying out of any undertaking with respect to the payment of damages or costs given by the State in connection with the making of the restraining order;

(e) an order directing –

(i) the owner; or

(ii) if the owner is not the defendant – the defendant; or

(iii) if the owner or the defendant is a corporation – a director of the corporation specified by the court –

to give to –

(iv) if the restraining order is, or includes, an order made under section 26 (2) (b) – the Public Trustee; and

(v) in any other case – the applicant for the order or such other person as the court directs –

within such period as is specified in the order, a statement verified by the oath of the person making the statement setting out such particulars of the property or dealings with the property of the owner or defendant, as the case may be, as the court thinks proper;

(f) if the restraining order directed the Public Trustee to take custody and control of property –

(i) an order regulating the manner in which the Public Trustee may exercise the Public Trustee's powers or perform the Public Trustee's duties under the restraining order; or

(ii) an order determining any question relating to the property to which the restraining order relates, including any question relating to –

(A) the liabilities of the owner; or

(B) the exercise of the powers or the performance of the duties of the Public Trustee –

with respect to the property to which the restraining order relates; or

(iii) an order directing the owner, or another person, to do any act or thing necessary or convenient to be done to enable the Public Trustee to take custody and control of the property in accordance with the restraining order.

(2)  An order under subsection (1) may be made by the Supreme Court on its own motion or on the application of –

(a) an authorized officer; or

(b) the owner; or

(c) if the restraining order directed the Public Trustee to take custody and control of property – the Public Trustee; or

(d) with the leave of the Supreme Court – any other person.

(3)  A person who is examined before the Supreme Court or the Registrar of the court pursuant to an order under subsection (1) is not excused from answering a question when required to do so by the court or Registrar, as the case may be, on the ground that the answer to the question might tend to incriminate the person or render the person liable to a forfeiture or penalty.

(4)  If a person is examined before the Supreme Court or the Registrar of the court pursuant to an order under subsection (1) , a statement or disclosure made by the person in answer to a question put in the course of the examination is not admissible against the person in any criminal proceedings other than a proceeding for giving false testimony in the course of the examination.

(5)  A person who is directed to furnish a statement to the Public Trustee pursuant to an order under subsection (1) is not excused from –

(a) furnishing the statement; or

(b) setting out particulars in the statement –

on the ground that the statement or particulars, as the case may be, might tend to incriminate the person or render the person liable to a forfeiture or penalty.

(6)  If a person furnishes a statement to the Public Trustee pursuant to an order under subsection (1) , the statement is not admissible against the person in any criminal proceedings other than a proceeding in respect of the falsity of the statement.

(7)  For the purposes of subsections(4) and ( 6 ), proceedings on an application for a restraining order, forfeiture order or pecuniary penalty order are not criminal proceedings.

(8)  A person who makes an application under this section in relation to a restraining order is to give written notice of the application to each other person who is entitled, by virtue of subsection (2) , to make an application under this section in relation to the restraining order.

(9)  A person who is ordered to attend an examination referred to in subsection (1) (c) must not –

(a) without reasonable excuse – fail to attend as required by the order; or

(b) without reasonable excuse – fail to attend from day to day until the conclusion of the examination; or

(c) refuse or fail to take an oath or make an affirmation for the purpose of the examination; or

(d) refuse or fail to answer a question that the person is directed by the Supreme Court or the Registrar of the court to answer; or

(e) make a statement in the course of the examination that is false or misleading in a material particular.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both.

31.   Public Trustee to discharge pecuniary penalty orders

(1)  If –

(a) the Public Trustee has taken custody and control of all or some of the property of a person under a restraining order; and

(b) a pecuniary penalty order has been made in reliance on the conviction of the person –

an appropriate court may, on application by the Public Trustee, make an order (in this section referred to as "the later order") directing the Public Trustee to pay to the State, out of that property, an amount equal to the penalty amount.

(2)  For the purpose of enabling the Public Trustee to comply with the later order, the appropriate court may, by the later order or a subsequent order –

(a) direct the Public Trustee to sell or otherwise dispose of such of the property under the custody and control of the Public Trustee as the court specifies; and

(b) appoint an officer of the court or another person to execute any deed or instrument in the name of the person who owns or has an estate, interest or right in the property and to do all acts and things necessary to give validity and operation to such deed or instrument.

(3)  The execution of a deed or instrument by a person appointed for the purpose under subsection (2) (b) has the same force and validity as if it had been executed by the person who owned or had an estate, interest or right in the property.

(4)  As soon as practicable after the making of the later order, the Public Trustee is –

(a) to apply the money that has come into the Public Trustee's possession or under the Public Trustee's control by reason of the sale or disposition of any of the property specified in the later order or subsequent order or otherwise in the course of performing the Public Trustee's duties in respect of the property to which the restraining order relates, in payment of –

(i) the fees payable in connection with; and

(ii) the expenses incurred by the Public Trustee in or in connection with –

the performance of the duties imposed on the Public Trustee under the restraining order, including the expenses incurred by the Public Trustee in or in connection with the sale or disposition of any of the property to which the restraining order relates; and

(b) subject to subsection (5) and after the payments referred to in paragraph (a) have been made – to pay the remainder of the money referred to in that paragraph to the State.

(5)  If the money to which subsection (4) (b) applies exceeds the penalty amount, the Public Trustee is –

(a) to pay to the State, out of that money, an amount equal to the penalty amount; and

(b) to pay the balance of that money to the person referred to in subsection (1) .

(6)  If, in accordance with the later order, the Public Trustee pays money to the State in respect of the liability of a person under a pecuniary penalty order, the liability of the person under the pecuniary penalty order is, to the extent of the payment, taken to be discharged.

32.   Charges on property subject to restraining orders

(1)  If –

(a) a pecuniary penalty order is made against a person in reliance on the person's conviction of an offence; and

(b) a restraining order in relation to the offence or a related offence is or has been made against all or some of the property of that person –

there is created, on the making of the later of the orders, a charge on the property to which the restraining order applies to secure the payment to the State of the penalty amount.

(2)  If a charge is created under subsection (1) on property of a person, the charge ceases to have effect in respect of the property –

(a) upon the discharge of the pecuniary penalty order; or

(b) upon payment to the State of the penalty amount in satisfaction of the pecuniary penalty order; or

(c) upon the sale or other disposition of the property –

(i) under an order under section 31 ; or

(ii) by the owner of the property with the consent of the court that made the pecuniary penalty order; or

(iii) if the restraining order directed the Public Trustee to take custody and control of the property – by the owner of the property with the consent of the Public Trustee; or

(d) upon the sale of the property to a purchaser in good faith for value who, at the time of purchase, had no notice of the charge –

whichever occurs first.

(3)  A charge created on property under subsection (1) upon the making of a pecuniary penalty order –

(a) is subject to every charge or encumbrance to which the property was subject immediately before the later order under section 31 was made and, in the case of land under the Land Titles Act 1980 , is subject to every mortgage, lease or other interest recorded in the register kept under that Act; and

(b) has priority over all other encumbrances; and

(c) subject to subsection (2) – is not affected by any change of ownership of the property.

(4)  If a charge is created under subsection (1) on property of a particular kind and a law of Tasmania provides for the registration of title to, or charges over, property of that kind, the Public Trustee or an authorized officer may cause the charge so created to be registered under the provisions of that law and, if the charge is so registered, a person who purchases or otherwise acquires an interest in the property after the registration of the charge is, for the purposes of subsection (2) (d) , taken to have had notice of the charge at the time of the purchase or acquisition.

(5)  If a charge under this section relates to land under the Land Titles Act 1980 , the charge is of no effect until it is registered under that Act.

33.   Registration of restraining orders

(1)  If a restraining order applies to property of a particular kind and a law of Tasmania provides for the registration of title to, or charges over, property of that kind, the authority responsible for administering that law is, on the application of an authorized officer, to record on the register kept pursuant to that law the particulars of the restraining order and, if those particulars are so recorded, a person who subsequently deals with the property is, for the purposes of section 34 , taken to have had notice of the restraining order at the time of the dealing.

(2)  If a restraining order applies to land under the Land Titles Act 1980 , a caveat may be lodged under that Act in relation to the order.

34.   Contravention of restraining orders

(1)  A person must not knowingly contravene a restraining order by disposing of, or otherwise dealing with, property that is subject to the restraining order.

Penalty:   –

(a) in the case of a body corporate – a fine not exceeding 500 penalty units; or

(b) in any other case – a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 5 years, or both.

(2)  If –

(a) a restraining order is made against property; and

(b) the property is disposed of, or otherwise dealt with, in contravention of the restraining order; and

(c) the disposition or dealing was either not for sufficient consideration or not in favour of a person who acted in good faith –

an authorized officer may apply to the Supreme Court for an order that the disposition or dealing be set aside.

(3)  If an authorized officer makes an application under subsection (2) in relation to a disposition of, or dealing with, property –

(a) the authorized officer is to give written notice of the application to each person who the authorized officer has reason to believe may have acquired an interest in the property on or after the day on which the disposition or dealing took place; and

(b) a person so notified, and any person who claims to have acquired an interest in the property on or after the day on which the disposition or dealing took place, may appear and adduce evidence at the hearing of the application; and

(c) the court may, at any time before the final determination of the application, direct the authorized officer to give or publish notice of the application to a specified person or class of persons in such manner and within such time as the court considers appropriate.

(4)  If an authorized officer makes an application under subsection (2) in relation to a disposition or dealing, the Supreme Court may make an order –

(a) setting the disposition or dealing aside as from the day on which the disposition or dealing took place; or

(b) setting the disposition or dealing aside as from the day of the order under this subsection and declaring the respective rights of any persons who acquired interests in the property on or after the day on which the disposition or dealing took place and before the day of the order under this subsection.

35.   Obstruction of Public Trustee

(1)  [Section 35 Subsection (1) amended by No. 20 of 1995, s. 5 and Sched. 3 ]In this section Public Trustee includes the officers, servants and agents of the Public Trustee.

(2)  A person must not, without reasonable excuse, obstruct or hinder the Public Trustee in –

(a) the exercise of the Public Trustee's powers under this Act; or

(b) the performance of the Public Trustee's duties in relation to property that the Public Trustee has taken custody and control of under a restraining order.

Penalty:   –

(a) in the case of a body corporate – a fine not exceeding 100 penalty units; or

(b) in any other case – a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 2 years, or both.

36.   Limitation on liability of Public Trustee

(1)  [Section 36 Subsection (1) amended by No. 20 of 1995, s. 5 and Sched. 3 ]In this section Public Trustee includes the officers, servants and agents of the Public Trustee.

(2)  [Section 36 Subsection (2) amended by No. 20 of 1995, s. 5 and Sched. 3 ] Section 71 of the Public Trustee Act 1930 applies to, and in respect of, the functions of the Public Trustee under this Act in the same way as it applies to, and in respect of, the functions of the Public Trustee under that Act, but nothing in this section is to be taken as limiting the operation of that section.

(3)  The Public Trustee is not personally liable for any rates, land tax or municipal or other statutory charges imposed under a law of Tasmania in respect of property that the Public Trustee has been directed by a restraining order to take custody and control of, being rates, land tax or municipal or other statutory charges that fall due on or after the date of the order, except to the extent, if any, of the rents and profits received by the Public Trustee in respect of that property on or after the date of the order.

(4)  If the Public Trustee, having been directed by a restraining order to take custody and control of a business carried on by a person, carries on that business, the Public Trustee is not personally liable for –

(a) any payment in respect of long service leave or extended leave for which that person was liable; or

(b) any payment in respect of long service leave or extended leave to which a person employed by the Public Trustee in the Public Trustee's capacity as custodian and controller of the business or as legal personal representative of such a person becomes entitled after the date of the order.

37.   Costs payable to Public Trustee

[Section 37 Amended by No. 20 of 1995, s. 5 and Sched. 3 ]If the Public Trustee takes custody and control of property in accordance with a restraining order, the Public Trustee is entitled to receive such fees in respect of –

(a) the exercise of the Public Trustee's powers; and

(b) the performance of the Public Trustee's duties –

in relation to the property as may be prescribed by or under the Public Trustee Act 1930 .

38.   Duration of restraining orders

(1)  Subject to this section, a restraining order remains in force for the period of 6 months immediately following the day on which it is made or for such other period as is specified in the order.

(2)  A restraining order made in reliance on the proposed charging of a person with a serious offence ceases to be in force at the expiration of the period of 48 hours immediately following the time at which it is made if the person is not, within that period of time, charged with the offence or a related offence.

(3)  The Supreme Court may, on application made to it, make an order –

(a) extending the period for which a restraining order is to remain in force; or

(b) setting aside a restraining order.

(4)  An application for an order under subsection (3) may be made by –

(a) an authorized officer; or

(b) the person in respect of whom the restraining order was made; or

(c) any person whose property the restraining order relates to; or

(d) any person who has an interest in the property that the restraining order relates to.

(5)  An applicant for an order under subsection (3) is to give written notice of the application to each other person who the applicant has reason to believe could have applied for the order.

(6)  Any person who is given or entitled to be given notice under subsection (5) may appear and adduce evidence at the hearing of the application.

(7)  Without limiting the generality of subsection (3) , the Supreme Court may make an order setting aside a restraining order on the application of a person referred to in subsection (4) (b) if the person –

(a) gives security satisfactory to the court for the payment of any pecuniary penalty that may be imposed on the person under section 21 (1) ; or

(b) gives undertakings satisfactory to the court concerning the person's property.

PART 4 - Search Warrants

39.   Interpretation

(1)  In this Part, unless the contrary intention appears –

forfeiture order includes an interstate forfeiture order;

relevant serious offence in relation to tainted property, means the serious offence by reason of the commission of which the property is tainted property;

serious offence includes an interstate serious offence;

tainted property includes property that –

(a) was used in, or in connection with, the commission of an interstate serious offence; or

(b) was derived or realized, directly or indirectly, by any person as a result of the commission of an interstate serious offence.

(2)  For the purposes of this Part, the question of whether a person has been charged with, or convicted of, an interstate serious offence is to be determined in accordance with the relevant corresponding law.

40.   Search warrants

(1)  A police officer may apply to a magistrate for a search warrant to be issued under this Part if the police officer has reasonable grounds for believing that there is on any premises tainted property of a particular kind.

(2)  A magistrate to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorizing a police officer –

(a) to enter premises; and

(b) to search those premises for tainted property of the particular kind referred to in subsection (1) ; and

(c) to seize any property found in the course of the search that the police officer believes, on reasonable grounds, to be tainted property of the kind specified in the warrant.

(3)  A search warrant issued under this Part is of no effect unless –

(a) it states the purpose for which the warrant has been issued, including a reference to the nature of the relevant serious offence; and

(b) it specifies whether entry is authorized to be made at any time of the day or night, or only during specified hours of the day or night; and

(c) it contains a description of the kind of property authorized to be seized under the warrant; and

(d) it specifies a date, being a date not later than one month after the day on which the warrant is issued, on which the warrant ceases to have effect.

(4)  Nothing is this Part limits any other statutory law relating to search warrants.

(5)  Schedule 1 has effect with respect to a search warrant issued under this Part.

41.   Telephone warrants in respect of tainted property

(1)  Subject to this section –

(a) an application under section 40 (1) may be made by telephone if the applicant is of or above the rank of sergeant; and

(b) a magistrate may, under section 40 (2) , issue a search warrant that has been applied for by telephone.

(2)  A magistrate issues a search warrant that has been applied for by telephone by stating the terms of the warrant.

(3)  A magistrate is not to issue a search warrant under section 40 that has been applied for by telephone if the magistrate is of the opinion that it would be practicable in the circumstances for the police officer to apply to a magistrate for the warrant in person.

(4)  A magistrate who issues a search warrant under section 40 that has been applied for by telephone is to cause a record to be made in writing of –

(a) the name and rank of the police officer who applied for the warrant; and

(b) the location of that police officer at the time the application was made; and

(c) the reasons given by the applicant as to why it was not practicable in the circumstances for the applicant to apply to a magistrate for a warrant in person; and

(d) the terms of the warrant as stated to the police officer to whom it was issued; and

(e) the date and time the warrant was issued.

(5)  A police officer perfects a search warrant issued to the officer by telephone by –

(a) causing a record to be made in writing setting out the terms of the warrant; and

(b) endorsing the record with the name of the magistrate by whom, and the date and time when, the warrant was issued.

42.   Seizure of property pursuant to warrants

(1)  A police officer who executes a search warrant issued under this Part may seize property of the kind specified in the warrant.

(2)  If, in the course of executing a search warrant issued under this Part, a police officer finds any property that the police officer believes on reasonable grounds to be –

(a) tainted property in relation to the relevant serious offence, although not of a kind specified in the warrant; or

(b) tainted property in relation to another serious offence –

and the police officer believes, on reasonable grounds, that it is necessary to seize that property to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the relevant serious offence or the other serious offence, the warrant is taken as authorizing the police officer to seize that property.

(3)  The power conferred by this section to seize a thing includes –

(a) a power to remove the thing from the premises where it is found; and

(b) a power to guard the thing on those premises.

43.   Search and arrest of persons pursuant to warrants

A police officer who executes a search warrant issued under this Part may –

(a) search any person found on the premises who the police officer reasonably suspects of having property of the kind specified in the warrant; and

(b) arrest any person found on the premises who the police officer reasonably suspects of having committed an offence in respect of property seized pursuant to section 42 .

44.   Issue of warrants if charges not laid

A search warrant may be issued under this Part in relation to property whether or not a person has been charged with the relevant serious offence, but a magistrate is not to issue a search warrant under this Part in relation to property if a person has not been charged with the relevant serious offence unless the magistrate is satisfied –

(a) that the property is tainted property; and

(b) that it is likely that a person will be charged within 48 hours with the relevant serious offence.

45.   Commissioner responsible for seized property

If property is seized pursuant to a search warrant issued under this Part, the Commissioner is –

(a) to arrange for the property to be kept until it is dealt with in accordance with another provision of this Act; and

(b) to ensure that all reasonable steps are taken to preserve the property while it is so kept.

46.   Return of seized property

(1)  A reference in this section to the relevant time is –

(a) subject to paragraph (b) – a reference to the date of the conviction, discharge or acquittal or of the refusal to make the forfeiture order, as the case requires; or

(b) if there is a right of appeal and the period for lodging the appeal has expired without an appeal having been lodged – a reference to the expiration of that period; or

(c) if there is a right of appeal and an appeal has been lodged – a reference to the time when the appeal lapses or is finally determined.

(2)  If –

(a) property has been seized pursuant to a search warrant issued under this Part; and

(b) at the time the property was seized a person had not been charged with the relevant serious offence; and

(c) before the expiration of the period of 7 days immediately after the property was seized a person had not been charged with that offence –

then, unless an application for a forfeiture order is made in respect of the property, as soon as practicable after the expiration of that 7 day period the Commissioner is to arrange for the property to be returned to the person from whose possession it was seized.

(3)  If –

(a) property has been seized pursuant to a search warrant issued under this Part; and

(b) either before the property was seized, or after it was seized but before the expiration of the period of 7 days immediately after it was seized, a person has been charged in respect of the relevant serious offence, or criminal proceedings have otherwise been commenced in respect of the relevant serious offence –

then, unless an application for a forfeiture order is made in respect of the property, the Commissioner is to arrange for the property to be returned to the person from whose possession it was seized –

(c) if the person is convicted of the offence – as soon as practicable after the expiration of 6 months after the relevant time; or

(d) if the person is discharged or acquitted of the offence – as soon as practicable after the relevant time.

(4)  If –

(a) property has been seized pursuant to a search warrant issued under this Part; and

(b) a court having jurisdiction to do so refuses to make a forfeiture order in respect of the property in relation to the relevant serious offence –

the Commissioner is to arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the relevant time.

(5)  If property has been seized pursuant to a search warrant under this Part, a person from whose possession the property was seized may apply to an appropriate court for an order under subsection (6) .

(6)  If the court is satisfied that neither it nor any other court having jurisdiction to do so would make a forfeiture order in respect of the property, the court may make an order –

(a) directing that the property be returned to the person from whose possession it was seized; or

(b) directing that the person be allowed access to the property –

on such terms and conditions, if any, as the court thinks fit.

(7)  A person who applies to a court for an order under subsection (6) is to give notice, as prescribed by the regulations or by rules of court, of the making of the application and of the date, time and place fixed for the hearing of the application.

(8)  A reference in this section to a person from whose possession property was seized includes a reference to any person who is entitled to the property.

47.   Obstruction of persons executing search warrants

A person must not, without reasonable excuse, obstruct or hinder a police officer who is executing a search warrant issued under this Part.

Penalty:   –

(a) in the case of a body corporate – a fine not exceeding 100 penalty units; or

(b) in any other case – a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 2 years, or both.

PART 5 - Information Gathering Powers

Division 1 - Interpretation

48.   Interpretation

(1)  In this Part, unless the contrary intention appears serious offence includes an interstate serious offence.

(2)  For the purposes of this Part, the question of whether a person has been charged with, or convicted of, an interstate serious offence is to be determined in accordance with the relevant corresponding law.

Division 2 - Production orders

49.   Production orders

(1)  In this section bankers books means any accounting records used in the ordinary business of banking, including ledgers, day-books, cash-books and account books.

(2)  If a police officer has reasonable grounds for suspecting that –

(a) a person has committed a serious offence and that that person or any other person has possession or control of a property-tracking document in relation to the offence; or

(b) a person has possession or control of a property-tracking document in relation to a serious offence for which that person or any other person has been convicted –

the police officer may –

(c) lay before a magistrate information on oath setting out those grounds; and

(d) apply to the magistrate for an order under subsection (5) against the person suspected of having possession or control of the document.

(3)  If a police officer who applies for an order under this section in respect of an offence includes in the information under subsection (1) information on oath that the police officer has reasonable grounds to believe that –

(a) the person who is believed to have committed the offence or who was convicted of the offence derived a commercial or other benefit, directly or indirectly, from the commission of the offence; and

(b) property specified in the information is subject to the effective control of that person –

the magistrate may treat any document relevant to identifying, locating or quantifying that property as a property-tracking document in relation to the offence for the purposes of this section.

(4)  A magistrate may have regard to the matters referred to in section 8 (2) in determining whether to treat a document as a property-tracking document in relation to an offence.

(5)  If an application is made under subsection (2) for an order against a person, the magistrate may, subject to subsections (6) , (7) , (8) and (9) , make an order that the person –

(a) produce to a police officer any document of the kind referred to in subsection (2) that is in the person's possession or under the person's control; or

(b) make available to a police officer, for inspection, any document of that kind that is in the person's possession or under the person's control.

(6)  A magistrate is not to make an order under subsection (5) (a) in respect of bankers books.

(7)  A magistrate is not to make an order under subsection (5) unless –

(a) the informant or some other person has given the magistrate, either orally or by affidavit, any further information that the magistrate requires concerning the grounds on which the order is sought; and

(b) the magistrate is satisfied that there are reasonable grounds for making the order.

(8)  An order that a person produce a document to a police officer is to specify the time when, and the place where, the document is to be produced.

(9)  An order that a person make a document available to a police officer for inspection is to specify the time, or times, when the document is to be made available.

(10)  If a document is produced to a police officer pursuant to an order under this section, the police officer may do any one or more of the following:

(a) inspect the document;

(b) take extracts from the document;

(c) make copies of the document;

(d) retain the document if, and for so long as, retention of the document is reasonably necessary for the purposes of this Act.

(11)  If a document is made available to a police officer for inspection pursuant to an order under this section, the police officer may do any one or more of the following:

(a) inspect the document;

(b) take extracts from the document;

(c) make copies of the document.

(12)  If a police officer retains a document pursuant to an order under this section, the police officer is, on request by the person to whom the order is addressed –

(a) to give the person a copy of the document that has been certified by the police officer in writing to be a true copy of the document; and

(b) unless the person has been given a copy of the document under paragraph (a) – to permit the person to do any one or more of the following:

(i) inspect the document;

(ii) take extracts from the document;

(iii) make copies of the document.

(13)  A person is not excused from producing or making available a document when required to do so by an order under this section on the ground that –

(a) the production or making available of the document might tend to incriminate the person or render the person liable to a penalty; or

(b) the production or making available of the document would be in breach of an obligation, whether imposed by enactment or otherwise, of the person not to disclose the existence or contents of the document.

(14)  If a person produces or makes available a document pursuant to an order under this section, the production or making available of the document, or any information, document or thing obtained as a direct or indirect consequence of the production or making available of the document, is not admissible against the person in any criminal proceedings other than a proceeding for an offence against section 51 .

(15)  For the purposes of subsection (14) , proceedings on an application for a restraining order, forfeiture order or pecuniary penalty order are not criminal proceedings.

50.   Variation of production orders

If a magistrate makes a production order requiring a person to produce a document to a police officer, that person may apply to the magistrate or another magistrate for a variation of the order and, if the magistrate hearing the application is satisfied that the document is essential to the business activities of that person, the magistrate may vary the production order so that it requires that person to make the document available to a police officer for inspection.

51.   Failure to comply with production orders

A person who is required by a production order to produce a document to a police officer, or make a document available to a police officer for inspection, must not –

(a) contravene the order without reasonable excuse; or

(b) in purported compliance with the order – produce or make available a document known to the person to be false or misleading in a material particular without –

(i) indicating to the police officer to whom the document is produced or made available that it is false or misleading and the respect in which it is false or misleading; and

(ii) providing correct information to the police officer if the person is in possession of, or can reasonably acquire, the correct information.

Penalty:   –

(a) in the case of a body corporate – a fine not exceeding 500 penalty units; or

(b) in any other case – a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 5 years, or both.

Division 3 - Search powers

52.   Powers to search for, and seize, certain documents

A police officer may –

(a) enter premises; and

(b) search those premises for any property-tracking document in relation to a serious offence; and

(c) seize any document found in the course of the search that the police officer believes, on reasonable grounds, to be a property-tracking document in relation to a serious offence –

but only if the entry, search or seizure, as the case may be, is made –

(d) with the consent of the occupier of the premises; or

(e) under a search warrant issued under section 53 .

53.   Search warrants for location, &c., of property

(1)  If –

(a) a person has been convicted of a serious offence and a police officer has reasonable grounds for suspecting that there is on any premises a property-tracking document in relation to the offence; or

(b) a police officer has reasonable grounds for suspecting that a person has committed a serious offence and that there is on any premises a property-tracking document in relation to the offence –

the police officer may apply to a magistrate for a search warrant to be issued under subsection (4) in respect of those premises.

(2)  If a police officer who applies for a search warrant under this section in respect of an offence includes in the application information that the police officer has reasonable grounds for believing that –

(a) the person who was convicted of the offence, or who is believed to have committed the offence, derived a commercial or other benefit, directly or indirectly, from the commission of the offence; and

(b) property specified in the information is subject to the effective control of that person –

the magistrate may treat any document relevant to identifying, locating or quantifying that property as a property-tracking document in relation to the offence for the purposes of this section.

(3)  A magistrate may have regard to the matters referred to in section 8 (2) in determining whether to treat a document as a property-tracking document in relation to an offence.

(4)  Subject to subsection (7) , a magistrate to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorizing a police officer –

(a) to enter premises; and

(b) to search those premises for documents of the kind referred to in subsection (1) ; and

(c) to seize any document found in the course of the search that the police officer believes, on reasonable grounds, to be a document of that kind.

(5)  Nothing in this section limits any other statutory law relating to search warrants.

(6)  Schedule 1 has effect with respect to a search warrant issued under this section.

(7)  A magistrate is not to issue a search warrant under this section unless the magistrate is satisfied that –

(a) the relevant document cannot be identified or described with sufficient particularity for the purpose of obtaining a production order in respect of the document; or

(b) a production order made in respect of the relevant document has not been complied with; or

(c) a production order in respect of the relevant document would be unlikely to be effective because there are reasonable grounds to suspect that such an order would not be complied with; or

(d) the investigation in connection with which the search warrant is being sought might be seriously prejudiced if the police officer does not gain immediate access to the relevant document without notice to any person.

(8)  A search warrant issued under this section is of no effect unless –

(a) it states the purpose for which the warrant has been issued, including a reference to the nature of the relevant serious offence; and

(b) it specifies whether entry is authorized to be made at any time of the day or night, or only during specified hours of the day or night; and

(c) it contains a description of the kind of documents authorized to be seized under the warrant; and

(d) it specifies a date, being a date not later than one month after the day on which the warrant is issued, on which the warrant ceases to have effect.

(9)  If, in the course of executing a search warrant issued under this section a police officer finds a document that the police officer believes on reasonable grounds to be –

(a) a property-tracking document in relation to the relevant serious offence, although not of a kind specified in the warrant; or

(b) a property-tracking document in relation to another serious offence –

and the police officer believes, on reasonable grounds, that it is necessary to seize that document in order to prevent its concealment, loss or destruction, the warrant is taken as authorizing the police officer to seize that document.

(10)  The power conferred by this section to seize a document includes –

(a) a power to remove the document from the premises where it is found; and

(b) a power to guard the document on those premises.

54.   Telephone warrants in respect of property-tracking documents

(1)  Subject to this section –

(a) an application under section 53 (1) may be made by telephone if the applicant is of or above the rank of sergeant; and

(b) a magistrate may, under section 53 (4) , issue a search warrant that has been applied for by telephone.

(2)  A magistrate issues a search warrant that has been applied for by telephone by stating the terms of the warrant.

(3)  A magistrate is not to issue a search warrant under section 53 that has been applied for by telephone if the magistrate is of the opinion that it would be practicable in the circumstances for the police officer to apply to a magistrate for the warrant in person.

(4)  A magistrate who issues a search warrant under section 53 that has been applied for by telephone is to cause a record to be made in writing of –

(a) the name and rank of the police officer who applied for the warrant; and

(b) the location of that police officer at the time the application was made; and

(c) the reasons given by the applicant as to why it was not practicable in the circumstance for the applicant to apply to a magistrate for a warrant in person; and

(d) the terms of the warrant as stated to the police officer to whom it was issued; and

(e) the date and time the warrant was issued.

(5)  A police officer perfects a search warrant issued to the officer by telephone by –

(a) causing a record to be made in writing setting out the terms of the warrant; and

(b) endorsing the record with the name of the magistrate by whom, and the date and time when, the warrant was issued.

55.   Obstruction of persons executing search warrants

A person must not, without reasonable excuse, obstruct or hinder a police officer who is executing a search warrant issued under section 53 .

Penalty:   –

(a) in the case of a body corporate – a fine not exceeding 100 penalty units; or

(b) in any other case – a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 2 years or both.

Division 4 - Monitoring orders

56.   Monitoring orders

(1)  A magistrate may, on the application of a police officer, make an order directing a financial institution to give to a police officer information obtained by the institution about transactions conducted through an account held by a particular person with the institution.

(2)  A magistrate is not to make a monitoring order unless the magistrate is satisfied that there are reasonable grounds for suspecting that the person in respect of whose account the information is sought –

(a) has committed, or is about to commit, a serious offence; or

(b) was involved in the commission, or is about to be involved in the commission, of a serious offence; or

(c) has derived or is about to derive, directly or indirectly, a commercial or other benefit from the commission of a serious offence.

(3)  A monitoring order is to specify –

(a) the name, or names, in which the account is believed to be held; and

(b) the kind of information that the institution is required to give; and

(c) the manner in which the information is to be given.

(4)  A monitoring order is to apply in relation to transactions conducted during the period specified in the order, being a period commencing not earlier than the day on which notice of the order is given to the financial institution and ending not later than 3 months immediately after the date of the order.

(5)  If a financial institution is, or has been, subject to a monitoring order, the fact that the monitoring order has been made is to be disregarded for the purposes of the application of section 67 in relation to that institution.

(6)  A financial institution that has been given notice of a monitoring order must not knowingly contravene, or knowingly provide false or misleading information in purported compliance with, the order.

Penalty:  Fine not exceeding 1 000 penalty units.

(7)  A reference in this section to a transaction conducted through an account includes a reference to –

(a) the making of a fixed term deposit; and

(b) in relation to a fixed term deposit – the transfer of the amount deposited, or any part of it, at the end of the term.

57.   Confidentiality of monitoring orders

(1)  In this section a reference to disclosing the existence or operation of a monitoring order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the monitoring order.

(2)  A financial institution that is, or has been, subject to a monitoring order must not disclose the existence or operation of the order to any person other than –

(a) the Commissioner or a police officer; or

(b) an officer or agent of the institution for the purpose of ensuring that the order is complied with; or

(c) a barrister or solicitor for the purpose of obtaining legal advice or representation in relation of the order.

Penalty:  Fine not exceeding 1 000 penalty units.

(3)  A person referred to in subsection (2) to whom a disclosure of the existence or operation of a monitoring order has been made must not –

(a) while he or she is such a person – disclose the existence or operation of the order other than to another person referred to in subsection (2) for the purposes of –

(i) if the disclosure is made by the Commissioner or a police officer – the performance of that person's duties; or

(ii) if the disclosure is made by an officer or agent of the institution – ensuring that the order is complied with or obtaining legal advice or representation in relation to the order; or

(iii) if the disclosure is made by a barrister or solicitor – giving legal advice or making representations in relation to the order; or

(b) when he or she is no longer such a person – make a record of, or disclose, the existence or operation of the order.

Penalty:  A fine not exceeding 200 penalty units or imprisonment for a term not exceeding 10 years, or both.

(4)  A person referred to in subsection (2) (a) or (b) is not required to disclose to any court the existence or operation of a monitoring order.

(5)  Nothing in subsection (3) prevents the disclosure by a person referred to in subsection (2) (a) or (b) of the existence or operation of a monitoring order –

(a) for the purposes of, or in connection with, legal proceedings; or

(b) in the course of proceedings before a court.

PART 6 - Interstate Orders

58.   Registration of interstate orders

(1)  An interstate forfeiture order or interstate restraining order that expressly applies to property in Tasmania may be registered under this Act.

(2)  An order is taken to be registered under this Act when a copy of the order, being a copy sealed by the court that made the order, is registered in accordance with the rules of the Supreme Court.

(3)  An amendment made to an interstate forfeiture order or interstate restraining order before or after registration of the order may be registered in the same way as the order, and any such amendment is of no effect for the purposes of this Act until it is registered.

(4)  An application for registration may be made by –

(a) an authorized officer; or

(b) the person on whose application the order or amendment was made; or

(c) a person affected by the order or amendment.

59.   Effect of registration of interstate forfeiture orders

(1)  A registered interstate forfeiture order may be enforced in Tasmania as if it were a forfeiture order made under section 16 (1) at the time of registration.

(2)  This Act, other than section 72 , applies to a registered interstate forfeiture order as if it were a forfeiture order made under section 16 (1) .

(3)  A registered interstate forfeiture order does not operate so as to vest property, or any estate, interest or right in property, otherwise than in the Crown in right of Tasmania.

(4)  A registered interstate forfeiture order does not operate so as to vest property in the Crown in right of Tasmania if the order has already operated to vest the property in the Crown in some other capacity, or in some other person or entity.

60.   Effect of registration of interstate restraining orders

(1)  A registered interstate restraining order may be enforced in Tasmania as if it were a restraining order made under section 26 (2) at the time of registration.

(2)  This Act, other than sections 26 , 29 , 32 and 38 , applies to a registered interstate restraining order as if it were a restraining order made under section 26 (2) .

61.   Revocation or variation of registered orders

A court of this State is not to –

(a) revoke or vary a registered interstate forfeiture order or registered interstate restraining order; or

(b) limit the manner in which any such order applies.

62.   Duration of registration

An interstate forfeiture order or interstate restraining order ceases to be registered under this Act if –

(a) it ceases to be in force in the State in which it was made; or

(b) its registration is cancelled under this Act.

63.   Cancellation of registration

(1)  The Supreme Court is to cancel the registration of an interstate forfeiture order or interstate restraining order if the registration was improperly obtained.

(2)  The Supreme Court may cancel the registration of an interstate forfeiture order or interstate restraining order to the extent that the order is not capable of enforcement in this State.

64.   Charges on property subject to registered interstate restraining orders

(1)  If –

(a) an interstate restraining order is made against property of a person in connection with an interstate serious offence committed, or alleged to have been committed, by that person; and

(b) an interstate pecuniary penalty order is made against that person in connection with that offence; and

(c) the interstate restraining order is registered under this Act; and

(d) the interstate pecuniary penalty order is registered in a court of Tasmania under the Service and Execution of Process Act 1992 of the Commonwealth –

then, upon the registration referred to in paragraph (c) or (d) , whichever last occurs, a charge is created on the property to secure payment of the amount due under the interstate pecuniary penalty order.

(2)  If a charge is created under subsection (1) on property of a person to secure payment of the amount due under an interstate pecuniary penalty order, the charge ceases to have effect in respect of the property –

(a) upon the interstate pecuniary penalty order ceasing to have effect; or

(b) upon the discharge of the interstate pecuniary penalty order by a court hearing an appeal against the making of the order; or

(c) upon payment of the amount due under the interstate pecuniary penalty order; or

(d) upon the person becoming bankrupt; or

(e) upon the sale or other disposition of the property –

(i) under an order made by a court under the corresponding law of the State in which the interstate pecuniary penalty order was made; or

(ii) by the owner of the property with the consent of the court that made the interstate pecuniary penalty order; or

(iii) if the interstate restraining order directed a person to take control of the property – by the owner of the property with the consent of that person; or

(f) upon the sale of the property to a purchaser in good faith for value who, at the time of purchase, had no notice of the charge –

whichever first occurs.

(3)  A charge created on property under subsection (1) –

(a) is subject to every encumbrance on the property that came into existence before the charge and that would, apart from this subsection, have priority over the charge; and

(b) has priority over all other encumbrances; and

(c) subject to subsection (2) , is not affected by any change of ownership of the property.

(4)  If a charge is created under subsection (1) on property of a particular kind and a law of Tasmania provides for the registration of title to, or charges over, property of that kind –

(a) the Public Trustee or an authorized officer may cause the charge so created to be registered under the provisions of that law; and

(b) if the charge is so registered – a person who purchases or otherwise acquires an interest in the property after the registration of the charge is, for the purposes of subsection (2) (f) , taken to have had notice of the charge at the time of the purchase or acquisition.

(5)  If a charge under this section relates to land under the Land Titles Act 1980 , the charge is of no effect until it is registered under that Act.

65.   Powers of Public Trustee in relation to interstate restraining orders

If –

(a) an interstate restraining order is registered under this Act; and

(b) the order directs an official of the State in which it was made to take control of property –

the Public Trustee may, by agreement with that official, exercise the same powers in relation to the property as that official would have been able to exercise if the property were located in that State.

66.   Interim registration of facsimile copies

(1)  A facsimile copy of –

(a) a sealed copy of an interstate forfeiture order or interstate restraining order; or

(b) a sealed copy of any amendments made to such an order –

is to be regarded for the purposes of this Act as the same as the sealed copy if the facsimile copy is itself certified in accordance with the rules of the Supreme Court.

(2)  Registration effected by means of a facsimile copy ceases to have effect at the end of the period of 5 days commencing on the day of registration unless a sealed copy that is not a facsimile copy has been registered by that time.

(3)  Registration of the sealed copy before the end of the period referred to in subsection (2) has effect on and from the day of registration of the facsimile copy.

(4)  Although registration of a facsimile copy of an interstate forfeiture order ceases to have effect in the circumstances mentioned in subsection (2) , any forfeiture already made in relation to the order is not affected.

PART 7 - Offences

67.   Money laundering

(1)  In this section –

proceeds of crime includes the proceeds of an interstate serious offence;

transaction includes the receiving or making of a gift.

(2)  A person must not engage in money laundering.

Penalty:   –

(a) in the case of a body corporate – a fine not exceeding 6 000 penalty units; or

(b) in any other case – a fine not exceeding 2 000 penalty units or imprisonment for a term not exceeding 20 years, or both.

(3)  A person is taken to engage in money laundering if and only if –

(a) the person engages, directly or indirectly, in a transaction that involves money or other property that is the proceeds of crime; or

(b) the person receives, possesses, conceals, disposes of or brings into this State any money or other property that is the proceeds of crime –

and the person knows, or ought reasonably to know, that the money or other property is derived or realized, directly or indirectly, from some form of unlawful activity.

68.   Prosecution of offences

(1)  An offence against section 34 , 51 , 56 , 57 , 67 , or 70 is an indictable offence.

(2)  Notwithstanding that the offences referred to in subsection (1) are indictable offences, a court of summary jurisdiction may hear and determine proceedings in respect of an offence against section 34 , 51 , 56 , 57 , or 70 if –

(a) the court is satisfied that it is appropriate to do so; and

(b) the defendant and prosecutor consent.

(3)  A court of summary jurisdiction that convicts a person of an offence referred to in subsection (2) may –

(a) if the offence is against section 56 – impose a fine not exceeding 100 penalty units; or

(b) if the offence is against section 34 , 51 , 57 , or 70 – impose a fine not exceeding 100 penalty units in the case of a body corporate, and a fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months, or both, in any other case.

69.   Conduct by directors, servants and agents

(1)  If it is necessary to establish, for the purposes of this Act, the state of mind of a body corporate in relation to particular conduct, it is sufficient to show –

(a) that the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and

(b) that the director, servant or agent had the state of mind.

(2)  Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is for the purposes of this Act, taken to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

(3)  If it is necessary to establish, for the purposes of this Act, the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show –

(a) that the conduct was engaged in by a servant or agent of the person within the scope of his or her actual or apparent authority; and

(b) that the servant or agent had the state of mind.

(4)  Any conduct engaged in on behalf of a person other than a body corporate by a servant or agent of the person within the scope of the servant's or agent's apparent authority is, for the purposes of this Act, taken to have been engaged in also by the first-mentioned person unless the first-mentioned person established that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

(5)  If –

(a) a person other than a body corporate is convicted of an offence under this Act; and

(b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted –

the person is not liable to be punished by imprisonment for that offence.

(6)  A reference in subsection (1) or (3) to the state of mind of a person includes a reference to –

(a) the knowledge, intention, opinion, belief or purpose of the person; and

(b) the person's reasons for the intention, opinion, belief or purpose.

(7)  A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

PART 8 - Miscellaneous

70.   Dealings with forfeited property

(1)  In this section registrable property means property, title to which is passed by registration on a register kept under a law of Tasmania.

(2)  A person who knows that a forfeiture order has been made in respect of registrable property must not, unless the forfeiture order has been discharged, dispose of or otherwise deal with the property before the State's interest has been registered on the appropriate register.

Penalty:   –

(a) in the case of a body corporate – a fine not exceeding 500 penalty units; or

(b) in any other case – a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 5 years, or both.

(3)  If property has been disposed of or otherwise dealt with contrary to subsection (2) , the disposal or dealing is of no effect.

71.   Standard of proof

Subject to section 14 , a court is to decide any question of fact on an application under this Act on the balance of probabilities.

72.   Appeals

(1)  A person who has an interest in property that is subject to a forfeiture order may appeal against the order –

(a) in the case of a person convicted of the offence in reliance on which the order was made – in the same manner as if the order were the sentence, or part of the sentence, imposed on the person in respect of the offence; or

(b) in any other case – in the same manner as if the person had been convicted of the offence in reliance on which the order was made and the order were the sentence, or part of the sentence, imposed on the person in respect of the offence.

(2)  A person against whom a pecuniary penalty order is made may appeal against the order in the same manner as if it were the sentence, or part of the sentence, imposed on the person in respect of the offence in reliance on which the order was made.

(3)  If a court –

(a) makes a pecuniary penalty order; and

(b) makes an order under section 23 (2) declaring that particular property is available to satisfy the order –

a person who has an interest in the property may appeal against the order under section 23 (2) in the same manner as if the person had been convicted of the offence in reliance on which the order was made and the order were the sentence, or part of the sentence, imposed on the person in respect of the offence.

(4)  On an appeal against –

(a) a forfeiture order; or

(b) a pecuniary penalty order; or

(c) an order made under section 23 (2) –

the order may be confirmed, discharged or varied.

(5)  An authorized officer may appeal against –

(a) a forfeiture order; or

(b) a pecuniary penalty order; or

(c) an order under section 23 (2) ; or

(d) the refusal of a court to make such an order –

in the same manner as if the order were, or were part of, a sentence imposed in respect of the offence in reliance on which the order was made.

(6)  Nothing in this section restricts or affects any right of appeal that a person would have apart from this section.

73.   Constitution of court

If an application for a confiscation order in respect of a person's conviction of a serious offence is made to the court before which the person was convicted of the offence –

(a) the application may be dealt with by that court; and

(b) any function or power may be exercised and any duty may be performed by that court in relation to the confiscation order –

whether or not that court is constituted in the same way as it was constituted when the person was convicted of the offence.

74.   Limitation on powers of courts of summary jurisdiction

(1)  In this section specified amount means –

(a) $20 000; or

(b) if another amount is prescribed – the prescribed amount.

(2)  A court of summary jurisdiction is not, in relation to the conviction of a person for a particular offence, to make a forfeiture order in respect of property unless it is satisfied that the value of the property, together with the value of any other property that is the subject of any other undischarged forfeiture order made by that court in relation to that conviction, does not exceed the specified amount.

(3)  A court of summary jurisdiction is not, in relation to the conviction of a person for a particular offence, to make a pecuniary penalty order against that person unless it is satisfied that the amount payable under the order, together with the amount payable under any other undischarged pecuniary penalty order made against that person by that court in relation to that conviction, does not exceed the specified amount.

(4)  A court of summary jurisdiction is not to make a forfeiture order in respect of real property, except in such circumstances as may be prescribed.

(5)  For the purposes of this section, the value of property is its value as determined by the court of summary jurisdiction.

75.   Interstate operation of forfeiture or restraining orders

(1)  In this section, corresponding State means a State for which a declaration of a corresponding law is in force under this Act.

(2)  For the purpose of enabling a forfeiture order or restraining order to be registered under a corresponding law of another State, the order may be expressed to apply to property in that State.

(3)  A forfeiture order or restraining order does not apply to property in a corresponding State except in so far as –

(a) a corresponding law of that State provides that the order has effect in that State following registration under that law; or

(b) the property was movable property and was located outside that State when the order took effect.

76.   Costs incurred on variation of forfeiture or restraining orders on applications by third parties

(1)  In this section –

person includes the State;

third party, in relation to a forfeiture order or restraining order, means a person who is not the subject of the order;

vary includes limit the manner in which an order applies.

(2)  If –

(a) the Supreme Court makes an order under this Act varying a forfeiture order or restraining order that is registered under a corresponding law of another State; and

(b) the variation is made on the application of a third party and affects the interests of the third party in relation to property in that other State –

the Supreme Court may, having regard to any matters it considers appropriate, order that all the costs incurred by the third party in applying for and obtaining the variation, or such part of those costs as is determined by the Court, be paid to the third party.

(3)  The costs are to be paid by the person specified by the Supreme Court.

(4)  The Supreme Court may direct in what manner the costs are to be ascertained.

(5)  Nothing in this section restricts or affects the powers of the Supreme Court to award costs under any other law.

77.   Operation of other laws not affected

Nothing in this Act restricts or affects –

(a) the operation of any other law of Tasmania providing for the forfeiture of property or the imposition of pecuniary penalties; or

(b) the remedies available to the State, apart from this Act, for the enforcement of its rights and the protection of its interests.

78.   Costs

If –

(a) a person brings, or appears at, proceedings under this Act before a court in order –

(i) to prevent a forfeiture order or restraining order from being made against any property of that person; or

(ii) to have any property of that person excluded from a forfeiture order or restraining order; and

(b) that person is successful in those proceedings; and

(c) the court is satisfied that that person was not involved in any way in the commission of the offence in respect of which the forfeiture order or restraining order was sought or made –

the court may order the State to pay all costs incurred by that person in connection with the proceedings or such part of those costs as is determined by the court.

79.   Crime (Confiscation of Profits) Account

(1)  In this section –

account means the Crime (Confiscation of Profits) Account established under subsection (2) ;

equitable sharing arrangement means an arrangement under which either or both of the following happen:

(a) this State pays to another State a proportion of the proceeds of any unlawful activity recovered by this State under this Act by reason of a contribution made by that other State or the Commonwealth, as the case may be, to the recovery of those proceeds or to the investigation or prosecution of that unlawful activity;

(b) another State or the Commonwealth pays to this State a proportion of the proceeds of any unlawful activity recovered by that other State or the Commonwealth, as the case may be, by reason of a contribution made by this State to the recovery of those proceeds or to the investigation or prosecution of that unlawful activity.

(2)  There is to be established in the Special Deposits and Trust Fund an account to be called the Crime (Confiscation of Profits) Account.

(3)  Subject to subsection (4) , there is to be paid into the account –

(a) all money that vests contingently in the State under this Act; and

(b) all money recovered by the State under this Act; and

(c) all money received by the State under the equitable sharing arrangement.

(4)  The Treasurer may, after consulting the Attorney-General, direct that any money recovered by the State under this Act is to be dealt with otherwise than in accordance with subsection (3) if that money –

(a) is in the form of coins or banknotes that have historical, numismatic or other special significance; or

(b) is in the form of foreign currency; or

(c) is in such other form as may be prescribed –

but if, in accordance with a direction given under this subsection, any such money is sold or, as the case may be, converted into Australian currency, the net proceeds of the sale or conversion are to be paid into the account.

(5)  The Treasurer, on the advice of the Attorney-General, may authorize the making of such payments from the account as –

(a) will enable the State to comply with any order to pay a person the declared value of an interest in property under section 18 (5) ; and

(b) will enable the Attorney-General to make any payment required under section 19 ; and

(c) will enable the State to carry out any undertaking given on its behalf under section 27 (7) ; and

(d) the Treasurer considers appropriate under the equitable sharing arrangement; and

(e) are required for any prescribed purpose.

(6)  If there is insufficient money in the account to enable the State to –

(a) carry out an undertaking given on its behalf under section 27 (7) ; or

(b) make any other payment that the State is required or obliged to make under this Act –

there is to be paid into the account from the Consolidated Fund, without further appropriation than this subsection, such amount as will enable the undertaking to be carried out or the payment to be made.

(7)  The money standing to the credit of the account from time to time is, subject to subsection (5) and the approval of the Treasurer, to be paid into the Criminal Injuries Compensation Fund established under the Criminal Injuries Compensation Act 1976 .

80.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  The regulations may be made so as to –

(a) apply generally or be limited in their application by reference to specified exceptions or factors; or

(b) apply differently according to different factors of a specified kind.

(3)  Regulations declaring a kind of order to be within a definition may do so by reference to the interstate serious offences involved.

(4)  Regulations declaring a law to be a corresponding law may provide that the declaration applies only in respect of prescribed provisions of this Act.

82.   

83.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –

(a) the administration of this Act is assigned to the Minister for Justice; and

(b) the Department responsible to the Minister for Justice in relation to the administration of this Act is the Department of Justice.

SCHEDULE 1 - Provisions Relating to Search Warrants

Sections 40 (5) and 53 (6)

1.   Applications for warrants

(1) Except as provided by sections 41 and 54 , an application for a search warrant is to be made in writing.

(2) A magistrate is not to issue a search warrant unless –

(a) the application for the warrant sets out the grounds for seeking the warrant; and

(b) the applicant has given the magistrate, either orally or in writing, any further information the magistrate requires concerning the grounds for seeking the warrant; and

(c) the information given by the applicant is –

(i) if the application is made by the applicant in person – verified before the magistrate on oath or by affidavit; or

(ii) if the application is made by the applicant by telephone – verified by a statement to the magistrate that the information is true.

2.   Record of proceedings before magistrate

(1) A magistrate who issues a search warrant is to cause a record to be made of all relevant particulars of the grounds the magistrate has relied on to justify the issue of the warrant.

(2) Any matter that might disclose the identity of a person is not to be recorded pursuant to this clause if the magistrate is satisfied that the safety of any person might thereby be jeopardized.

3.   Duty to show warrants

(1) In this clause occupier includes a person in charge of premises.

(2) A person executing a search warrant is to produce the warrant for inspection by an occupier of the premises if requested to do so by that occupier.

4.   Use of force to enter premises, &c.

(1) A person authorized to enter premises pursuant to a search warrant may use such force as is reasonably necessary for the purpose of entering the premises.

(2) A person authorized to search premises pursuant to a search warrant may, if it is reasonably necessary to do so, break open anything on the premises in which any property or any document, as the case may be, may be stored or concealed.

5.   Use of assistants to execute warrants

A person may execute a search warrant using such assistance as the person considers necessary.

6.   Expiry of warrants

A search warrant ceases to have effect –

(a) on the date specified in the warrant as the date on which it ceases to have effect; or

(b) if it is withdrawn before that date by the magistrate who issued the warrant; or

(c) when it is executed –

whichever first occurs.

7.   Reports to magistrates on execution of warrants, &c.

(1) The person to whom a search warrant is issued is to furnish a report in writing to the magistrate who issued the warrant –

(a) stating whether or not the warrant has been executed; and

(b) if the warrant has been executed – setting out briefly the result of the execution of the warrant, including a brief description of anything seized; and

(c) if the warrant has not been executed – setting out briefly the reasons why the warrant has not been executed.

(2) A report with respect to a search warrant is to be made within the period of 10 days immediately after the execution of the warrant or the expiry of the warrant, whichever first occurs.

8.   Death, absence, &c., of magistrate who issued warrant

If the magistrate who issued a search warrant has died, has ceased to be a magistrate, or is absent, a report required to be furnished to that magistrate pursuant to clause 7 is to be furnished to any other magistrate.

9.   Defects in warrants

A search warrant is not invalidated by any defect, other than a defect that affects the substance of the warrant in a material particular.