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CRIMINAL PROCEEDS CONFISCATION AND OTHER ACTS AMENDMENT BILL 2008

          Queensland



Criminal Proceeds
Confiscation and Other Acts
Amendment Bill 2008

 


 

 

Queensland Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Contents Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 2 Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 3 Act amended in pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4 Insertion of new s 5A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 5A Territorial application of Act . . . . . . . . . . . . . . . . . . . . 8 5 Amendment of s 16 (Meaning of serious crime related activity). . 9 6 Amendment of s 17 (Meaning of serious criminal offence) . . . . . 9 7 Amendment of s 20 (Meaning of effective control of property). . . 10 8 Amendment of s 28 (Application for restraining order) . . . . . . . . . 10 9 Amendment of s 29 (Affidavit) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 10 Amendment of s 37 (Supreme Court may make other orders) . . 11 11 Insertion of new s 37A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 37A Hearing of application. . . . . . . . . . . . . . . . . . . . . . . . . 12 12 Replacement of s 38 (Particular orders Supreme Court may make) ........................................ 13 38 Administration orders Supreme Court may make. . . . 13 13 Insertion of new s 38A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 38A Investigation orders Supreme Court may make . . . . . 14 14 Omission of ch 2, pt 3, div 4, sdiv 1, s 38A (Meaning of judicial registrar for subdiv 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 15 Replacement of s 39 (Judicial registrar's power to conduct examinations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 39 Court officer's power to conduct examinations. . . . . . 16 16 Amendment of s 39B (Examination to take place in private) . . . . 16 17 Amendment of s 39C (Role of the examinee's lawyer). . . . . . . . . 16 18 Amendment of s 39D (Recording evidence). . . . . . . . . . . . . . . . . 16

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Contents 19 Amendment of s 41 (Offence to contravene examination order) . 17 20 Insertion of new s 41A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 41A Use and dissemination of examination information . . 17 21 Insertion of new s 42A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 42A Offence to contravene property particulars order. . . . 18 22 Amendment of s 45 (Notice of restraining order and other orders) ....................................... 18 23 Amendment of s 47 (Supreme Court may exclude prescribed respondent's property from restraining order) . . . . . . . . . . . . . . . 19 24 Amendment of s 49 (Supreme Court may exclude other property from restraining order) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 25 Insertion of new of s 58A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 58A Forfeiture order relating to external serious crime related activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 26 Amendment of s 65 (Exclusion of property from forfeiture order application) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 27 Amendment of s 66 (Exclusion of property from forfeiture order). 21 28 Amendment of s 71 (Exclusion of value of innocent interest from forfeiture order). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 29 Amendment of s 78 (Making of proceeds assessment order) . . . 22 30 Amendment of s 80 (Proceeds assessment order increase if forfeiture order discharged) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 31 Amendment of s 83 (How particular amounts may be treated) . . 24 32 Amendment of s 88 (Charge on property) . . . . . . . . . . . . . . . . . . 24 33 Amendment of s 103 (Meaning of effective control) . . . . . . . . . . . 25 34 Amendment of s 126 (Conditions about particular payments out of restrained property) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 35 Amendment of s 129 (Supreme Court may make other orders) . 26 36 Insertion of new s 129A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 129A Hearing of application. . . . . . . . . . . . . . . . . . . . . . . . . 27 37 Replacement of s 130 (Particular orders Supreme Court may make) ......................................... 27 130 Administration orders Supreme Court may make. . . . 28 38 Insertion of new s 130A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 130A Investigation orders Supreme Court may make . . . . . 29 39 Omission of ch 3, pt 3, div 5, sdiv 1, s 130A (Meaning of judicial registrar for subdiv 1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 40 Replacement of s 131 (Judicial registrar's power to conduct examinations) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Page 2

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Contents 131 Court officer's power to conduct examinations. . . . . . 30 41 Amendment of s 131B (Examination to take place in private) . . . 30 42 Amendment of s 131C (Role of the examinee's lawyer). . . . . . . . 31 43 Amendment of s 131D (Recording evidence). . . . . . . . . . . . . . . . 31 44 Amendment of s 133 (Offence to contravene examination order) 31 45 Insertion of new s 133A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 133A Use and dissemination of examination information . . 32 46 Insertion of new s 134A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 134A Offence to contravene property particulars order. . . . 33 47 Amendment of s 135 (Notice of restraining order) . . . . . . . . . . . . 33 48 Amendment of s 139 (Supreme Court may exclude prescribed respondent's property from restraining order) . . . . . . . . . . . . . . . 33 49 Amendment of s 140 (Supreme Court may exclude other property from restraining order) . . . . . . . . . . . . . . . . . . . . . . . . . . 33 50 Insertion of new ch 3, pt 4, div 2A . . . . . . . . . . . . . . . . . . . . . . . . 34 Division 2A Tainted property substitution declaration 153A Definitions for div 2A. . . . . . . . . . . . . . . . . . . . . . . . . . 34 153B References to property that is not available for forfeiture ............................. 34 153C Application for tainted property substitution declaration ............................ 34 153D Court may make tainted property substitution declaration ............................. 35 153E Restraining order for property that may become subject to a tainted property substitution declaration . 36 51 Amendment of s 158 (Making an innocent interest exclusion order) ........................................ 38 52 Amendment of s 186 (Pecuniary penalty order increase if forfeiture order discharged) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 53 Amendment of s 236 (Cancellation of filing). . . . . . . . . . . . . . . . . 39 54 Insertion of new ch 8, pt 2, div 1, hdg and div 2, hdg . . . . . . . . . . 39 55 Amendment of s 249 (Communication of information by financial institutions to particular officers). . . . . . . . . . . . . . . . . . . . . . . . . . 39 56 Insertion of new ch 8, pt 2, div 3. . . . . . . . . . . . . . . . . . . . . . . . . . 40 Division 3 Notices to financial institutions 249A Definition for div 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 249B Giving notice to financial institution . . . . . . . . . . . . . . 40 249C Prohibition on disclosure . . . . . . . . . . . . . . . . . . . . . . 41 Page 3

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Contents 249D Protection from suits etc. in relation to action taken under s 249B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 249E Financial institution must comply with a notice. . . . . . 42 57 Amendment of s 250 (Money laundering) . . . . . . . . . . . . . . . . . . 42 58 Insertion of new s 256A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 256A Consent orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 59 Replacement of s 257 (Restriction on functions) . . . . . . . . . . . . . 44 257 Restriction on functions . . . . . . . . . . . . . . . . . . . . . . . 44 60 Omission of s 266 (Review of Act) . . . . . . . . . . . . . . . . . . . . . . . . 44 61 Amendment of ch 12, hdg (Transitional provisions, repeal and amendments) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 62 Amendment of ch 12, pt 1, hdg (Transitional provisions) . . . . . . . 44 63 Insertion of new ch 12, pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Part 3 Transitional provisions for the Criminal Proceeds Confiscation and Other Acts Amendment Act 2008 283 Definition for this part . . . . . . . . . . . . . . . . . . . . . . . . . 45 284 Property controlled by public trustee . . . . . . . . . . . . . 45 285 Proceeds assessment order relating to an external serious crime related activity . . . . . . . . . . . . . . . . . . . 45 286 Charges on property . . . . . . . . . . . . . . . . . . . . . . . . . 45 287 Orders under ss 37 and 129. . . . . . . . . . . . . . . . . . . . 45 288 Exclusion of property from orders . . . . . . . . . . . . . . . 46 289 Transitional provision for amendment of definition of dealing ................................. 46 64 Amendment of schedule 1 (Examples) . . . . . . . . . . . . . . . . . . . . 47 65 Amendment of schedule 1 (Examples) . . . . . . . . . . . . . . . . . . . . 47 66 Amendment of sch 6 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 47 Part 3 Amendment of Fair Trading Act 1989 67 Act amended in pt 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 68 Amendment of s 71A (Exemptions from division for particular contracts or types of contract) . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 69 Insertion of new pt 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Part 9 Transitional provision for Criminal Proceeds Confiscation and Other Acts Amendment Act 2008 118 Existing exemptions and applications for exemptions for section 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Page 4

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Contents Part 4 Amendment of Security Providers Act 1993 70 Act amended in pt 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 71 Amendment of s 10 (Application) . . . . . . . . . . . . . . . . . . . . . . . . . 51 72 Amendment of s 11 (Entitlement to licences--individuals) . . . . . 51 73 Amendment of s 13 (Entitlement to licences--corporations or firms) ......................................... 51 74 Amendment of s 21 (Grounds for suspension, cancellation or refusal to renew). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 75 Insertion of new s 21A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 21A Approved security industry association must give notice of persons whose membership of the association ends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 76 Insertion of new s 25B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 25B Approval of security industry associations . . . . . . . . . 53 77 Amendment of pt 2, div 6, hdg (Appeals against licence decisions) ..................................... 53 78 Amendment of s 26 (Right to appeal to the Court). . . . . . . . . . . . 54 79 Amendment of sch 2 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 54 Part 5 Amendment of Trusts Act 1973 80 Act amended in pt 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 81 Amendment of s 5 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 55 82 Amendment of s 67 (Protection of trustees by means of advertisements) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 83 Renumbering of pts 9 and 10 and ss 107 to 115 . . . . . . . . . . . . . 55 84 Insertion of new pt 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Part 9 Gifts by particular trusts for philanthropic purposes 107 Definitions for pt 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 108 Prescribed trust--trust instrument containing express power to give to eligible recipients . . . . . . . . 56 109 Prescribed trust--trust instrument not containing express power to give to eligible recipients . . . . . . . . 56 110 Ancillary provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . 57 85 Amendment of pt 11 hdg as renumbered. . . . . . . . . . . . . . . . . . . 58 86 Insertion of new pt 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Part 12 Transitional provisions for Criminal Proceeds Confiscation and Other Acts Amendment Act 2008 120 Definitions for pt 12. . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Page 5

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Contents 121 Application of pt 9 to existing trusts . . . . . . . . . . . . . . 59 122 Validation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Page 6

 


 

2008 A Bill for An Act to amend the Criminal Proceeds Confiscation Act 2002, the Fair Trading Act 1989, the Security Providers Act 1993 and theTrusts Act 1973 for particular purposes

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 Clause 1 Short title 3 This Act may be cited as the Criminal Proceeds Confiscation 4 and Other Acts Amendment Act 2008. 5 Clause 2 Commencement 6 This Act commences on a day to be fixed by proclamation. 7 Part 2 Amendment of Criminal 8 Proceeds Confiscation Act 9 2002 10 Clause 3 Act amended in pt 2 11 This part amends the Criminal Proceeds Confiscation Act 12 2002. 13 Clause 4 Insertion of new s 5A 14 After section 5-- 15 insert-- 16 `5A Territorial application of Act 17 `(1) This Act applies both within and outside Queensland. 18 `(2) This Act applies outside Queensland to the full extent of the 19 extraterritorial legislative power of the Parliament.'. 20 Page 8

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 5] Clause 5 Amendment of s 16 (Meaning of serious crime related 1 activity) 2 (1) Section 16, heading, after `activity'-- 3 insert-- 4 `and external serious crime related activity' 5 (2) Section 16-- 6 insert-- 7 `(3) An external serious crime related activity is a serious crime 8 related activity arising out of an offence under the law of the 9 Commonwealth or a place outside Queensland, including 10 outside Australia, that, if the offence had been committed in 11 Queensland, would be a serious criminal offence.'. 12 Clause 6 Amendment of s 17 (Meaning of serious criminal offence) 13 (1) Section 17(1)(c)-- 14 renumber as section 17(1)(d). 15 (2) section 17(1)-- 16 insert-- 17 `(c) an offence under the law of the Commonwealth or a 18 place outside Queensland, including outside Australia, 19 that, if the offence had been committed in Queensland, 20 would be an offence mentioned in paragraph (a) or (b); 21 or'. 22 (3) Section 17(1)(d) as renumbered-- 23 omit, insert-- 24 `(d) an ancillary offence to an offence mentioned in 25 paragraph (a), (b) or (c) including an offence that would 26 be an ancillary offence to an offence mentioned in 27 paragraph (c) if the offence had been committed in 28 Queensland.'. 29 Page 9

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 7] Clause 7 Amendment of s 20 (Meaning of effective control of 1 property) 2 Section 20-- 3 insert-- 4 `(5) Subsection (6) applies if-- 5 (a) a restraining order is made for particular property 6 because a person to whom the restraining order relates 7 has effective control of the property; and 8 (b) the restraining order directs the public trustee to take 9 control of the property. 10 `(6) For the purposes of the Supreme Court's power to make 11 further orders under this chapter in relation to the property in 12 reliance, directly or indirectly, on a provision of this Act that 13 mentions property that is, or is not, under the effective control 14 of the person, the property is taken to continue to be under the 15 effective control of the person.'. 16 Clause 8 Amendment of s 28 (Application for restraining order) 17 (1) Section 28(4)-- 18 renumber as section 28(5). 19 (2) Section 28-- 20 insert-- 21 `(4) An application for a restraining order that relates to property 22 derived from external serious crime related activity may be 23 made only if the person whose property it is lives in 24 Queensland or the property is situated in Queensland.'. 25 Clause 9 Amendment of s 29 (Affidavit) 26 Section 29-- 27 insert-- 28 `(2) Also, for property derived from external serious crime related 29 activity, the affidavit must state that the authorised 30 Page 10

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 10] commission officer or police officer has made due enquiry 1 and is satisfied that no action has been taken under a law of 2 the Commonwealth or any place outside Queensland, 3 including outside Australia, against property of the prescribed 4 respondent that is the subject of the application as a result of 5 the external serious crime related activity.'. 6 Clause 10 Amendment of s 37 (Supreme Court may make other 7 orders) 8 (1) Section 37(1), `section 38.'-- 9 omit, insert-- 10 `sections 38 and 38A.'. 11 (2) Section 37(2), `section 38(h)'-- 12 omit, insert-- 13 `section 38(1)(f)'. 14 (3) Section 37(4), after `an order'-- 15 insert-- 16 `, other than an investigation order,'. 17 (4) Section 37(5) to (7)-- 18 omit, insert-- 19 `(5) Another person may apply for an order, other than an 20 investigation order, under this section with the Supreme 21 Court's leave. 22 `(6) An applicant under subsection (4) must give notice of the 23 making of the application to each other person who may apply 24 under subsection (4) for an order under this section. 25 `(7) An applicant under subsection (5) must give notice of the 26 making of the application to each person who may apply 27 under subsection (4) for an order under this section. 28 `(8) The State may apply for an investigation order. 29 `(9) The State must give notice of an application under subsection 30 (8)-- 31 Page 11

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 11] (a) to the person to whom the order is to be directed if the 1 order is to be made under section 38A(1)(a), (b), or (c); 2 or 3 (b) to the person whose property is to be seized if the order 4 is made under section 38A(1)(d). 5 `(10) Subsections (6), (7) and (9) do not apply to an application for 6 an order under this section made in a proceeding on an 7 application for a restraining order that is made without notice 8 to any person to whom it relates. 9 `(11) Also, subsection (9) does not apply to an application for an 10 investigation order of which notice does not have to be given 11 because of section 37A(2).'. 12 Clause 11 Insertion of new s 37A 13 After section 37-- 14 insert-- 15 `37A Hearing of application 16 `(1) The Supreme Court must not hear an application for an order 17 under section 37 unless satisfied the person who is, or whose 18 property is, the subject of the application has received 19 reasonable notice of the application. 20 `(2) Despite subsection (1), the court must consider an application 21 for an investigation order without notice having been given if 22 the DPP asks the court to do so. 23 `(3) However, the Supreme Court may, at any time before finally 24 deciding the application, direct the State to give notice of the 25 application to a stated person or class of persons in the way, 26 and within the time, the court considers appropriate. 27 `(4) A person who is, or whose property is, the subject of the 28 application, and anyone else who claims to have an interest in 29 the property, may appear at the hearing of the application.'. 30 Page 12

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 12] Clause 12 Replacement of s 38 (Particular orders Supreme Court 1 may make) 2 Section 38-- 3 omit, insert-- 4 `38 Administration orders Supreme Court may make 5 `(1) The court may make any of the following orders under section 6 37 (each an administration order)-- 7 (a) an order varying the property restrained under the 8 restraining order; 9 (b) an order imposing additional conditions on the 10 restraining order or varying a condition of the order; 11 (c) an order about the performance of an undertaking given 12 in relation to the restraining order for the payment of 13 damages or costs; 14 (d) if the restraining order directs the public trustee to take 15 control of property, an order-- 16 (i) regulating the way the public trustee may perform 17 functions under the restraining order; or 18 (ii) deciding any question about the property, including 19 a question affecting the liabilities of the owner of 20 the property or the functions of the public trustee; 21 (e) an order requiring a person whose property is restrained 22 under the restraining order to do anything necessary or 23 convenient to bring the property within the State; 24 (f) an order for the payment to Legal Aid, from property 25 restrained under the restraining order, of expenses 26 payable by the person whose property is restrained 27 because-- 28 (i) the person is a party to a proceeding under this 29 Act; or 30 (ii) the person is a defendant in a criminal proceeding, 31 including any proceeding on appeal against 32 conviction or sentence. 33 Page 13

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 13] `(2) A person must not contravene an order mentioned in 1 subsection (1)(e). 2 Maximum penalty--100 penalty units or 2 years 3 imprisonment.'. 4 Clause 13 Insertion of new s 38A 5 Chapter 2, part 3, division 3-- 6 insert-- 7 `38A Investigation orders Supreme Court may make 8 `(1) Also, the court may make any of the following orders under 9 section 37 (each an investigation order)-- 10 (a) an order (examination order) requiring a person whose 11 property is restrained under the restraining order or a 12 stated person to attend for examination on oath before 13 the court or a court officer about the following-- 14 (i) the affairs of any person whose property is 15 restrained under the restraining order; 16 (ii) the nature and location of any property of a person 17 whose property is restrained under the restraining 18 order; 19 (iii) the nature and location of any property restrained 20 under the restraining order that the applicant for 21 the order reasonably suspects is serious crime 22 derived property; 23 (b) an order (also an examination order) requiring the 24 spouse of a person whose property is restrained under 25 the restraining order to attend for examination on oath 26 before the court or a court officer about the spouse's 27 affairs, including the nature and location of property in 28 which the spouse or the person has an interest; 29 (c) an order (property particulars order) directing any of 30 the following to give to the commission within a stated 31 time a sworn statement of particulars of, or of dealings 32 Page 14

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 14] with, any property (whether or not the restrained 1 property) as the court considers appropriate-- 2 (i) a person whose property is restrained under the 3 restraining order; 4 (ii) a person whose property the restrained property 5 was at any time before the restraining order was 6 made; 7 (iii) if the person mentioned in subparagraph (i) or (ii) 8 is or was a corporation--an executive officer of the 9 corporation; 10 (d) an order (property seizure order) requiring or 11 authorising a commission officer or a police officer to 12 seize property restrained under the restraining order. 13 Note-- 14 See sections 43 and 44 for the general effect of a property 15 seizure order. 16 `(2) An order mentioned in subsection (1)(d) may state the powers 17 the commission officer or police officer may exercise for 18 giving effect to the order. 19 `(3) Subsection (4) applies if an examination order is made 20 without notice of the application for the order being given to a 21 person required to attend for examination. 22 `(4) The examination must not be conducted less than 7 days after 23 the day on which the examination order is made, unless the 24 court considers it appropriate for the examination to be 25 conducted at an earlier time.'. 26 Clause 14 Omission of ch 2, pt 3, div 4, sdiv 1, s 38A (Meaning of 27 judicial registrar for subdiv 1) 28 Chapter 2, part 3, division 4, subdivision 1, section 38A-- 29 omit. 30 Page 15

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 15] Clause 15 Replacement of s 39 (Judicial registrar's power to 1 conduct examinations) 2 Section 39-- 3 omit, insert-- 4 `39 Court officer's power to conduct examinations 5 `(1) This section applies if a court officer conducts an examination 6 under an examination order. 7 `(2) The court officer constitutes, and may exercise all the 8 jurisdiction and powers of, the court. 9 `(3) However, the court officer may not exercise any power of the 10 court to punish for contempt.'. 11 Clause 16 Amendment of s 39B (Examination to take place in 12 private) 13 Section 39B(2), `or judicial registrar'-- 14 omit, insert-- 15 `or court officer'. 16 Clause 17 Amendment of s 39C (Role of the examinee's lawyer) 17 Sections 39C, `or judicial registrar'-- 18 omit, insert-- 19 `or court officer'. 20 Clause 18 Amendment of s 39D (Recording evidence) 21 (1) Section 39D, `or judicial registrar'-- 22 omit, insert-- 23 `or court officer'. 24 (2) Section 39D(3)(b), `in the court's or judicial registrar's 25 presence'-- 26 Page 16

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 19] omit, insert-- 1 `in the court's and court officer's presence'. 2 Clause 19 Amendment of s 41 (Offence to contravene examination 3 order) 4 Section 41(d), `or judicial registrar'-- 5 omit, insert-- 6 `or court officer'. 7 Clause 20 Insertion of new s 41A 8 Chapter 2, part 3, division 4, subdivision 1-- 9 insert-- 10 `41A Use and dissemination of examination information 11 `(1) This section applies to a statement, disclosure, document or 12 other thing mentioned in section 40(2) (examination 13 information). 14 `(2) The DPP or the commission may give the examination 15 information to-- 16 (a) a corresponding entity to help the entity to obtain other 17 evidence or other information (derived evidence) that 18 may be relevant to the enforcement of a corresponding 19 law; or 20 (b) an entity of the State, another State or the 21 Commonwealth that has a function of investigating or 22 prosecuting offences to help the entity to obtain other 23 evidence or other information (derived evidence) that 24 may be relevant to the investigation or prosecution of an 25 offence. 26 `(3) The giving of examination information under subsection (2), 27 its use to obtain derived evidence or the admissibility of the 28 derived evidence in a proceeding, including a prosecution for 29 an offence, is unaffected by-- 30 Page 17

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 21] (a) the fact that the examination information was obtained 1 because of section 40 and subject to section 39B; or 2 (b) any duty of confidentiality owed to the person from 3 whom the examination information was obtained; or 4 (c) the objects of this Act or the particular purpose for 5 which the examination information was obtained. 6 `(4) In this section-- 7 entity of the State, another State or the Commonwealth 8 includes a law enforcement agency established under a law of 9 the State, another State or the Commonwealth.'. 10 Clause 21 Insertion of new s 42A 11 Chapter 2, part 3, divsion 4, subdivision 3, after section 42-- 12 insert-- 13 `42A Offence to contravene property particulars order 14 `A person directed under a property particulars order to give a 15 statement to the commission within a stated period of time-- 16 (a) must comply with the direction unless the person has a 17 reasonable excuse; and 18 (b) must not make a statement that is false or misleading in 19 a material particular. 20 Maximum penalty--100 penalty units or 2 years 21 imprisonment.'. 22 Clause 22 Amendment of s 45 (Notice of restraining order and other 23 orders) 24 Section 45-- 25 insert-- 26 `(2A) However, under subsection (2) the commission is not required 27 to give a person whose property is restrained under a 28 restraining order a copy of, or notice of, an investigation order 29 Page 18

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 23] made under section 38A(1)(a), (b) or (c) directed to another 1 person.'. 2 Clause 23 Amendment of s 47 (Supreme Court may exclude 3 prescribed respondent's property from restraining order) 4 (1) Section 47(3)-- 5 omit, insert-- 6 `(3) The prescribed respondent must give a written notice of the 7 making of the application, the grounds for the application and 8 the facts relied on to the State and anyone else who has an 9 interest in the property. 10 `(3A) The grounds for the application and the facts relied on must be 11 stated fully in the notice.'. 12 (2) Section 47(8), after `applicant'-- 13 insert-- 14 `or a relevant person'. 15 (3) Section 47-- 16 insert-- 17 `(9) In this section-- 18 relevant person means a person other than the applicant who, 19 on examination under an examination order, may be able to 20 give evidence relevant to the application.'. 21 Clause 24 Amendment of s 49 (Supreme Court may exclude other 22 property from restraining order) 23 (1) Section 49(2)-- 24 omit, insert-- 25 `(2) The applicant must give a written notice of the making of the 26 application, the grounds for the application and the facts 27 relied on to the State and anyone else who has an interest in 28 the property. 29 Page 19

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 25] `(2A) The grounds for the application and the facts relied on must be 1 stated fully in the notice.'. 2 (2) Section 49(7), after `applicant'-- 3 insert-- 4 `or a relevant person'. 5 (3) Section 49-- 6 insert-- 7 `(8) In this section-- 8 relevant person means a person other than the applicant who, 9 on examination under an examination order, may be able to 10 give evidence relevant to the application.'. 11 Clause 25 Insertion of new of s 58A 12 After section 58-- 13 insert-- 14 `58A Forfeiture order relating to external serious crime 15 related activity 16 `(1) An application for a forfeiture order that relates to property 17 derived from external serious crime related activity may be 18 made only if the prescribed respondent lives in Queensland or 19 the property is situated in Queensland. 20 `(2) The Supreme Court may not make the forfeiture order unless 21 it is satisfied that no action has been taken under a law of the 22 Commonwealth or any place outside Queensland, including 23 outside Australia, against the property of the prescribed 24 respondent that is the subject of the application as a result of 25 the external serious crime related activity. 26 `(3) For subsection (2), an affidavit of an appropriate officer that 27 includes a statement that the officer has made due enquiry and 28 is satisfied that no action has been taken under a law of the 29 Commonwealth or any place outside Queensland, including 30 outside Australia, against property of the prescribed 31 respondent that is the subject of the application as a result of 32 Page 20

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 26] the external serious crime related activity is proof, in the 1 absence of evidence to the contrary, of the matters contained 2 in the affidavit.'. 3 Clause 26 Amendment of s 65 (Exclusion of property from forfeiture 4 order application) 5 (1) Section 65(3)-- 6 omit, insert-- 7 `(3) The applicant must give a written notice of the making of the 8 application, the grounds for the application and the facts 9 relied on to the State and anyone else who has an interest in 10 the property. 11 `(3A) The grounds for the application and the facts relied on must be 12 stated fully in the notice.'. 13 (2) Section 65(8), after `applicant'-- 14 insert-- 15 `or a relevant person'. 16 (3) Section 65-- 17 insert-- 18 `(9) In this section-- 19 relevant person means a person other than the applicant who, 20 on examination under an examination order, may be able to 21 give evidence relevant to the application for the exclusion 22 order.'. 23 Clause 27 Amendment of s 66 (Exclusion of property from forfeiture 24 order) 25 (1) Section 66(3)-- 26 omit, insert-- 27 `(3) For each application made under this section, including an 28 application for leave, the applicant must give a written notice 29 of the making of the application, the grounds for the 30 Page 21

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 28] application and the facts relied on to the State and anyone else 1 who has an interest in the property. 2 `(3A) The grounds for the application and the facts relied on must be 3 stated fully in the notice.'. 4 (2) Section 66(8), after `applicant'-- 5 insert-- 6 `or a relevant person'. 7 (3) Section 66-- 8 insert-- 9 `(9) In this section-- 10 relevant person means a person other than the applicant who, 11 on examination under an examination order, may be able to 12 give evidence relevant to the application for the exclusion 13 order.'. 14 Clause 28 Amendment of s 71 (Exclusion of value of innocent 15 interest from forfeiture order) 16 Section 71(3)-- 17 omit, insert-- 18 `(3) For each application made under this section, including an 19 application for leave, the applicant must give a written notice 20 of the making of the application, the grounds for the 21 application and the facts relied on to the State and anyone else 22 who has an interest in the property. 23 `(3A) The grounds for the application and the facts relied on must be 24 stated fully in the notice.'. 25 Clause 29 Amendment of s 78 (Making of proceeds assessment 26 order) 27 (1) Section 78(1), after `activity'-- 28 insert-- 29 `(a finding of serious crime related activity)'. 30 Page 22

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 30] (2) Section 78-- 1 insert-- 2 `(5) The Supreme Court may not make a proceeds assessment 3 order on an application that relates wholly to external serious 4 crime related activity, unless it is satisfied that no action has 5 been taken under a law of the Commonwealth or any other 6 place outside Queensland, including outside Australia, in 7 relation to the proceeds of the external serious crime related 8 activity. 9 `(6) For subsection (5), an affidavit by an appropriate officer that 10 includes a statement that the officer has made due enquiry and 11 is satisfied that no action has been taken under a law of the 12 Commonwealth or any place outside Queensland, including 13 outside Australia, against any property in relation to the 14 proceeds of the external serious crime related activity is proof, 15 in the absence of evidence to the contrary, of the matters 16 contained in the affidavit. 17 `(7) The court may make a pecuniary penalty order and a proceeds 18 assessment order in relation to the same serious crime related 19 activity. 20 `(8) However, the court must take the amount of a pecuniary 21 penalty order into account when making a later proceeds 22 assessment order in relation to the same serious crime related 23 activity.'. 24 Clause 30 Amendment of s 80 (Proceeds assessment order 25 increase if forfeiture order discharged) 26 Section 80(1)(c)-- 27 omit, insert-- 28 `(c) after the proceeds assessment order is made-- 29 (i) the forfeiture ends because of an appeal; or 30 (ii) an exclusion order or an innocent interest 31 exclusion order is made in relation to any property 32 forfeited under the forfeiture order.'. 33 Page 23

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 31] Clause 31 Amendment of s 83 (How particular amounts may be 1 treated) 2 (1) Section 83(1), from `if, at the hearing' to `activity; or'-- 3 omit, insert-- 4 `if the court makes a finding of serious crime related activity 5 in relation to a person under section 78(1) and-- 6 (a) evidence is given that the value of the relevant person's 7 property at the end of the period of 6 years mentioned in 8 section 78(1) was more than the value of the relevant 9 person's property at the start of the period; or'. 10 (2) Sections 83(1)(b), `the person's'-- 11 omit, insert-- 12 `the relevant person's'. 13 (3) Sections 83(2) and (3), `the person'-- 14 omit, insert-- 15 `the relevant person'. 16 (4) Section 83(2), `the activity'-- 17 omit, insert-- 18 `an illegal activity'. 19 Clause 32 Amendment of s 88 (Charge on property) 20 (1) Section 88(3)(c), `person against whom the order is made'-- 21 omit, insert-- 22 `relevant person'. 23 (2) Section 88-- 24 insert-- 25 `(5) For subsection (4), it is declared that the charge may be 26 registered under the Land Act 1994 or the Land Title Act 1994 27 over the property of the relevant person. 28 Page 24

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 33] `(6) The public trustee or the appropriate officer may lodge a 1 request with the registrar for the registration of the charge. 2 `(7) The request must be in the appropriate form. 3 `(8) The registrar must register the charge over the land on 4 lodgement of-- 5 (a) the request; and 6 (b) a certificate of the public trustee or the appropriate 7 officer stating there is a charge over the land under this 8 section for the amount payable under the proceeds 9 assessment order that is unpaid. 10 `(9) As soon as practicable after the amount payable under the 11 proceeds assessment order has been paid, the public trustee or 12 the appropriate officer must lodge a request with the registrar 13 in the appropriate form to release the charge. 14 `(10) The registrar must register the release of the charge over the 15 land. 16 `(11) In this section-- 17 appropriate form means the appropriate form under the Land 18 Act 1994 or the Land Titles Act 1994. 19 registrar means-- 20 (a) for registration under the Land Act 1994--the chief 21 executive under that Act; or 22 (b) for registration under the Land Title Act 1994--the 23 registrar of titles. 24 relevant person means the person against whom the proceeds 25 assessment order is made.'. 26 Clause 33 Amendment of s 103 (Meaning of effective control) 27 Section 103-- 28 insert-- 29 `(2) For subsection (1), a reference in section 20 to chapter 2 is 30 taken to be a reference to this chapter.'. 31 Page 25

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 34] Clause 34 Amendment of s 126 (Conditions about particular 1 payments out of restrained property) 2 Section 126(3)(b) after `tainted property'-- 3 insert-- 4 `and is not available substitute property'. 5 Clause 35 Amendment of s 129 (Supreme Court may make other 6 orders) 7 (1) Section 129(1), `section 130'-- 8 omit, insert-- 9 `sections 130 and 130A'. 10 (2) Section 129(2), `section 130(h)'-- 11 omit, insert-- 12 `section 130(1)(f)'. 13 (3) Section 129(4), after `an order'-- 14 insert-- 15 `, other than an investigation order,'. 16 (4) Section 129(5) to (7)-- 17 omit, insert-- 18 `(5) Another person may apply for an order, other than an 19 investigation order, under this section with the Supreme 20 Court's leave. 21 `(6) An applicant under subsection (4) must give notice of the 22 making of the application to each other person who may apply 23 under subsection (4) for an order under this section. 24 `(7) An applicant under subsection (5) must give notice of the 25 making of the application to each person who may apply 26 under subsection (4) for an order under this section. 27 `(8) The State may apply for an investigation order. 28 `(9) The State must give notice of an application under subsection 29 (8) to the person to whom the order is to be directed. 30 Page 26

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 36] `(10) Subsections (6), (7) and (9) do not apply to an application for 1 an order under this section made in a proceeding on an 2 application for a restraining order that is made without notice 3 to any person to whom it relates. 4 `(11) Also, subsection (9) does not apply to an application for an 5 investigation order of which notice does not have to be given 6 because of section 129A(2).'. 7 Clause 36 Insertion of new s 129A 8 After section 129-- 9 insert-- 10 `129A Hearing of application 11 `(1) The Supreme Court must not hear an application for an order 12 under section 129 unless satisfied the person who is, or whose 13 property is, the subject of the application has received 14 reasonable notice of the application. 15 `(2) Despite subsection (1), the court must consider an application 16 for an investigation order without notice having been given if 17 the DPP asks the court to do so. 18 `(3) However, the Supreme Court may, at any time before finally 19 deciding the application, direct the State to give notice of the 20 application to a stated person or class of persons in the way, 21 and within the time, the court considers appropriate. 22 `(4) A person who is, or whose property is, the subject of the 23 application, and anyone else who claims to have an interest in 24 the property, may appear at the hearing of the application.'. 25 Clause 37 Replacement of s 130 (Particular orders Supreme Court 26 may make) 27 Section 130-- 28 omit, insert-- 29 Page 27

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 37] `130 Administration orders Supreme Court may make 1 `(1) The court may make any of the following orders under section 2 129, (each an administration order)-- 3 (a) an order varying the property restrained under the 4 restraining order; 5 (b) an order imposing additional conditions on the 6 restraining order or varying a condition of the order; 7 (c) an order about the performance of an undertaking for 8 the payment of damages or costs given for the 9 restraining order; 10 (d) if the restraining order directs the public trustee to take 11 control of the property, an order-- 12 (i) regulating the way the public trustee may perform 13 functions under the restraining order; or 14 (ii) deciding any question about the property, including 15 a question affecting the liabilities of the owner of 16 the property or the functions of the public trustee; 17 (e) an order requiring a person whose property is restrained 18 under the restraining order to do anything necessary or 19 convenient to bring the property within Queensland; 20 (f) an order for the payment to Legal Aid, from property 21 restrained under the restraining order, of expenses 22 payable by the person whose property is restrained 23 because-- 24 (i) the person is a party to a proceeding under this 25 Act; or 26 (ii) the person is a defendant in a criminal proceeding, 27 including any proceeding on appeal against 28 conviction or sentence. 29 `(2) A person must not contravene an order made under subsection 30 (1)(e). 31 Maximum penalty--100 penalty units or 2 years 32 imprisonment.'. 33 Page 28

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 38] Clause 38 Insertion of new s 130A 1 Chapter 3, part 3, division 4-- 2 insert-- 3 `130A Investigation orders Supreme Court may make 4 `(1) Also, the court may make any of the following orders under 5 section 130 (each an investigation order)-- 6 (a) an order (examination order) requiring a person whose 7 property is restrained under the restraining order or a 8 stated person to attend for examination on oath before 9 the court or a court officer about the following-- 10 (i) the affairs of any person whose property is 11 restrained under the restraining order; 12 (ii) the nature and location of any property of a person 13 whose property is restrained under the restraining 14 order; 15 (iii) the nature and location of any property restrained 16 under the restraining order that the applicant for 17 the order reasonably suspects is tainted property; 18 (b) an order (also an examination order) requiring the 19 spouse of a person whose property is restrained under 20 the restraining order to attend for examination on oath 21 before the court or a court officer about the spouse's 22 affairs, including the nature and location of property in 23 which the spouse or the person has an interest; 24 (c) an order (property particulars order) directing any of 25 the following to give to the DPP within a stated time a 26 sworn statement of particulars of, or of dealings with, 27 any property (whether or not the restrained property) as 28 the court considers appropriate-- 29 (i) a person whose property is restrained under the 30 restraining order; 31 (ii) a person whose property the restrained property 32 was at any time before the restraining order was 33 made; 34 Page 29

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 39] (iii) if the person mentioned in subparagraph (i) or (ii) 1 is or was a corporation--an executive officer of the 2 corporation. 3 `(2) Subsection (3) applies if an examination order is made 4 without notice of the application for the order being given to a 5 person required to attend for examination. 6 `(3) The examination must not be conducted less than 7 days after 7 the day on which the examination order is made, unless the 8 court considers it appropriate for the examination to be 9 conducted at an earlier time.'. 10 Clause 39 Omission of ch 3, pt 3, div 5, sdiv 1, s 130A (Meaning of 11 judicial registrar for subdiv 1) 12 Chapter 3, part 3, division 5, subdivision 1, section 130A-- 13 omit. 14 Clause 40 Replacement of s 131 (Judicial registrar's power to 15 conduct examinations) 16 Section 131-- 17 omit, insert-- 18 `131 Court officer's power to conduct examinations 19 `(1) This section applies if a court officer conducts an examination 20 under an examination order. 21 `(2) The court officer constitutes, and may exercise all the 22 jurisdiction and powers of, the court. 23 `(3) However, the court officer may not exercise any power of the 24 court to punish for contempt.'. 25 Clause 41 Amendment of s 131B (Examination to take place in 26 private) 27 Section 131B(2), `or judicial registrar'-- 28 Page 30

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 42] omit, insert-- 1 `or court officer'. 2 Clause 42 Amendment of s 131C (Role of the examinee's lawyer) 3 Sections 131C, `or judicial registrar'-- 4 omit, insert-- 5 `or court officer'. 6 Clause 43 Amendment of s 131D (Recording evidence) 7 (1) Section 131D, `or judicial registrar'-- 8 omit, insert-- 9 `or court officer'. 10 (2) Section 131D(3)(b), `in the court's or judicial registrar's 11 presence'-- 12 omit, insert-- 13 `in the court's or court officer's presence'. 14 Clause 44 Amendment of s 133 (Offence to contravene examination 15 order) 16 Section 133(d), `or judicial registrar'-- 17 omit, insert-- 18 `or court officer'. 19 Clause 45 Insertion of new s 133A 20 Chapter 3, part 3, division 5, subdivision 1-- 21 insert-- 22 Page 31

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 46] `133A Use and dissemination of examination information 1 `(1) This section applies to a statement, disclosure, document or 2 other thing mentioned in section 132(2) (examination 3 information). 4 `(2) The DPP or the commission may give the examination 5 information to-- 6 (a) a corresponding entity to help the entity to obtain other 7 evidence or other information (derived evidence) that 8 may be relevant to the enforcement of a corresponding 9 law; or 10 (b) an entity of the State, another State or the 11 Commonwealth that has a function of investigating or 12 prosecuting offences to help the entity to obtain other 13 evidence or other information (derived evidence) that 14 may be relevant to the investigation or prosecution of an 15 offence. 16 `(3) The giving of examination information under subsection (2), 17 its use to obtain derived evidence or the admissibility of the 18 derived evidence in a proceeding, including a prosecution for 19 an offence is unaffected by-- 20 (a) the fact that the examination information was obtained 21 because of section 132 and subject to section 131B; or 22 (b) any duty of confidentiality owed to the person from 23 whom the examination information was obtained; or 24 (c) the objects of this Act or the particular purpose for 25 which the examination information was obtained. 26 `(4) In this section-- 27 entity of the State, another State or the Commonwealth 28 includes a law enforcement agency established under a law of 29 the State, another State or the Commonwealth.'. 30 Clause 46 Insertion of new s 134A 31 Chapter 3, part 3, division 5, subdivision 2, after section 32 134-- 33 Page 32

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 47] insert-- 1 `134A Offence to contravene property particulars order 2 `A person directed under a property particulars order to give a 3 statement to the DPP within a stated period of time-- 4 (a) must comply with the direction unless the person has a 5 reasonable excuse; and 6 (b) must not make a statement that is false or misleading in 7 a material particular. 8 Maximum penalty--100 penalty units or 2 years 9 imprisonment.'. 10 Clause 47 Amendment of s 135 (Notice of restraining order) 11 Section 135-- 12 insert-- 13 `(2A) However, under subsection (2), the DPP is not required to give 14 a person whose property is restrained under a restraining order 15 a copy of, or notice of, an investigation order directed to 16 another person.'. 17 Clause 48 Amendment of s 139 (Supreme Court may exclude 18 prescribed respondent's property from restraining order) 19 Section 139(2)(a), after `tainted property'-- 20 insert-- 21 `and is not available substitute property'. 22 Clause 49 Amendment of s 140 (Supreme Court may exclude other 23 property from restraining order) 24 (1) Section 140(2)(a), after `tainted property'-- 25 insert-- 26 `and is not available substitute property'. 27 Page 33

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 50] (2) Section 140(3)(a), after `tainted property'-- 1 insert-- 2 `and is not available substitute property'. 3 Clause 50 Insertion of new ch 3, pt 4, div 2A 4 Chapter 3, part 4-- 5 insert-- 6 `Division 2A Tainted property substitution 7 declaration 8 `153A Definitions for div 2A 9 `In this division-- 10 applicant means a person who may apply for-- 11 (a) a forfeiture order; or 12 (b) a restraining order for the purposes of forfeiture. 13 convicted person means a person convicted of a confiscation 14 offence. 15 prescribed respondent see section 116. 16 unavailable property means property that is not available for 17 forfeiture. 18 `153B References to property that is not available for 19 forfeiture 20 `For this division, property is not available for forfeiture if the 21 convicted person does not have an interest in the property. 22 `153C Application for tainted property substitution 23 declaration 24 `(1) If a person is convicted of a confiscation offence, the State 25 may apply for a tainted property substitution declaration to the 26 Page 34

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 50] Supreme Court or the court before which the convicted person 1 is convicted. 2 `(2) The application under subsection (1) must-- 3 (a) be made in conjunction with an application for a 4 forfeiture order; and 5 (b) state the details of property that the convicted person 6 used or intended to use in, or in connection with, the 7 commission of the confiscation offence; and 8 (c) state the details of property that is to be substituted for 9 the property mentioned in paragraph (b) that-- 10 (i) is property in which the person had an interest at 11 the time the confiscation offence was committed; 12 and 13 (ii) is of the same nature or description as the property 14 mentioned in paragraph (b). 15 Example-- 16 A person is convicted of a confiscation offence involving 17 growing cannabis in a rented home unit. The prosecution may 18 apply to the court for a declaration that a home unit owned by 19 the person is tainted property even though the rented home unit 20 and the defendant's home unit are not of equal value. 21 `153D Court may make tainted property substitution 22 declaration 23 `(1) Subject to subsection (2), a court may make a tainted property 24 substitution declaration if the court is satisfied-- 25 (a) that the convicted person used, or intended to use, 26 particular property in, or in connection with, the 27 commission of the confiscation offence; and 28 (b) that the property mentioned in paragraph (a) is 29 unavailable property; and 30 (c) that the property that is to be substituted for the property 31 mentioned in paragraph (a)-- 32 Page 35

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 50] (i) is property in which the convicted person had an 1 interest at the time that the confiscation offence 2 was committed; and 3 (ii) is of the same nature or description as the property 4 mentioned in paragraph (a). 5 `(2) The court may make a tainted property substitution 6 declaration whether or not the value of the unavailable 7 property is equal to the value of the property that is to be 8 substituted for the unavailable property. 9 `(3) If the court makes a tainted property substitution declaration 10 for property, the property-- 11 (a) is substituted for the unavailable property; and 12 (b) is taken to be tainted property for this chapter. 13 `153E Restraining order for property that may become 14 subject to a tainted property substitution declaration 15 `(1) The State may apply under section 117 for a restraining order 16 for available substitute property. 17 `(2) The application under subsection (1) must-- 18 (a) state the details of property that the prescribed 19 respondent used or intended to use in, or in connection 20 with, the commission of the confiscation offence; and 21 (b) state the details of the property that may be substituted 22 for the property mentioned in paragraph (a) under a 23 tainted property substitution order that-- 24 (i) is property in which the prescribed respondent had 25 an interest at the time the confiscation offence was 26 committed; and 27 (ii) is of the same nature or description as the property 28 mentioned in paragraph (a). 29 `(3) For subsection (1), chapter 3, part 3 and any other provisions 30 of this Act that relate to the operation of that part apply with 31 necessary changes and changes prescribed by this section. 32 Page 36

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 50] `(4) For subsection (3)-- 1 (a) section 126 does not apply; and 2 (b) for section 118(b)(i), the affidavit of the police officer 3 must state instead-- 4 (i) the police officer suspects that-- 5 (A) stated property of the prescribed respondent 6 is tainted property; and 7 (B) other stated property of the prescribed 8 respondent, that is the subject of the 9 application, is available substitute property; 10 and 11 (ii) the reason for the suspicion; and 12 (c) for section 119(3)(a), the affidavit of the police officer 13 must state instead-- 14 (i) the police officer suspects that-- 15 (A) stated property of the other person is tainted 16 property; and 17 (B) other stated property of the prescribed 18 respondent, that is the subject of the 19 application, is available substitute property; 20 and 21 (ii) the reason for the suspicion; and 22 (d) for section 119(4)(a), the affidavit of the police officer 23 must state instead-- 24 (i) the police officer suspects that-- 25 (A) stated property of the other person is tainted 26 property; and 27 (B) other stated property of the prescribed 28 respondent, that is the subject of the 29 application, is available substitute property; 30 and 31 (ii) the reason for the suspicion; and 32 Page 37

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 51] (e) for section 130A(1)(a)(iii), the reference to tainted 1 property is taken to be a reference to available substitute 2 property; and 3 (f) for section 139(2)(a), the court must instead be satisfied 4 that either-- 5 (i) the prescribed respondent's property is not 6 available substitute property; or 7 (ii) the property for which the available substitute 8 property may be substituted under a tainted 9 property substitution declaration is not tainted 10 property; and 11 (g)) for section 140(2)(a) and section 140(3)(a), the court 12 must instead be satisfied that either-- 13 (i) the prescribed respondent's property is not 14 available substitute property; or 15 (ii) the property for which the available substitute 16 property may be substituted under a tainted 17 property substitution declaration is not tainted 18 property.'. 19 Clause 51 Amendment of s 158 (Making an innocent interest 20 exclusion order) 21 Section 158(2)(c)(ii), after `tainted property'-- 22 insert-- 23 `or could become tainted property under a tainted property 24 substitution declaration'. 25 Clause 52 Amendment of s 186 (Pecuniary penalty order increase if 26 forfeiture order discharged) 27 Section 186(1)(c)-- 28 omit, insert-- 29 `(c) after the pecuniary penalty order is made-- 30 Page 38

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 53] (i) the forfeiture ends because of an appeal against the 1 forfeiture order; or 2 (ii) an innocent interest exclusion order is made in 3 relation to any property forfeited under the 4 forfeiture order.'. 5 Clause 53 Amendment of s 236 (Cancellation of filing) 6 (1) Section 236(1), `or a judicial registrar'-- 7 omit. 8 (2) Section 236(1), `or judicial registrar'-- 9 omit. 10 Clause 54 Insertion of new ch 8, pt 2, div 1, hdg and div 2, hdg 11 (1) Before section 247-- 12 insert-- 13 `Division 1 Records'. 14 (2) After section 248-- 15 insert-- 16 `Division 2 Information volunteered by financial 17 institutions'. 18 Clause 55 Amendment of s 249 (Communication of information by 19 financial institutions to particular officers) 20 (1) Section 249(6)-- 21 renumber as 249(7). 22 (2) Section 249-- 23 insert-- 24 `(6) A person must not, other than as permitted under subsection 25 (2) or (3), disclose to anyone-- 26 Page 39

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 56] (a) that a financial institution, or an officer of a financial 1 institution, intends to give or has given information to a 2 police officer under subsection (2); or 3 (b) that a financial institution, or an officer of a financial 4 institution, intends to give or has given information to a 5 commission officer under subsection (3); or 6 (c) the nature of any information given under subsection (2) 7 or (3). 8 Maximum penalty--10 penalty units.'. 9 Clause 56 Insertion of new ch 8, pt 2, div 3 10 After section 249-- 11 insert-- 12 `Division 3 Notices to financial institutions 13 `249A Definition for div 3 14 `In this division-- 15 officer includes director, secretary, executive officer or 16 employee. 17 `249B Giving notice to financial institution 18 `(1) A police officer of or above the rank of inspector, or an 19 authorised commission officer, may give a written notice to a 20 financial institution requiring the financial institution to 21 advise a police officer or commission officer whether a stated 22 person holds an account with the financial institution. 23 `(2) The notice must state that-- 24 (a) the police officer or commission officer reasonably 25 believes that the notice is required-- 26 (i) to decide whether to take any action under this Act; 27 or 28 Page 40

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 56] (ii) in relation to proceedings under this Act; and 1 (b) the advice must be given within 14 days after the notice 2 is given. 3 `(3) The police officer or commission officer must not give the 4 notice unless the police officer or commission officer 5 reasonably believes that giving the notice is required-- 6 (a) to decide whether to take any action under this Act; or 7 (b) in relation to proceedings under this Act. 8 `249C Prohibition on disclosure 9 `A person must not, other than as required under section 10 249B, disclose to anyone that-- 11 (a) a financial institution, or an officer of a financial 12 institution, intends to give or has given information to a 13 police officer, or commission officer, under section 14 249B; or 15 (b) a financial institution is required to give information to a 16 police officer, or commission officer, under section 17 249B. 18 Maximum penalty--100 penalty units. 19 `249D Protection from suits etc. in relation to action taken 20 under s 249B 21 `(1) No action, suit or proceeding lies against-- 22 (a) a financial institution; or 23 (b) an officer or agent of the institution acting in the course 24 of the officer's or agent's employment or agency; 25 in relation to any action taken by the institution, officer or 26 agent under a notice under section 249B or in the mistaken 27 belief that action was required under the notice. 28 `(2) If a financial institution, or an officer or agent of the 29 institution, gives information under section 249B, the 30 Page 41

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 57] institution, officer or agent is taken, for the purposes of 1 sections 250 and 252, not to have been in possession of that 2 information at any time. 3 `249E Financial institution must comply with a notice 4 `A financial institution must comply with a notice given to it 5 under section 249B. 6 Maximum penalty--100 penalty units.'. 7 Clause 57 Amendment of s 250 (Money laundering) 8 (1) Section 250(1), penalty-- 9 omit, insert-- 10 `Maximum penalty-- 11 (a) for knowingly engaging in money laundering--3000 12 penalty units or 20 years imprisonment; or 13 (b) for recklessly engaging in money laundering--1500 14 penalty units or 10 years imprisonment.'. 15 (2) Section 250(2)-- 16 omit, insert-- 17 `(2) A person engages in money laundering if the person 18 knowingly or recklessly-- 19 (a) engages, directly or indirectly, in a transaction involving 20 money or other property that is tainted property; or 21 (b) receives, possesses, disposes of or brings into 22 Queensland money or other property that is tainted 23 property; or 24 (c) conceals or disguises the source, existence, nature, 25 location, ownership or control of tainted property. 26 `(2A) For subsection (2), a person knowingly does an act mentioned 27 in subsection (2)(a), (b) or (c) in relation to property 28 (knowingly engaging in money laundering) if the person 29 knows, or ought reasonably to know, that the property is 30 Page 42

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 58] tainted property or is derived from some form of unlawful 1 activity. 2 `(2B) For subsection (2), a person recklessly does an act mentioned 3 in subsection (2)(a), (b) or (c) in relation to property 4 (recklessly engaging in money laundering) if-- 5 (a) the person is aware there is a substantial risk the 6 property is tainted property or derived from some form 7 of criminal activity; and 8 (b) having regard to the circumstances known to the person, 9 it is unjustifiable for the person to take the risk. 10 `(2C) The question whether taking a risk is unjustifiable is one of 11 fact.'. 12 Clause 58 Insertion of new s 256A 13 Chapter 10, part 2, before section 257-- 14 insert-- 15 `256A Consent orders 16 `(1) Subject to subsection (2), the court may make an order in a 17 proceeding under chapter 2 or chapter 3 with the consent of-- 18 (a) the applicant in the proceeding; and 19 (b) everyone whom the court has reason to believe has an 20 interest in the property that is the subject of the 21 proceeding. 22 `(2) The court may make an order under subsection (1) if-- 23 (a) a person mentioned in subsection (1)(b) withholds 24 consent but the court considers it appropriate to make 25 the order; or 26 (b) the consent of a person mentioned in subsection (1)(b) 27 could not be obtained but the court considers it 28 appropriate to make the order. 29 `(3) The order may be made without consideration of the matters 30 the court would otherwise consider in the proceeding. 31 Page 43

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 59] `(4) This section does not apply to an order made on sentence for a 1 criminal offence.'. 2 Clause 59 Replacement of s 257 (Restriction on functions) 3 Section 257-- 4 omit, insert-- 5 `257 Restriction on functions 6 `A restraining order under chapter 2 and a restraining order 7 under chapter 3 may not both be made to be in force in 8 relation to the same property at the same time.'. 9 Clause 60 Omission of s 266 (Review of Act) 10 Section 266-- 11 omit. 12 Clause 61 Amendment of ch 12, hdg (Transitional provisions, repeal 13 and amendments) 14 Chapter 12, heading, `, repeal and amendments'-- 15 omit, insert-- 16 `and repeal provision'. 17 Clause 62 Amendment of ch 12, pt 1, hdg (Transitional provisions) 18 Chapter 12, part 1, heading, at the end-- 19 insert-- 20 `for Act No. 68 of 2002'. 21 Clause 63 Insertion of new ch 12, pt 3 22 After section 282-- 23 insert-- 24 Page 44

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 63] `Part 3 Transitional provisions for the 1 Criminal Proceeds 2 Confiscation and Other Acts 3 Amendment Act 2008 4 `283 Definition for this part 5 `In this part-- 6 amendment Act means the Criminal Proceeds Confiscation 7 and Other Acts Amendment Act 2008. 8 `284 Property controlled by public trustee 9 `This Act as amended by the amendment Act, section 7 10 applies in relation to property whether the public trustee was 11 directed to take control of the property before or after the 12 commencement of the section. 13 `285 Proceeds assessment order relating to an external 14 serious crime related activity 15 `This Act as amended by the amendment Act, section 29 16 applies in relation to external serious crime related activity 17 happening before or after the commencement of the section. 18 `286 Charges on property 19 `This Act as amended by the amending Act section 32, applies 20 in relation to all proceeds assessment orders made after the 21 commencement of the section. 22 `287 Orders under ss 37 and 129 23 `(1) This section applies if a person makes an application for a 24 particular type of order under section 37 or 129 before the 25 commencement and the Supreme Court has not dealt with the 26 application on the commencement. 27 Page 45

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 63] `(2) The application remains valid despite the amendment Act and 1 the Supreme Court, on the application, may make an order of 2 the same type after the commencement under the Act as 3 amended by the amendment Act. 4 `288 Exclusion of property from orders 5 `(1) This section applies if-- 6 (a) a person gave a notice under old section 47(3), 49(2), 7 65(3), 66(3) or 71(3); and 8 (b) the Supreme Court has not made an order on the 9 application of which notice was given in the notice. 10 `(2) The person is taken to comply with the following provisions 11 in relation to the application-- 12 if the notice was given under old section 47(3)--section 13 47(3) and (3A) 14 if the notice was given under old section 49(2)--section 15 49(2) and (2A) 16 if the notice was given under old section 65(3)--section 17 65(3) and (3A) 18 if the notice was given under old section 66(3)--section 19 66(3) and (3A) 20 if the notice was given under old section 71(3)--section 21 71(3) and (3A). 22 `(3) In this section-- 23 old section 47(3), 49(2), 65(3), 66(3) or 71(3) means section 24 47(3), 49(2), 65(3), 66(3) or 71(3) as in force immediately 25 before the commencement of this section. 26 `289 Transitional provision for amendment of definition of 27 dealing 28 `To remove doubt, it is declared that the transaction described 29 in schedule 6, definition dealing, paragraph (da), inserted into 30 the definition by the amendment Act, section 66, was, from 31 Page 46

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 64] the commencement of the definition, always a dealing with 1 property.'. 2 Clause 64 Amendment of schedule 1 (Examples) 3 Schedule 1, part 2, section 3, example 1, subsection (6)(b)-- 4 omit, insert-- 5 `(b) the amount of $400000, made up of the $60000 6 mentioned in subsection (2)(a), and the $20000 7 mentioned in subsection (4)(b), for each year, is derived 8 proceeds.'. 9 Clause 65 Amendment of schedule 1 (Examples) 10 Schedule 1, part 4, section 12 example 3, subsection (6)(b)-- 11 omit, insert-- 12 `(b) the amount of $400000, made up of the $60000 13 mentioned in subsection (2)(a), and the $20000 14 mentioned in subsection (4)(b), for each year, is derived 15 proceeds.'. 16 Clause 66 Amendment of sch 6 (Dictionary) 17 (1) Schedule 6, definitions property and property particulars 18 order-- 19 omit. 20 (2) Schedule 6-- 21 insert-- 22 `applicant for chapter 4, part 4, division 2A, see section 23 153A. 24 available substitute property means property that may 25 become substituted for other property under a tainted property 26 substitution declaration. 27 convicted person for chapter 4, part 4, division 2A, see 28 section 153A. 29 Page 47

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 2 Amendment of Criminal Proceeds Confiscation Act 2002 [s 66] corresponding entity means an entity that has a function of 1 enforcing a corresponding law. 2 court officer means an officer of the Supreme Court 3 appointed by the principal registrar. 4 examination order see-- 5 (a) for chapter 2--section 38A(1)(a) or (b); or 6 (b) for chapter 3--section 130A(1)(a) or (b). 7 external serious crime related activity see section 16(3). 8 finding of serious crime related activity see section 78(1). 9 investigation order see-- 10 (a) for chapter 2--section 38A(1); or 11 (b) for chapter 3--section 130A(1). 12 officer, for chapter 8, part 2, division 3, see section 249A. 13 principal registrar means the person appointed as the 14 principal registrar of the Supreme Court. 15 property includes-- 16 (a) generally--property whether situated in Queensland or 17 elsewhere, including outside Australia; and 18 (b) for chapter 2--see section 19. 19 Note-- 20 For the meaning of property generally, see the Acts Interpretation Act 21 1954, sections 32AB (Terms defined both in this Act and another Act) 22 and 36 (Meaning of commonly used words and expressions), which 23 defines property as follows-- 24 property means any legal or equitable estate or interest (whether present 25 or future, vested or contingent, or tangible or intangible) in real or 26 personal property of any description (including money), and includes 27 things in action. 28 property particulars order see-- 29 (a) for chapter 2--section 38A(1)(c); or 30 (b) for chapter 3--section 130A(1)(c). 31 Page 48

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 3 Amendment of Fair Trading Act 1989 [s 67] tainted property substitution declaration means a tainted 1 property substitution declaration made under section 153C. 2 unavailable property for chapter 4, part 4, division 2A, see 3 section 153A.'. 4 (3) Schedule 6, definition dealing-- 5 insert-- 6 `(da) engaging in a transaction that has the direct or indirect 7 effect of changing the value of a person's interest in the 8 property; and'. 9 (4) Schedule 6, definition dealing, paragraph (i), after `(d)'-- 10 insert-- 11 `(da),'. 12 (5) Schedule 6, definition prescribed respondent, paragraph (d)-- 13 omit, insert-- 14 (d) for chapter 4, other than part 4, division 2A--section 15 200; or 16 (e) for chapter 4, part 4, division 2A--section 116. 17 Part 3 Amendment of Fair Trading Act 18 1989 19 Clause 67 Act amended in pt 3 20 This part amends the Fair Trading Act 1989 21 Clause 68 Amendment of s 71A (Exemptions from division for 22 particular contracts or types of contract) 23 Section 71A(1), after `division'-- 24 Page 49

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 3 Amendment of Fair Trading Act 1989 [s 69] insert-- 1 `, other than section 63,'. 2 Clause 69 Insertion of new pt 9 3 After section 117-- 4 insert-- 5 `Part 9 Transitional provision for 6 Criminal Proceeds 7 Confiscation and Other Acts 8 Amendment Act 2008 9 `118 Existing exemptions and applications for exemptions 10 for section 63 11 `(1) On the commencement-- 12 (a) any relevant exemption existing immediately before the 13 commencement is revoked; and 14 (b) any application for a relevant exemption existing 15 immediately before the commencement ends; and 16 (c) any entitlement or expectation that anyone has 17 immediately before the commencement to apply for or 18 to be given a relevant exemption is extinguished. 19 `(2) In this section-- 20 commencement means the commencement of the Criminal 21 Proceeds Confiscation and Other Acts Amendment Act 2008, 22 section 68. 23 relevant exemption means an exemption given under section 24 71A for section 63.'. 25 Page 50

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 4 Amendment of Security Providers Act 1993 [s 70] Part 4 Amendment of Security 1 Providers Act 1993 2 Clause 70 Act amended in pt 4 3 This part amends the Security Providers Act 1993. 4 Clause 71 Amendment of s 10 (Application) 5 Section 10-- 6 insert-- 7 `(3B) If the application is for carrying out the functions of a security 8 firm, the application must include evidence that the applicant 9 is a current member of an approved security industry 10 association.'. 11 Clause 72 Amendment of s 11 (Entitlement to licences--individuals) 12 (1) Section 11(2)(c)-- 13 renumber as section 11(2)(d). 14 (2) Section 11(2)-- 15 insert-- 16 `(c) for an application for a security firm licence--is a 17 current member of an approved security industry 18 association; and'. 19 Clause 73 Amendment of s 13 (Entitlement to 20 licences--corporations or firms) 21 Section 13(3)-- 22 insert-- 23 `(c) the applicant is a current member of an approved 24 security industry association.'. 25 Page 51

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 4 Amendment of Security Providers Act 1993 [s 74] Clause 74 Amendment of s 21 (Grounds for suspension, 1 cancellation or refusal to renew) 2 (1) Section 21(1)(f)-- 3 renumber as section 21(1)(g). 4 (2) Section 21(1)(d) and (e)-- 5 omit, insert-- 6 `(d) if the licensee is an individual or a partnership--the 7 individual, the partnership or any partner-- 8 (i) has been convicted of an offence against the 9 Industrial Relations Act 1999, section 666(1) 10 relating to the under payment of wages; or 11 (ii) has contravened an order of the industrial 12 commission or of the Industrial Magistrates Court 13 to pay wages; 14 (e) if the licensee is a corporation-- 15 (i) the licensee has been convicted of an offence 16 against the Workplace Relations Act 1996 (Cwlth), 17 section 719 in relation to the payment of an 18 amount to a person; or 19 (ii) the licensee has contravened an order of an eligible 20 court under the Workplace Relations Act 1996 21 (Cwlth), section 719(6) or (7) or 720 to pay an 22 amount to or on behalf of the person; 23 (f) the licensee is not a member of an approved security 24 industry association;'. 25 (3) Section 21-- 26 omit, insert-- 27 `(1A) However, subsection (1)(f) applies only if at least 60 days 28 have passed since the later of the following-- 29 (a) the licensee was last a member of an approved security 30 industry association; 31 (b) the commencement of this subsection.'. 32 Page 52

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 4 Amendment of Security Providers Act 1993 [s 75] Clause 75 Insertion of new s 21A 1 After section 21-- 2 insert-- 3 `21A Approved security industry association must give 4 notice of persons whose membership of the 5 association ends 6 `An approved security industry association must, within 14 7 days after the end of each successive month after becoming an 8 approved security industry association, give the chief 9 executive written notice of-- 10 (a) each person whose membership of the association ended 11 during the month; and 12 (b) the date the membership ended. 13 Maximum penalty--20 penalty units.'. 14 Clause 76 Insertion of new s 25B 15 Part 2, division 5, after section 25A-- 16 insert-- 17 `25B Approval of security industry associations 18 `The chief executive may, under requirements prescribed 19 under a regulation-- 20 (a) approve security industry associations for the purposes 21 of this part; or 22 (b) withdraw a security industry association's approval 23 under paragraph (a).'. 24 Clause 77 Amendment of pt 2, div 6, hdg (Appeals against licence 25 decisions) 26 Part 2, division 6, heading, after `decisions'-- 27 insert-- 28 `and decisions about approval of security industry 29 associations'. 30 Page 53

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 4 Amendment of Security Providers Act 1993 [s 78] Clause 78 Amendment of s 26 (Right to appeal to the Court) 1 Section 26(3)-- 2 omit, insert-- 3 `(3) A security industry association may appeal against a decision 4 of the chief executive-- 5 (a) to refuse to approve the association for the purposes of 6 this part; or 7 (b) to withdraw the association's approval under section 8 25B(a). 9 `(4) The appeal may be made-- 10 (a) for an appeal under subsection (1) or (2)--to the 11 Magistrates Court nearest the place where the applicant 12 or licensee resides or carries on, or proposes to carry on, 13 business or employment under the licence; or 14 (b) for an appeal under subsection (3)-- 15 (i) if the association's principal place of business is in 16 Queensland--to the Magistrates Court nearest that 17 place; or 18 (ii) if the association's principal place of business is 19 outside Queensland--the Brisbane Magistrates 20 Court.'. 21 Clause 79 Amendment of sch 2 (Dictionary) 22 Schedule 2-- 23 insert-- 24 `approved security industry association means a security 25 industry association approved under section 25B(a) whose 26 approval under that section has not been withdrawn by the 27 chief executive under section 25B(b). 28 security industry association means an association that 29 represents the interests of security providers.'. 30 Page 54

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 5 Amendment of Trusts Act 1973 [s 80] Part 5 Amendment of Trusts Act 1973 1 Clause 80 Act amended in pt 5 2 This part amends the Trusts Act 1973. 3 Clause 81 Amendment of s 5 (Definitions) 4 Section 5(1), definition approved form, `section 114.' and 5 footnote-- 6 omit, insert-- 7 `section 118.'. 8 Clause 82 Amendment of s 67 (Protection of trustees by means of 9 advertisements) 10 Section 67(4)(a), `section 109'-- 11 omit, insert-- 12 `section 113'. 13 Clause 83 Renumbering of pts 9 and 10 and ss 107 to 115 14 (1) Parts 9 and 10-- 15 renumber as parts 10 and 11. 16 (2) Sections 107 to 115-- 17 renumber as sections 111 to 119. 18 Clause 84 Insertion of new pt 9 19 After section 106-- 20 insert-- 21 `Part 9 Gifts by particular trusts for 22 philanthropic purposes 23 Page 55

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 5 Amendment of Trusts Act 1973 [s 84] `107 Definitions for pt 9 1 `In this part-- 2 eligible recipient means a deductible gift recipient under the 3 Income Tax Assessment Act 1997 (Cwlth), whether or not the 4 deductible gift recipient is a charity at law or (without 5 limitation) is established for a charitable purpose or purposes. 6 prescribed trust means a trust-- 7 (a) that establishes and maintains a fund mentioned in item 8 2 of the table of the Income Tax Assessment Act 1997 9 (Cwlth), section 30-15; or 10 (b) that is established for charitable or philanthropic 11 purposes and is of a class prescribed under a regulation. 12 trust instrument means the initial instrument establishing a 13 prescribed trust, as modified by all validly executed 14 amendments. 15 `108 Prescribed trust--trust instrument containing 16 express power to give to eligible recipients 17 `The trust instrument of a prescribed trust may include an 18 express power for the trustees to provide money, property or 19 benefits to or for an eligible recipient or for the establishment 20 of an eligible recipient. 21 `109 Prescribed trust--trust instrument not containing 22 express power to give to eligible recipients 23 `(1) The powers of the trustees of a prescribed trust, whose trust 24 instrument does not contain an express power to do so, 25 include a power to provide money, property or benefits to or 26 for an eligible recipient or for the establishment of an eligible 27 recipient. 28 `(2) Subsection (1)-- 29 (a) applies despite any provision to the contrary in the trust 30 instrument; but 31 Page 56

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 5 Amendment of Trusts Act 1973 [s 84] (b) does not apply in relation to a particular eligible 1 recipient or a particular class of eligible recipients to the 2 extent that there is an express prohibition in the trust 3 instrument against the provision by the trustees of 4 money, property or benefits-- 5 (i) to or for that eligible recipient or class of eligible 6 recipients; or 7 (ii) for the establishment of that eligible recipient or 8 class of eligible recipients. 9 `(3) Subsection (1) does not apply to the trustees of a prescribed 10 trust unless there is in force a declaration substantially to the 11 effect of the approved form for the prescribed trust. 12 `(4) For the purpose of making a declaration under this section, the 13 approved form may be modified so as to limit the application 14 of the declaration to a stated eligible recipient or stated class 15 of eligible recipients. 16 `(5) If the declaration made for a prescribed trust is so limited, 17 subsection (1) in its application to the prescribed trust has 18 effect only in relation to the stated eligible recipient or stated 19 class of eligible recipients. 20 `(6) The trustees must ensure that the declaration, or a certified 21 copy of it, is retained with the records of the prescribed trust. 22 `(7) The trustees are not under a duty to make a declaration under 23 this section, nor are the trustees in breach of a duty in making 24 a declaration under this section. 25 `110 Ancillary provisions 26 `(1) A reference in this section to prescribed power, in relation to a 27 prescribed trust, means-- 28 (a) a power referred to in section 108 included in the trust 29 instrument; or 30 (b) the power referred to in section 109 as applying to the 31 prescribed trust. 32 Page 57

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 5 Amendment of Trusts Act 1973 [s 85] `(2) This Act applies to a prescribed trust as if the prescribed 1 power were a power exercisable for a charitable purpose. 2 `(3) Without limiting subsection (2)-- 3 (a) neither the existence nor the exercise of the prescribed 4 power affects the validity or status of a charitable trust 5 as a charitable trust; and 6 (b) a prescribed trust is to be construed and given effect to 7 as if-- 8 (i) the prescribed power were a power exercisable for 9 a charitable purpose; and 10 (ii) any payment or application of the trust property or 11 the trust income, or any part of either of them, in 12 the way allowed by the power were to or for a 13 charitable purpose; and 14 (c) the existence or exercise of the prescribed power does 15 not affect the control of a prescribed trust by the court in 16 the exercise of the court's general jurisdiction in relation 17 to charitable trusts; and 18 (d) the jurisdiction mentioned in paragraph (c) extends to 19 the prescribed power as if the power were exercisable 20 for a charitable purpose.'. 21 Clause 85 Amendment of pt 11 hdg as renumbered 22 Part 11, as renumbered, heading, after `Transitional 23 provision'-- 24 insert-- 25 `for Trusts (Investments) Amendment Act 1999'. 26 Clause 86 Insertion of new pt 12 27 After section 119-- 28 insert-- 29 Page 58

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 5 Amendment of Trusts Act 1973 [s 86] `Part 12 Transitional provisions for 1 Criminal Proceeds 2 Confiscation and Other Acts 3 Amendment Act 2008 4 `120 Definitions for pt 12 5 `In this part-- 6 commencement day means the date of assent of the Criminal 7 Proceeds Confiscation and Other Acts Amendment Act 2008. 8 eligible recipient see section 107. 9 prescribed trust see sections 107 and 121. 10 `121 Application of pt 9 to existing trusts 11 `For part 9 and this part, a trust is a prescribed trust as defined 12 under section 107 whether the trust was created before, on or 13 after the commencement day. 14 `122 Validation 15 `(1) The provision, before the commencement day, by the trustees 16 of a prescribed trust of money, property or benefits to or for an 17 eligible recipient or for the establishment of an eligible 18 recipient-- 19 (a) is taken to be, and always to have been, a provision for 20 an authorised and valid purpose of the prescribed trust; 21 and 22 (b) does not affect, and is taken never to have affected, the 23 status of the prescribed trust as a charitable trust. 24 `(2) Subsection (1) applies despite anything to the contrary in the 25 trust instrument. 26 Page 59

 


 

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Part 5 Amendment of Trusts Act 1973 [s 86] `(3) The inclusion of a power referred to in section 108 in the trust 1 instrument of a prescribed trust before the commencement 2 day is taken to be, and always to have been, validly included.'. 3 State of Queensland 2008 Page 60

 


 

AMENDMENTS TO BILL

Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Criminal Proceeds Confiscation and Other Acts Amendment Bill 2008 Amendment agreed to during Consideration 1 Clause 74 (Amendment of s 21 (Grounds for suspension, cancellation or refusal to renew))-- At page 52, line 27, `omit,'-- omit. State of Queensland 2009

 


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