Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Hansard source

by leave—I move government amendments (1) to (6) on sheet AF236 together:

(1)    Clause 2, page 2 (table item 5), omit “Part 6”, substitute “Parts 6 and 7”.

(2)    Schedule 1, item 13, page 9 (line 32), omit “so.”, substitute “so; or”.

(3)    Schedule 1, item 13, page 9 (after line 32), at the end of subsection 179C(5), add:

             (c)    it is otherwise in the interests of justice to do so.

(4)    Schedule 2, item 3, page 31 (lines 7 to 17), omit section 15J, substitute:

15J  Service of freezing order etc. on financial institution and account-holder

        (1)    If a magistrate makes a ^*freezing order relating to an ^*account with a ^*financial institution, the applicant for the order must cause the things described in subsection (2) to be given to:

             (a)    the financial institution; and

             (b)    each person in whose name the account is held.

        (2)    The things are as follows:

             (a)    a copy of the order (or of a form of the order under section 15E);

             (b)    a written statement of the name and contact details of the ^*enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the applicant.

Note:   If the copy of the order is given to the financial institution after the end of the first working day after the order is made, the order does not come into force: see subsection 15N(1).

(5)    Schedule 2, item 3, page 34 (after line 27), at the end of Part 2-1A, add:

Division 6—Revoking freezing orders

15R  Application to revoke a freezing order

        (1)    A person may apply to a magistrate to revoke a ^*freezing order.

        (2)    The applicant for the revocation must give written notice of the application and the grounds on which the revocation is sought to the ^*enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the ^*authorised officer who applied for the ^*freezing order.

        (3)    One or more of the following may adduce additional material to the magistrate relating to the application to revoke the ^*freezing order:

             (a)    the ^*authorised officer who applied for the freezing order;

             (b)    the authorised officer whose affidavit supported the application for the freezing order;

             (c)    another authorised officer described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer mentioned in paragraph (a) or (b) of this subsection.

        (4)    The magistrate may revoke the ^*freezing order if satisfied that it is in the interests of justice to do so.

15S  Notice of revocation of a freezing order

        (1)    If a ^*freezing order relating to an ^*account with a ^*financial institution is revoked under section 15R, an ^*authorised officer (the notifying officer) described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer who applied for the freezing order must cause written notice of the revocation to be given to:

             (a)    the financial institution; and

             (b)    each person in whose name the account is held.

        (2)    However, the notifying officer need not give notice to the applicant for the revocation.

        (3)    Subsection (1) does not require more than one ^*authorised officer to cause notice of the revocation to be given.

(6)    Schedule 2, page 51 (after line 19), at the end of the Schedule, add:

Part 7—Other amendments

Proceeds of Crime Act 2002

106  Subsection 42(5)

Repeal the subsection, substitute:

        (5)    The court may revoke the ^*restraining order if satisfied that:

             (a)    there are no grounds on which to make the order at the time of considering the application to revoke the order; or

             (b)    it is otherwise in the interests of justice to do so.

107  Application and transitional

(1)    The amendment of section 42 of the Proceeds of Crime Act 2002 made by this Part applies in relation to the revocation of a restraining order on or after commencement, whether the application for that revocation was made before, on or after commencement.

(2)    If an application under section 42 of the Proceeds of Crime Act 2002 for the revocation of a restraining order has been made but not determined as at commencement:

             (a)    the applicant may vary the application to take account of paragraph 42(5)(b) of the Proceeds of Crime Act 2002 as in force at commencement; and

             (b)    if the application is varied under paragraph (a) of this subitem—the applicant must give a copy of the application as varied, and written notice of any additional grounds that he or she proposes to rely on in seeking that revocation, to the DPP and the Official Trustee; and

             (c)    the DPP may adduce additional material to the court relating to those additional grounds.

(3)    In this item:

commencement means the commencement of this item.

The amendments insert further safeguards that enable a person affected by a preliminary unexplained wealth order, restraining order or freezing order to apply for revocation on the grounds that it would be in the interests of justice to revoke the order. The amendments respond to the High Court’s decision in International Finance Trust Co. Ltd v New South Wales Crime Commission 2009.

Amendment (1) is a minor amendment required to clarify that parts 6 and 7 of the bill will commence on the day after royal assent. This is necessary because amendment (6) introduces part 7. I will come to that issue again shortly. Amendment (2) is a minor amendment to proposed paragraph 179C(5)(b), which deals with applications to revoke a preliminary unexplained wealth order. It adds the word ‘or’ to the end of the paragraph to allow for the inclusion of an additional ground for revoking a preliminary unexplained wealth order to be inserted. Amendment (3) adds an additional ground. The court may revoke the order if it is in the interests of justice to do so. It inserts the additional ground on which the court may grant revocation of a preliminary unexplained wealth order. Currently, the proposed paragraph 179C(5)(b) states that a court may revoke such an order on application if it is satisfied that there are no grounds on which to make the order at the time of considering the application to revoke the order or it is in the public interest to do so.

Amendment (4) finetunes the service requirements set out in proposed section 15J that apply to freezing orders to ensure that financial institutions and account holders are notified that a freezing order has been made. The new section states that if a magistrate makes a freezing order the authorised officer that applied for that order must provide a range of things to the financial institution and to each account holder. These include a copy of the freezing order and a written statement of the name and contact details of the enforcement agency with which the officer that applied for the said order is associated as defined under the Proceeds of Crime Act.

Amendment (5) inserts a new division 6 to enable a person to apply to have a freezing order revoked and sets out the process for doing so. Amendment (5) allows a court to revoke a freezing order if it is in the interests of justice to do so. This will ensure that a court that is hearing a revocation application can have regard to matters relevant to the administration of justice.

Amendment (6) repeals existing section 42(5) of the Proceeds Of Crime Act 2002, which sets out the current test for revoking a restraining order and replaces it with a new section setting out a broader test for revoking a restraining order. Under the current test, such an order can only be revoked if the court is satisfied there are no grounds on which to make the order. Under this new section, the court will be able to revoke a restraining order if it is satisfied that there is no basis on which to make the order at the time the revocation application is to be considered or if it is satisfied it is otherwise in the interests of justice to do so. Amendment (6) also provides application and transitional provisions which will allow all people to access the new expanded grounds for revocation, regardless of whether the application was made before, on or after commencement.