Part 4 Information gathering powers
(1) If an authorised officer has reasonable grounds for suspecting that a person has possession or control of a property-tracking document, or property-tracking documents, the authorised officer may:(a) lay before the Supreme Court an information on oath setting out those grounds, and(b) apply to the Court, ex parte, for a production order against the person suspected of having possession or control of the document or documents.(2) The Supreme Court may order the person against whom an application for a production order is made under subsection (1):(a) except in the case of bankers’ books, to produce to an authorised officer at a specified time, or between specified times, and at a specified place any property-tracking documents that are in the person’s possession or control, or(b) to make available to an authorised officer, for inspection at a specified time or times, or between specified times, at the place at which they are kept, any property-tracking documents that are in the person’s possession or control.(2A) A requirement to produce a document that is in electronic form, or to make any such document available for inspection, includes a requirement to produce, or make available, a hard copy form of the document, including the generation of reports or the extraction of data.(3) In this section:bankers’ books means any accounting records of a bank used in its ordinary business of banking, and includes ledgers, day-books, cash-books and account books.
34 Powers under production order
(1) If a document is produced to an authorised officer under a production order, the authorised officer may do any one or more of the following:(a) inspect the document,(b) take extracts from the document,(c) make copies of the document,(d) retain the document if, and for so long as, its retention is reasonably necessary for the purposes of this Act.(2) If a document is made available to an authorised officer for inspection under a production order, the authorised officer may do any one or more of the following:(a) inspect the document,(b) take extracts from the document,(c) make copies of the document.(3) An authorised officer who retains a document under subsection (1) (d) must, on request by the person against whom the order is made:(a) give the person a copy of the document certified by the authorised officer in writing to be a true copy of the document, and(b) unless the person has received a copy of the document under paragraph (a)—permit the person to do any one or more of the following:(i) inspect the document,(ii) take extracts from the document,(iii) make copies of the document.
35 Effect of production order on proceedings etc
(1) A person is not excused from complying with a production order on the ground that:(a) the production or making available of the document might tend to incriminate the person or make the person liable to a forfeiture or penalty, or(b) the production or making available of the document would be in breach of an obligation (whether imposed by an enactment or otherwise) of the person not to disclose the existence or contents of the document, or(c) the production or making available of the document would disclose information that is the subject of legal professional privilege.(2) If a person objects to a production order:(a) the production or making available of the document, or(b) any document or thing obtained as a consequence of the production or making available of the document,is not admissible against the person in any criminal proceedings except proceedings for an offence under section 37 (Failure to comply with production order).
36 Variation of production order
If the Supreme Court makes an order under section 33 requiring a person to produce a document to an authorised officer, the person may apply to the Court for a variation of the order and the Court may, if satisfied that the document is essential to the business activities of the person, vary the production order so that it requires the person to make the document available under section 33 (2) (b) to an authorised officer for inspection.
37 Failure to comply with production order
(1) If a person is required by a production order to produce a document to an authorised officer or to make a document available to an authorised officer for inspection, the person is guilty of an offence if the person:(a) contravenes the order without reasonable excuse, or(b) in purported compliance with the order produces or makes available a document known to the person to be false or misleading in a material particular without:(i) indicating to the authorised officer to whom the document is produced or made available that the document is false or misleading and the respect in which the document is false or misleading, and(ii) providing correct information to the authorised officer if the person is in possession of, or can reasonably acquire, the correct information.Maximum penalty: 500 penalty units if the offender is a body corporate or, in any other case, 100 penalty units or imprisonment for 2 years, or both.
(2) It is sufficient compliance with a requirement of a production order that a person produce a document or make a document available if:(a) the person has provided the Commission with a statement verified by statutory declaration to the effect that the person does not have possession and does not have control of the document, and(b) the Commission has notified the person in writing that the Commission is prepared to accept provision of the statement as compliance with the order.
37A Prohibited disclosures about production orders
(1) A person against whom a production order is made must not disclose:(a) the existence or nature of the order, or(b) any information to a person from which the person could reasonably be expected to infer the existence or nature of the order.Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
(2) Subsection (1) does not apply to a production order unless it (or a notice accompanying it) specifies that information about the order must not be disclosed.(3) A person does not contravene this section if:(a) the disclosure is made to an employee, agent or other person in order to obtain a property-tracking document to comply with the order and the employee, agent or other person is directed not to inform the person to whom the document relates about the matter, or(b) the disclosure is made to obtain legal advice or representation in relation to the order, or(c) the disclosure is made for the purposes of, or in the course of, legal proceedings.
Division 2 Search powers (general)
(1) An authorised officer under this Act may apply to an authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002, for the issue of a search warrant under this Division if the authorised officer under this Act has reasonable grounds for believing that there is or, within 72 hours, will be on any premises:(a) anything in which a person has an interest that constitutes serious crime derived property, or(b) anything in which a person has an interest that constitutes illegally acquired property of a person reasonably suspected of having been engaged in serious crime related activities, or(c) evidence of a serious crime related activity, or(d) evidence of illegal activity of a person reasonably suspected of having been engaged in serious crime related activities, or(e) property an interest in which is subject to a restraining order.(2) The authorised officer within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002 to whom the application for a search warrant is made may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising an authorised officer under this Act (who, if a member of the Police Force, need not be named in the warrant) to enter the premises and there search for any or all of the property or evidence referred to in subsection (1).(3) Nothing in this Division limits the operation of Division 2 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002.(4) Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this Division.
39 Seizure of property and searching of person
(1) The person or persons executing a search warrant under this Division may seize anything that might reasonably be suspected of being:(a) something in which a person has an interest that constitutes serious crime derived property, or(b) something in which a person has an interest that constitutes illegally acquired property of a person reasonably suspected of having been engaged in serious crime related activities, or(c) evidence of a serious crime related activity, or(d) evidence of illegal activity of a person reasonably suspected of having been engaged in serious crime related activities, or(e) property an interest in which is subject to a restraining order.(2) The power conferred by this section to seize anything includes:(a) power to remove it from the premises where it is found, and(b) power to guard it on those premises.(3) A person executing a search warrant issued under this Division may search a person found on the premises who might reasonably be suspected of being in possession of property or evidence that may be seized under this section.(4) A person executing a search warrant issued under this Division may:(a) examine any property or evidence seized in executing the warrant, and(b) inspect and test any such property, and(c) in the case of evidence that is a document—make copies of, and take extracts from, the document.
40 Responsibility for seized property
(1) If property or evidence is seized when a search warrant issued under this Division is executed, reasonable measures for its preservation while in custody are to be taken:(a) by the Commission, if the warrant was issued on the application of a member of the Commission, or(b) by the Commissioner of Police, if the warrant was issued on the application of a member of the Police Force.(2) A person authorised by the Commission for the purpose may:(a) examine any property or evidence seized when a search warrant issued under this Division is executed, including a warrant issued on the application of a member of the Police Force, and(b) inspect and test any such property, and(c) in the case of evidence that is a document—make copies of, and take extracts from, the document.
41 Return of certain seized property
(1) If:(a) property has been seized pursuant to a search warrant issued under this Division, and(b) at the time when the property was seized, a restraining order or other order under this Act affecting an interest in the property had not been applied for or granted, and(c) before the expiration of 7 days after the property was seized, such a restraining order or other order under this Act had not been applied for or granted or, if applied for, had been refused, and(d) the responsible person does not propose to use the property as evidence in any proceedings,the responsible person is to arrange for the property to be returned, at the expiration of that period, to the person from whose possession it was seized.(2) In this section:responsible person, in relation to property, means:
(a) if the property is in the custody, or under the control, of the Commission—the Commission, or(b) if the property is in the custody, or under the control, of a member of the Police Force—the Commissioner of Police.
42 Obstruction etc of person executing warrant
A person who, without reasonable excuse, obstructs or hinders a person executing a search warrant issued under this Division is guilty of an offence.Maximum penalty: 20 penalty units or imprisonment for 2 years, or both.
42A Disposal of seized property to Commission
(1) Anything seized pursuant to section 49 of the Law Enforcement (Powers and Responsibilities) Act 2002 may under subsection (3) of that section be directed by a court or Magistrate to be disposed of by being delivered into the custody or control of the Commission if the court or Magistrate is satisfied that the thing seized is proposed to be used in evidence in any proceedings under this Act.(2) Anything so delivered to the custody or control of the Commission is taken to have been seized (when it was delivered) pursuant to a search warrant under this Division.
Division 3 Search powers (property tracking)
43 Consent to search for, and to seizure of, property-tracking document
With the consent of the occupier of premises, an authorised officer may:(a) enter the premises, and(b) search the premises for any property-tracking document, and(c) seize any document found in the course of the search that the authorised officer believes, on reasonable grounds, to be a property-tracking document.
44 Application for search warrant for location of property-tracking document
If an authorised officer has reasonable grounds for suspecting that a property-tracking document is, or may be within the next following 72 hours, in or on any premises, the authorised officer may:(a) lay before the Supreme Court an information on oath setting out those grounds, and(b) apply to the Court for the issue of a search warrant under section 45 in respect of the premises.
45 Search warrant for location etc of property
(1) If an application is made under section 44 for a search warrant in respect of premises, the Supreme Court may issue a search warrant authorising an authorised officer (who, if a member of the Police Force, need not be named in the warrant), with such assistance, and by the use of such force, as is necessary and reasonable:(a) to enter the premises, and(b) to search the premises for property-tracking documents, and(c) to seize any document found in the course of the search that the authorised officer believes, on reasonable grounds, to be a property-tracking document.(2) The Supreme Court is not to issue a search warrant under this section unless the Court is satisfied that:(a) the document involved cannot be identified or described with sufficient particularity for the purpose of obtaining a production order in respect of the document, or(b) a production order has been made in respect of the document and has not been complied with, or(c) a production order in respect of the document would be unlikely to be effective because there are reasonable grounds to suspect that such a production order would not be complied with, or(d) the investigation for the purposes of which the search warrant is being sought might be seriously prejudiced if the authorised officer does not gain immediate access to the document without notice to any person.
46 Requirements of search warrant
There must be stated in a search warrant issued under section 45:(a) whether entry is authorised to be made at any time of the day or night or only during specified hours of the day or night, and(b) the date, not being later than one month after the day of issue of the warrant, on which the warrant ceases to have effect.
47 Other documents and evidence may be seized
If an authorised officer executing a search warrant issued under section 45:(a) finds any document or other thing that the authorised officer believes, on reasonable grounds, will afford evidence of a criminal offence (whether under the law of this State or the Commonwealth or another State or a Territory), and(b) believes, on reasonable grounds, that it is necessary to seize the document or thing in order to prevent its concealment, loss or destruction,the search warrant is to be taken to authorise seizure of the document or thing.
47A Legal professional privilege
(1) The fact that a document contains or may contain information that is the subject of legal professional privilege does not prevent seizure of the document under the authority of a search warrant issued under this Division.(2) If a person objects to the seizure of a document under the authority of such a search warrant on the ground that the document contains or may contain information that is the subject of legal professional privilege, any information, document or thing obtained as a direct or indirect consequence of the seizure of the document is not admissible in any criminal proceedings against the person entitled to claim that privilege.
(1) If an authorised officer has reasonable grounds for suspecting that a financial institution may obtain information about transactions conducted by a particular person with the institution, the officer may:(a) lay before the Supreme Court an information on oath setting out those grounds, and(b) apply to the Court for the making of an order directing the financial institution to give to the Commission, or to an authorised officer nominated by the Commission, information obtained by the institution about transactions conducted by the person with the institution.(2) The Supreme Court is not to make a monitoring order unless satisfied that there are reasonable grounds for suspecting that the person in respect of whose transactions the information is sought:(a) has been, or is about to be, involved in a serious crime related activity, or(b) has acquired, or is about to acquire, directly or indirectly, any serious crime derived property or, in the case of a person referred to in paragraph (a), any illegally acquired property, or(c) has acquired, or is about to acquire, any fraudulently acquired property.(3) A monitoring order must specify:(a) the nature of the transactions to be monitored, and(b) the kind of information that the institution is required to give, and(c) the manner in which the information is to be given.(4) A monitoring order applies in relation to transactions conducted during the period specified in the order (being a period commencing not earlier than the day on which notice of the order is given to the financial institution and ending not later than 3 months after the date of the order).(5) If the Supreme Court makes a monitoring order, the Commission must give notice of the order to the financial institution to which the order applies.
49 Offences relating to monitoring order
A financial institution that has been given notice of a monitoring order is guilty of an offence if it knowingly:(a) contravenes the order, or(b) provides false or misleading information in purported compliance with the order.Maximum penalty: 1,000 penalty units.
50 Existence and operation of monitoring order not to be disclosed
(1) A financial institution that is, or has been, subject to a monitoring order is guilty of an offence if it discloses the existence or the operation of the order to any person (including the person to whom the order relates) except:(a) the Commission or the person authorised by the Commission and named in the order, or(b) an officer or agent of the institution, for the purpose of ensuring that the order is complied with, or(c) an Australian legal practitioner, for the purpose of obtaining legal advice or representation in relation to the order.Maximum penalty: 1,000 penalty units.
(2) A person described in subsection (1) (a), (b) or (c) to whom the existence or operation of a monitoring order has been disclosed (whether in accordance with subsection (1) or a previous application of this subsection or otherwise) is guilty of an offence if he or she:(a) while still a person so described—discloses the existence or operation of the order, otherwise than to another person described in subsection (1) (a), (b) or (c) for the purpose of:(i) if the disclosure is made by a person described in subsection (1) (a) or (b)—the performance of that person’s duties, or(ii) if the disclosure is made by an officer or agent of the institution—ensuring that the order is complied with or obtaining legal advice or representation in relation to the order, or(iii) if the disclosure is made by an Australian legal practitioner—giving legal advice, or making representations, in relation to the order, or(b) while no longer a person so described—makes a record of, or discloses, the existence or operation of the order in any circumstances.Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.
(3) Nothing in subsection (2) prevents the disclosure by a person described in subsection (1) (a) of the existence or operation of a monitoring order:(a) for the purposes of, or in connection with, legal proceedings, or(b) in the course of proceedings before a court.(4) A person described in subsection (1) (a) is not to be required to disclose to any court the existence or operation of a monitoring order.(5) A reference in this section to disclosing the existence or operation of a monitoring order to a person includes a reference to disclosing to the person information from which the person could reasonably be expected to infer the existence or operation of the monitoring order.
51 Communication of information by financial institutions to prescribed authorities
(1) If a financial institution has reasonable grounds for believing that information it has about a transaction with the institution:(a) might be relevant to an investigation of a serious crime related activity or the making of a confiscation order, or(b) might otherwise be of assistance in the enforcement of this Act or the regulations,the institution may give the information to the Commission.(1A) The Commission may at any time request a financial institution to give information to the Commission about a transaction with the institution that might be of assistance in the enforcement of this Act or the regulations.(2) An action, suit or proceeding does not lie against:(a) a financial institution, or(b) an officer, employee or agent of the institution acting in the course of the person’s employment or agency,in relation to the giving of the information by the institution or person under subsection (1) or (1A).
52 Protection for financial institution—money laundering
(1) If a financial institution is, or has been, subject to a monitoring order, the fact that the monitoring order has been made is to be disregarded for the purposes of section 73 (Money laundering) of the Confiscation of Proceeds of Crime Act 1989 in relation to the institution.(2) If a financial institution, or a person who is an officer, employee or agent of the institution, gives information pursuant to section 51 as soon as practicable after forming the belief referred to in that section, the institution or person is to be taken, for the purposes of section 73 of the Confiscation of Proceeds of Crime Act 1989 (Money laundering) not to have been in possession of the information at any time.