Page 5604 - Week 17 - Thursday, 5 December 1991
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may take the form of either forfeiture orders or orders for pecuniary penalties, or a combination of both, where this is appropriate.
Pecuniary penalty orders may be made against the defendant. These orders require the court to assess the benefit which the offender derived directly or indirectly from the commission of the offence, assigning a monetary value to that benefit and making a pecuniary penalty order equal to that amount. Once such an order has been made, it can be enforced as a civil debt and is provable in bankruptcy proceedings.
The legislation also contains provisions to enable courts to look behind the legal ownership of property to determine whether that property is subject to the effective control of the defendant, having regard to such things as shareholdings or directorships of companies, any trust that has a relationship to the property, family and business relationships and the like.
This Bill also provides for statutory forfeiture in limited circumstances. Where a person is convicted of a serious offence, defined to be a narcotics offence involving a traffickable quantity of drugs, an organised fraud offence or an offence of money laundering the proceeds of such drug trafficking or organised fraud, that person is liable to have all property which is the subject of a restraining order six months after the date of his or her conviction forfeited by force of statute, unless the person can establish that the property was lawfully acquired.
Restraining orders may be made under the provisions of the Bill. The court may direct that property specified in the order not be disposed of or otherwise dealt with by any person other than in accordance with the terms of the order or may require the Public Trustee to take custody and control of the property specified in the order. A court may make a restraining order where it is satisfied that there are reasonable grounds for believing that the defendant committed the offence alleged and that the property the subject of an application either is tainted property or may be required to satisfy a pecuniary penalty order.
Restraining orders may be varied by a court on the application of any person holding an interest in the property the subject of the order. Restraining orders may be registered on registers of title and, when combined with pecuniary penalty orders, give rise to a statutory charge over that property.
The Bill confers effective powers on police to gain access to documents relevant to following the money trail and transferring tainted property. The first of these new measures is a production order, directing a person who has property tracking documents in his or her possession or
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