Page 913 - Week 03 - Thursday, 28 February 2013
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held by the Public Trustee has been paid to the commonwealth Commissioner for Taxation. Accordingly, existing part 5 in this act is no longer necessary.
The stated purposes of the Confiscation of Criminal Assets Act 2003 include to deprive a person of all material advantage derived from the commission of an offence; and to deprive a person of property used or intended to be used in relation to the commission of an offence and to prevent the person using that property to commit other offences.
Fundamental to the operation of the act is the making of restraining orders by a court in order to prevent dealings with property, or to secure a property for payment of a penalty order. To ensure the restraining order is complied with, the act provides for the registration of the restraining order, whether over real and personal property, in the appropriate statutory property register.
In the case of real property, the responsible authority may lodge a copy of the restraining order with the Registrar-General so that a caveat may be issued over the title to the land. This is intended to prevent any dealings with the land until the restraining order is lifted.
The act provides for lodgement of the restraining order for registration under division 10.4 of the Land Titles Act 1925. Division 10.4 of that act provides for caveats to prevent dealings with land on application by a person who claims to have a legal interest in that land. For this reason, section 50(4) of the Confiscation of Criminal Assets Act provides that the responsible authority is, on behalf of the territory, taken to be a person claiming an interest in the land. Division 10.4 caveats are also subject to a lapsing provision within the division.
To give effect to the court’s order, it is more appropriate for the Registrar-General to issue a caveat under section 14(1)(g) of the Land Titles Act to prevent a fraud or an improper purpose rather than under division 10.4. A caveat issued under section 14(1)(g) would not be subject to the lapsing provisions in division 10.4 and would not require the responsible authority to claim an interest in the land.
This bill recasts the provision to state that the restraining order or details of the restraining order may be recorded in the register on the responsible authority giving a copy of the restraining order to the Registrar-General. A note is included in the new paragraph which refers to the power that the Registrar-General has under section 14(1)(g) of the Land Titles Act to enter a caveat to prevent any fraud or improper dealing.
This proposed amendment ensures that the objectives of the confiscation of criminal assets scheme are achieved and also gives legislative recognition to the current practice used by the Land Titles Office when registering restraining orders on the title to real property.
Part 20 of the Crimes Act 1900 provides for inquiries into convictions. Section 430, in particular, provides for the action that must be taken by the Full Court when considering a report by the board into an inquiry. The Crimes Legislation Amendment Act 2001 introduced the equivalent of section 430 into the Crimes Act.
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