Part 2—General provisions relating to requests by the ICC for cooperation

7 What constitutes a request for cooperation
(1)
(a)
(xii) the identification, tracing, and freezing or seizure, of the proceeds of crimes within the jurisdiction of the ICC for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and

Part 4—Other requests by ICC

Division 14—Identification, tracing, and freezing or seizure, of proceeds of crimes within the jurisdiction of the ICC

Subdivision A—Preliminary

81 Application of Division
This Division applies if:
(a) the ICC makes a request (a proceeds request) to the Attorney-General for the identification, tracing, and freezing or seizure, of the proceeds of a crime within the jurisdiction of the ICC; and
(b) the Attorney-General is satisfied that a person (in this Division called the defendant):
(i) has been, or is about to be, charged with the crime before the ICC; or
(ii) has been convicted by the ICC of the crime.

81A Authorising applications under the Proceeds of Crime Act
The Attorney-General may authorise, in writing, an authorised officer of an enforcement agency to make such applications under the Proceeds of Crime Act as are necessary to respond to the proceeds request if the Attorney-General is satisfied that the proceeds request:
(a) relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(b) is for assistance that can be obtained from one or more production orders, monitoring orders or search warrants under the Proceeds of Crime Act.

Subdivision B—Restraining orders

82 Applying for and making restraining orders
(1) If the proceeds request involves the making of a restraining order, the Attorney-General is to authorise a proceeds of crime authority to apply for a restraining order against the property concerned.
(3) If so authorised, a proceeds of crime authority may apply for such a restraining order against that property in respect of the crime.
(4) Part 2-1 of the Proceeds of Crime Act applies to the application, and to any restraining order made as a result.
(5) It applies as if:
(a) references in that Part to an indictable offence were references to the crime that is the subject of the proceeds request; and
(c) references in that Part to a person charged with an indictable offence were references to a person against whom a criminal proceeding in respect of a crime within the jurisdiction of the ICC has commenced in the ICC; and
(d) references in that Part to it being proposed to charge a person with an indictable offence were references to it being reasonably suspected that criminal proceedings are about to commence against the person in the ICC in respect of a crime within the jurisdiction of the ICC; and
(e) paragraphs 17(1)(e) and (f), subsections 17(3) and (4) and sections 18 to 20A, 29, 29A and 44 to 45A of that Act were omitted.

83 Excluding property from restraining orders
If:
(a) a court makes a restraining order under Part 2-1 of the Proceeds of Crime Act against property in respect of the crime within the jurisdiction of the ICC; and
(b) a person having an interest in the property applies to the court under Division 3 of Part 2-1 of that Act for an order varying the restraining order to exclude the person’s interest from the restraining order;
the court must grant the application if the court is satisfied that:
(c) in a case where the applicant is not the defendant:
(i) the applicant was not, in any way, involved in the commission of the crime; and
(ii) if the applicant acquired the interest at the time of or
after the commission, or alleged commission, of the crime—the property was not proceeds of the crime; or
(d) in any case—it is in the public interest to do so having regard to any financial hardship or other consequence of the interest remaining subject to the order.

84 When restraining order ceases to be in force
(1) If, at the end of the period of one month after the making of a restraining order in reliance on the proposed charging of a person with a crime within the jurisdiction of the ICC, the person has not been charged with the crime or a related crime within the jurisdiction of the ICC, the order ceases to be in force at the end of that period.
(2) If:
(a) a restraining order is made in reliance on a person’s conviction of a crime within the jurisdiction of the ICC or the charging of a person with such a crime; or
(b) a restraining order is made in reliance on the proposed charging of a person with a crime within the jurisdiction of the ICC and the person is, within one month after the making of the order, charged with the crime or a related crime within the jurisdiction of the ICC;
the following provisions have effect:
(c) if the charge is withdrawn and the person is not charged with
a related crime within the jurisdiction of the ICC within 28 days after the day on which the charge is withdrawn, the restraining order ceases to be in force at the end of that period;
(d) if the person is acquitted of the charge and the person is not
charged with a related crime within the jurisdiction of the ICC within 28 days after the day on which the acquittal occurs, the restraining order ceases to be in force at the end of that period;
(e) if some or all of the property subject to the restraining order is forfeited under Part 11, the restraining order, to the extent
to which it relates to that property, ceases to be in force when that property is forfeited;
(f) the restraining order ceases to be in force if and when it is revoked.

Subdivision C—Production orders relating to crimes within the jurisdiction of the ICC

86 Applying for and making production orders
(1) An authorised officer may apply for a production order under the Proceeds of Crime Act in respect of the crime that is the subject of the proceeds request, if authorised to do so by the Attorney-General under section 81A.
(2) Part 3-2 of the Proceeds of Crime Act applies to the application, and to any production order made as a result.
(3) It applies as if:
(a) references in that Part to an indictable offence or to a serious
offence were references to the crime that is the subject of the proceeds request; and
(b) subparagraphs 202(5)(a)(ii) and (c)(ii), paragraph 202(5)(e) and subsection 205(1) of that Act were omitted.

87 Retaining produced documents
(1) An authorised officer who takes possession of a document under a production order made in respect of a crime within the jurisdiction of the ICC may retain the document pending a written direction from the Attorney-General as to how to deal with the document.
(2) Directions from the Attorney-General may include a direction that the document be sent to the ICC.

Subdivision D—Notices to financial institutions

88 Giving notices to financial institutions
(1) A senior police officer may give a written notice to a financial institution requiring the institution to provide to an authorised officer any information or documents relevant to any one or more of the following:
(a) determining whether an account is held by a specified person with the financial institution;
(b) determining whether a particular person is a signatory to an account;
(c) if a person holds an account with the institution, the current balance of the account;
(d) details of transactions on such an account over a specified period of up to 6 months;
(e) details of any related accounts (including names of those who hold those accounts);
(f) a transaction conducted by the financial institution on behalf of a specified person.
(2) The senior police officer must not issue the notice unless he or she reasonably believes that giving the notice is required:
(a) to determine whether to take any action under this Division,
or under the Proceeds of Crime Act in connection with the operation of this Division; or
(b) in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division.
(3) A senior police officer is a person covered by paragraph 213(3)(a), (b) or (c) of the Proceeds of Crime Act.

89 Contents of notices to financial institutions
The notice must:
(a) state that the officer giving the notice believes that the notice is required:
(i) to determine whether to take any action under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division; or
(ii) in relation to proceedings under this Division, or under the Proceeds of Crime Act in connection with the operation of this Division; (as the case requires); and
(b) specify the name of the financial institution; and
(c) specify the kind of information or documents required to be provided; and
(d) specify the form and manner in which that information or those documents are to be provided; and
(e) state that the information or documents must be provided within 14 days after the day on which the notice is received; and
(f) if the notice specifies that information about the notice must not be disclosed—set out the effect of section 92 (disclosing existence or nature of a notice); and
(g) set out the effect of section 93 (failing to comply with a notice).

90 Protection from suits etc. for those complying with notices
(1) No action, suit or proceeding lies against:
(a) a financial institution; or
(b) an officer, employee or agent of the institution acting in the course of that person’s employment or agency;
in relation to any action taken by the institution or person under a notice under section 88 or in the mistaken belief that action was required under the notice.
(2) A financial institution which, or an officer, employee or agent of a financial institution who, provides information under a notice under section 88 is taken, for the purposes of Part 10.2 of the Criminal Code (offences relating to money-laundering), not to have been in possession of that information at any time.

91 Making false statements in applications
A person commits an offence if:
(a) the person makes a statement (whether orally, in a document or in any other way); and
(b) the statement:
(i) is false or misleading; or
(ii) omits any matter or thing without which the statement is misleading; and
(c) the statement is made in, or in connection with, a notice under section 88.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.

92 Disclosing existence or nature of notice
A person commits an offence if:
(a) the person is given a notice under section 88; and
(b) the notice states that information about the notice must not be disclosed; and
(c) the person discloses the existence or nature of the notice.
Penalty: Imprisonment for 2 years or 120 penalty units, or both

93 Failing to comply with a notice
(1) A person commits an offence if:
(a) the person is given a notice under section 88; and
(b) the person fails to comply with the notice.
Penalty: Imprisonment for 2 years or 100 penalty units, or both.
(2) Subsection (1) does not apply if:
(a) the person fails to comply with the notice only because the
person does not provide information or a document within the period specified in the notice; and
(b) the person took all reasonable steps to provide the information or document within that period; and
(c) the person provides the information or document as soon as practicable after the end of that period.

Subdivision E—Monitoring orders relating to crimes within the jurisdiction of the ICC

95 Applying for and making monitoring orders
(1) An authorised officer may apply for a monitoring order under the Proceeds of Crime Act in respect of the crime that is the subject of the proceeds request, if authorised to do so by the Attorney-General under section 81A.
(2) Part 3-4 of the Proceeds of Crime Act applies to the application, and to any monitoring order made as a result.
(3) It applies as if:
(a) references in that Part to a serious offence were references to the crime that is the subject of the proceeds request; and
(b) disclosing the existence or the operation of the order for the purpose of complying with a person’s obligations under section 96 of this Act were a purpose specified in subsection 223(4) of the Proceeds of Crime Act.

96 Passing on information given under monitoring orders
If an enforcement agency is given information under a monitoring order made in relation to a crime within the jurisdiction of the ICC, the enforcement agency must, as soon as practicable after receiving the information, pass the information on to:
(a) the Attorney-General; or
(b) an APS employee in the Attorney-General’s Department specified by the Attorney-General by written notice to the enforcement agency.

Subdivision F—Search warrants relating to proceeds of crime and evidential material

98 Applying for and issuing search warrants
(1) An authorised officer may apply for a search warrant under the Proceeds of Crime Act in respect of the crime that is the subject of the proceeds request, if authorised to do so by the Attorney-General under section 81A.
(2) Part 3-5 of the Proceeds of Crime Act applies to the application, and to any POCA search warrant issued as a result.
(3) It applies as if:
(a) a reference in that Part to tainted property were a reference to proceeds of the crime that is the subject of the proceeds request; and
(b) a reference in that Part to evidential material were a reference to evidential material as defined in section 4 of this Act for the purposes of this Subdivision; and
(c) the words “or section 100, 101 or 102 of the International Criminal Court Act 2002” were inserted after “this Act” in paragraph 254(1)(a) of the Proceeds of Crime Act; and
(d) paragraphs 227(1)(a), (b), (h) and (ha) and 228(1)(d) and (da) and sections 256 to 262 of the Proceeds of Crime Act were omitted.

99 Contents of POCA search warrants
A POCA search warrant in relation to a crime within the jurisdiction of the ICC must state that the warrant authorises the seizure of property or a thing found by an authorised officer, or a person assisting in relation to the warrant, in the course of the search if the authorised officer or person assisting believes on reasonable grounds that:
(a) the property or thing:
(i) is proceeds of the crime that are not of a kind specified in the warrant; or
(ii) is evidential material relating to the crime that is not of a kind specified in the warrant; or
(iii) is proceeds of, or evidential material relating to, another crime within the jurisdiction of the ICC in relation to which a POCA search warrant is in force; or
(iv) is relevant to a proceeding in the ICC in respect of the crime within the jurisdiction of the ICC; or
(v) will afford evidence as to the commission of an offence against an Australian law; and
(b) the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

99A Seizure of certain property or things found in the course of search
A POCA search warrant in relation to a crime within the jurisdiction of the ICC authorises an authorised officer, or a person assisting in relation to the warrant, to seize property or a thing found by the authorised officer or person assisting in the course of the search if the authorised officer or person assisting believes on reasonable grounds that:
(a) the property or thing:
(i) is proceeds of the crime that are not of a kind specified in the warrant; or
(ii) is evidential material relating to the crime that is not of a kind specified in the warrant; or
(iii) is proceeds of, or evidential material relating to, another crime within the jurisdiction of the ICC in relation to which a POCA search warrant is in force; or
(iv) is relevant to a proceeding in the ICC in respect of the crime within the jurisdiction of the ICC; or
(v) will afford evidence as to the commission of an offence against an Australian law; and
(b) the seizure of the property or thing is necessary to prevent its concealment, loss or destruction or its use in committing an offence.

100 Return of seized property to third parties
(1) A person who claims an interest in property that has been seized under a POCA search warrant in relation to a crime within the jurisdiction of the ICC may apply to a court for an order that the property be returned to the person.
(2) The court must be a court of the State or Territory in which the POCA search warrant was issued that has proceeds jurisdiction.
(3) The court must order the responsible enforcement agency head to return the property to the applicant if the court is satisfied that:
(a) the applicant is entitled to possession of the property; and
(b) the property is not proceeds of the relevant crime within the jurisdiction of the ICC; and
(c) the person who is believed or alleged to have committed the relevant crime within the jurisdiction of the ICC has no interest in the property.
(4) If the court makes such an order, the responsible enforcement agency head must arrange for the property to be returned to the applicant.
(5) This section does not apply to property that has been seized under a POCA search warrant because:
(a) it is evidential material; or
(b) it is property of a kind referred to in subparagraph 99A(a)(iv) or (v).

101 Dealing with certain seized property
(1) Property must be dealt with in accordance with this section if:
(a) it has been seized under a POCA search warrant in relation to a crime within the jurisdiction of the ICC; and
(b) it is not:
(i) evidential material; or
(ii) property of a kind referred to in subparagraph 99A(a)(iv) or (v).

General rule—property to be returned after 30 days
(2) If, at the end of the period of 30 days after the day on which the property was seized:
(a) a forfeiture order in relation to the property has not been registered in a court under Part 11; and
(b) a restraining order has not been made as described in Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC; the responsible enforcement agency head must, unless subsection (3), (5) or (7) applies, arrange for the property to be returned to the person from whose possession it was seized as soon as practicable after the end of that period.

Effect of restraining orders being registered or obtained
(3) If, before the end of that period, a restraining order is made as described in Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC, the responsible enforcement agency head:
(a) if there is in force, at the end of that period, a direction by a court that the Official Trustee take custody and control of the property—must arrange for the property to be given to the Official Trustee in accordance with the direction; or
(b) if there is in force at the end of that period an order under subsection (6) in relation to the property—must arrange for the property to be retained until it is dealt with in accordance with another provision of this Act or the Proceeds of Crime Act.
(4) If the property is subject to a direction of a kind referred to in paragraph (3)(a), the Proceeds of Crime Act applies to the property as if it were controlled property within the meaning of that Act.

Retaining property despite restraining orders
(5) If, at a time when the property is in the possession of the responsible enforcement agency head, a restraining order has been made as described in Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC, the responsible enforcement agency head may apply to the court in which the restraining order was registered, or by which the restraining order was made, for an order that the responsible enforcement agency head retain possession of the property.
(6) If the court is satisfied that the responsible enforcement agency head requires the property to be retained to give effect to the proceeds request, the court may make an order that the responsible enforcement agency head may retain the property for so long as the property is so required.

Effect of forfeiture orders by the ICC being registered or obtained
(7) If, while the property is in the possession of the responsible enforcement agency head, a forfeiture order in respect of the property is registered in a court under Part 11, the responsible enforcement agency head must deal with the property as required by the forfeiture order.

102 Dealing with evidential material and certain property or things seized under POCA search warrants
(1) This section applies if:
(a) property or a thing (the seized item) is seized under a POCA search warrant in relation to a crime within the jurisdiction of the ICC; and
(b) the seized item is:
(i) evidential material; or
(ii) property or a thing of a kind referred to in subparagraph 99A(a)(iv); and
(c) the seized item is seized by a person (the seizing officer) who is:
(i) an authorised officer; or
(ii) a person assisting in relation to the warrant.
(2) The seizing officer may retain the seized item for a period not exceeding 1 month pending a written direction from the Attorney-General as to how to deal with the seized item.
(3) Without limiting the directions that may be given under subsection (2), the Attorney-General may direct the seizing officer to send the seized item to the ICC.