Level18 State law Building so Ann Street Brisbane 4000 GPO Box … · 2014. 4. 1. · Offender Certificate' (PSDOC) if it is satisfied that the offender has been convicted of a prescribed

The Hon Jarrod Bleijie MP Attorney-General and Minister for Justice

QUEENSlAND GO\'f:RNMENT

In reply please quote: 2001988

The Honourable Justice M McMurdo AC

President c'P Court of Appeal · The Supreme Court of Queensl d ·, ~ PO Box 15167 ~ j' CITY EAST QLD 4002 ' ~ 1

./

Dear President

Level18 State law Building so Ann Street Brisbane 4000 GPO Box 149 Brisbane Queensland /1 Australia Telephone 617 3247 9068 Facsimi +617 32214352 Ema [email protected]

This Government has committed to intr. duce unexplained wealth orders and drug trafficking declarations into the crimi I proceeds confiscations laws of Queensland.

I intend to introduce a Bill into th egislative Assembly honouring these election commitments before the end of e year.

Ideally I would like to be in position to provide you with a draft Bill before its introduction so that I can receive your eedback. While this is still my preferred course of action, there is a possibility that time ill not permit this to occur.

Therefore, as a trust d and respected justice stakeholder, I would like to take this opportunity to fore adow the nature of the amendments the Government is considering in order to fulfil our ection commitments. I am also considering a number of other technical amendments to he criminal proceeds regime in Queensland that will assist in its general operation.

I ask that ou treat this information confidentially.

Unexplained Wealth Orders

The Bill will include the introduction of Unexplained Wealth Orders into the Criminal Proceeds Confiscation Act 2002 (CPCA). The current proceeds assessment orders will remain.

RTI140215: File 3: Page 408

It is proposed that the Bill will contain amendments to Chapter 2 of the CPCA that:

• provide that the Supreme Court must make an unexplained wealth order if the Court is satisfied that there is a reasonable suspicion that:

o a person has engaged in a serious crime related activity or serious crime related activities; or

o that a person has acquired without providing sufficient consideration, serious crime derived property from any serious crime related activity of another person (whether or not the respondent knew or suspected that the property was derived from illegal activities); and

o that the total value of the person's wealth is greater than the value of the person's lawfully acquired wealth.

• provide that the onus of proving that any of the respondent's wealth was lawfully acquired lies with the respondent;

• provide that the Supreme Court has a discretion not to make an unexplained wealth order if it is satisfied that it not in the public interest to do so; and

• provide that if the Supreme Court makes an unexplained wealth order a respondent to such an application must pay to the State the amount that the Court determines is the difference between the total value of the respondent's wealth at the date of application and the value of the respondent's lawfully acquired wealth at the date of the application.

Drug Trafficking Declarations (to be called the 'Prescribed Serious Drug Offender Scheme' in Queensland)

I propose to introduce into Queensland a 'Prescribed Serious Drug Offender Scheme' (PSDOS) that will provide for amendments to both the CPCA and Penalties and Sentences Act 1992 (PSA). The scheme will work in the following way:

the PSDOS will have its own Chapter in the CPCA (the PSDOS chapter);

the PSDOS chapter will be administered by the Crime and Misconduct Commission (CMC) with the Office of the Director of Public Prosecutions appearing as solicitor on the record;

the PSDOS chapter will apply to all offenders who meet the statutory criteria for a Prescribed Serious Drug Offender. Prescribed Serious Drug Offenders will be those offenders found guilty of a single drug trafficking offence (Category A offences) or three serious drug offences (Category B & C offences) committed in a seven year period ('the prescribed serious drug offences'). The proposed prescribed serious drug offences are set out below and focus on drug offences which contain an element of drug supply, cultivation or production. The schedules containing the prescribed serious drug offences will be inserted into the PSA;

the PSDOS chapter will allow for the restraint of all assets belonging to a defendant who has been charged with a qualifying prescribed offence or offences;


the PSA will provide that upon the sentencing of an offender for any of the prescribed serious drug offences the sentencing Court must issue a 'Prescribed Serious Drug Offender Certificate' (PSDOC) if it is satisfied that the offender has been convicted of a prescribed serious drug offence or offences;

the PSDOS chapter will provide that within six months of the qualifying certificate being issued, the CMC may bring an application to the Queensland Supreme Court for the confiscation of the prescribed serious drug offender's assets. If this discretion is not exercised within six months, the certificate/s must lapse;

upon being presented with a PSDOC and being satisfied the offender meets the statutorily prescribed criteria, the Supreme Court must make a Serious Drug Offender Confiscation Order (SDOCO) for the confiscation to the State of all the assets that the Supreme Court determines are under the offender's effective control (other than excluded assets) and all assets that were gifted by the offender to others in the six year period prior to the date of charge. However, the Supreme Court may determine not to make the order if it is satisfied that it is not in the public interest to do so; and

the PSDOS chapter will provide that excluded assets would fall into two categories:

1. assets retained for the benefit of the offender- the offender will be able retain any assets under their effective control that could not be taken in proceedings against the offender under the laws of bankruptcy; and

2. assets retained for the benefit of the offender's dependents: -applications may be made by innocent dependants with respect to: i) testamentary gifts; and ii) principle places of residence purchased at least six years before the charge date for the relevant prescribed offence.

The 'Prescribed Serious Drug Offences' referred to above are proposed to be as follows (all references to Sections and Schedules are to the Drugs Misuse Act 1986 (Qid)):

• Category A- Drug Trafficking Offences

- Section 5(a)- Trafficking in a schedule 1 drug.

Section 5(b)- Trafficking in a schedule 2 drug.

• Category 8 -Serious Drug Offences

- Section 6(1)(a)(2)- Supplying a schedule 1 drug- aggravated supply- in an amount of or over that listed in schedules 3 or 4.

Section 6(1)(b)- Supplying a schedule 1 drug in an amount of or above that listed in schedules 3 or 4.

Section 6(1)(c)(2)- Supplying a schedule 2 drug- aggravated supply- in an amount of or over that listed in schedules 3 or 4.

- Section 6(1)(d)- Supplying a schedule 2 drug- in an amount of or over that listed in schedules 3 or 4.


- Section 7(1) & (2)- Receiving or possessing property obtained from trafficking or supplying.

- Section 8(a)- Producing a schedule 1 drug in excess of schedule 4.

- Section 8(b)(i)&(ii)- Producing a schedule 1 drug in excess of schedule 3.

- Section 8(c)- Producing a schedule 1 drug.

- Section 8(d)- Producing a schedule 2 drug in excess of schedule 3.

- Section 1 OB) - Possession of prohibited combination of items.

• Category C- Serious Drug Offences only where a commercial purpose has been accepted by the sentencing Court

Section 8 (e)- Producing a schedule 2 drug.

Section 9(a)- Possessing a schedule 1 drug in excess of schedule 4.

Section 9(b)(i)&(ii)- Possessing a schedule 1 drug in excess of schedule 3.

Section 9(c)- Possessing a schedule 2 drug in excess of schedule 3.

I also propose that the following miscellaneous amendments to the CPCA will be included in the Bill:

removal of the requirement on the State contained in section 28(4) of the CPCA to prove the property belonging to a person who has engaged in external serious crime related activity be 'derived' from that serious crime related activity i.e. external serious crime related activity will be treated in the same way as serious crime related activity that takes place in Queensland;

remove the word 'an' before the words 'illegal activity' in sections 83(2) and (3) to clarify that the State is not required to prove a link between the proceeds and a specific illegal activity when obtaining a proceeds assessment order;

an explicit provision allowing the Attorney-General to distribute forfeited funds in accordance with an equitable sharing agreement;

reform of Chapter 8, Part 2, Division 3 (Notices to financial institutions) of the CPCA to:

o widen the scope of information that may be obtained pursuant to a notice to include information that confirms the existence of an account in a certain name or names, the account number and the current account balance;

o provide greater flexibility as to the time in which the information must be provided to investigators pursuant to these provisions including the ability for investigators to request immediate production in urgent circumstances where there is an imminent risk of funds being dissipated;

o provide safeguards including a requirement that reasons for obtaining notices be formally recorded by investigators and specifying a clearer form of notice that must be provided to the financial institution; and


--1

o significantly increasing the maximum penalty for non-compliance with notices to financial institutions in Chapter 8, Part 2, Division 3 of the CPCA from 100 penalty units to 2500 penalty units;

removal of the requirement in section 251 of the CPCA that the Attorney-General consent before proceedings are brought against a person pursuant to a charge of money laundering (section 250 of the CPCA);

clarifying amendments providing that consent orders can be made pursuant to section 256A of the CPCA with respect to any proceedings under chapter 2 and 3 including those proceeding which involve orders of a pecuniary nature that do not attach to specific 'property'; and

amending the definition of 'confiscation related evidence' in the Police Powers and Responsibilities Act 2000, to enable investigators to obtain search warrants and production notices with respect to proceedings under Chapter 4 (Special Forfeiture) of the Criminal Proceeds Confiscation Act 2002.

I would be happy to receive any initial feedback you may have on the possible amendments discussed above. If you wish to provide initial feedback, please send it marked to the attention of Ms Louise Shephard, Director, Strategic Policy, Department of Justice and Attorney-General at [email protected] or by facsimile on 07 3239 3046.

If you wish me to take your initial feedback into account during the drafting period you will need to provide the feedback no later than 12 October 2012. If you would like your feedback to be treated confidentially please make that clear in your correspondence, otherwise you should be aware that the Government rnay disclose the nature of your feedback if we choose to act on any element of it when drafting the legislation.

Yours sincerely

JARROD BLEIJIE MP Attorney-General and Minister for Justice


~~~ ~!! 't,:,.._;_..___; QUEENSLAND GOVERNiv1E~T



His Honour Judge Brendan Butler AM SC Chief Magistrate Magistrates Court of Queensland GPO Box 1649 BRISBANE OLD 4001

Confidential Correspondence

DearJtf'ge

Level18 State Law Building 50 Ann Street Brisbane 4000 GPO Box 149 Brisbane Queensland 4001 Australia Telephone +617 3247 9068 Facsimile+61 7 32214352 Email [email protected]

This Government has committed to introduce unexplained wealth orders and drug trafficking declarations into the criminal proceeds confiscations laws of Queensland.

I intend to introduce a Bill into the Legislative Assembly honouring these election commitments before the end of the year.

Ideally I would like to be in a position to provide you with a draft Bill before its introduction so that I can receive your feedback. While this is still my preferred course of action, there is a possibility that time will not permit this to occur.

Therefore, as a trusted and respected justice stakeholder, I would like to take this opportunity to foreshadow the nature of the amendments the Government is considering in order to fulfil our election commitments. I am also considering a number of other technical amendments to the criminal proceeds regime in Queensland that will assist in its general operation.

I ask that you treat this information confidentially.




RTI140215 : File 3: Page 383














the PSA will provide that upon the sentencing of an offender for any of the prescribed serious drug offences the sentencing Court must issue a 'Prescribed Serious Drug


Offender Certificate' (PSDOC) if it is satisfied that the offender has been convicted of a prescribed serious drug offence or offences;





2. assets retained for the benefit of the offender's dependents: - applications may be made by innocent dependants with respect to: i} testamentary gifts; and ii) principle places of residence purchased at least six years before the charge date for the relevant prescribed offence.




- Section 5(b)- Trafficking in a schedule 2 drug.

• Category B - Serious Drug Offences

Section 6(1 )(a)(2)- Supplying a schedule 1 drug- aggravated supply- in an amount of or over that listed in schedules 3 or 4.

- Section 6(1 )(b)- Supplying a schedule 1 drug in an amount of or above that listed in schedules 3 or 4.


Section 6(1)(d)- Supplying a schedule 2 drug- in an amount of or over that listed in schedules 3 or 4.

- Section 7(1) & (2)- Receiving or possessing property obtained from trafficking or supplying.

RTI140215 : File 3: Page 385

Section 8(a)- Producing a schedule 1 drug in excess of schedule 4.

- Section 8(b )(i)&(ii) - Producing a schedule 1 drug in excess of schedule 3.

- Section 8(c)- Producing a schedule 1 drug.

Section 8(d)- Producing a schedule 2 drug in excess of schedule 3.

- Section 108)- Possession of prohibited combination of items.

• Category C - Serious Drug Offences onlv where a commercial purpose has been accepted by the sentencing Court

- Section 8 (e)- Producing a schedule 2 drug.

- Section 9(a)- Possessing a schedule 1 drug in excess of schedule 4.

- Section 9(b )(i)&(ii) - Possessing a schedule 1 drug in excess of schedule 3.

- Section 9(c)- Possessing a schedule 2 drug in excess of schedule 3.















If you wish me to take your initial feedback into account during the drafting period you will need to provide the feedback no later than 12 October 2012. If you would like your feedback to be treated confidentially please make that clear in your correspondence, otherwise you should be aware that the Government may disclose the nature of your feedback if we choose to act on any element of it when drafting the legislation .

........,, .... bo BLEIJIE MP orney-General and Minister for Justice

RTI140215 : File 3: Page 387

., The Hon Jarrod Bleijie MP Attorney-General and Minister for Justice

QUEENSLAND GOVERNMENT

ln reply please quote: 2001988

Her Honour Chief Judge P M Wolfe Chief Judge The District Court of Queensland PO Box 15167 CITY EAST QLD 4002

Confidential Correspondence

Dear Chief Judge

Level18 State Law Building 50 Ann Street Brisbane 4000 GPO Box 149 Brisbane Queensland 4001 Australia Telephone +61 7 3247 9068 Facsimile +61 7 3221 4352 Email [email protected]






























2. assets retained for the benefit of the offender's dependents: - applications may be made by innocent dependants with respect to: i) testamentary gifts; and ii) principle places of residence purchased at least six years before the charge date for the relevant prescribed offence.




- Section 5(b)- Trafficking in a schedule 2 drug.

• Category B -Serious Drug Offences





Section 7(1) & (2)- Receiving or possessing property obtained from trafficking or supplying.

RTI140215 : File 3: Page 390

- Section 8(a)- Producing a schedule 1 drug in excess of schedule 4.

Section 8(b)(i)&(ii)- Producing a schedule 1 drug in excess of schedule 3.

Section 8(c)- Producing a schedule 1 drug.

Section 8(d)- Producing a schedule 2 drug in excess of schedule 3.

Section 108)- Possession of prohibited combination of items.

• Category C - Serious Drug Offences only where a commercial purpose has been accepted by the sentencing Court



- Section 9(b)(i)&(ii)- Possessing a schedule 1 drug in excess of schedule 3.

- Section 9(c)- Possessing a schedule 2 drug in excess of schedule 3.


removal of the requirement on the State contained in section 28(4) of the CPCA to prove the property belonging to a person who has engaged in external serious crirne related activity be 'derived' from that serious crime related activity i.e. external serious crime related activity will be treated in the same way as serious crime related activity that takes place in Queensland;













If you wish me to take your initial feedback into account during the drafting period you will need to provide the feedback no later than 12 October 2012. If you would like your feedback to be treated confidentially please make that clear in your correspondence, otherwise you should be aware that the Government may disclose the nature of your feedback if we choose to act on any element of it when drafting the legislation.

Yours sincerely

.-~5 ~-

~-~ ... ---/' ____.-- __ __::::, /: ,...~ ~---------

~~~ ~lJ2l'Hey-General and Minister for Justice



QUEENSLAND GOV!:RN,\IF.,\T


The Honourable Justice P de Jersey AC Chief Justice The Supreme Court of Queensland PO Box 15167 CITY EAST QLD 4002

Dear Chief J/stice n ntial Corres ondence

Level18 State Law Building 50 Ann Street Brisbane 4000 GPO Box 149 Brisbane Queensland 4001 Australia Telephone +61 7 3247 9068 Facsimile +61 7 3221 4352 Email [email protected]
























RTI140215 : File 3: Page 394






2. assets retained for the benefit of the offender's dependents: - applications may be made by innocent dependants with respect to: i) testamentary gifts; and ii) principle places of residence purchased at least six years before the charge date for the relevant prescribed offence.



- Section S(a)- Trafficking in a schedule 1 drug.

- Section S(b)- Trafficking in a schedule 2 drug.

• Category 8 - Serious Drug Offences





Section 7(1) & (2)- Receiving or possessing property obtained from trafficking or supplying.

RTI140215 : File 3: Page 395

Section S(a)- Producing a schedule 1 drug in excess of schedule 4.

Section S(b )(i)&(ii) - Producing a schedule 1 drug in excess of schedule 3.

Section S(c)- Producing a schedule 1 drug.

- Section S(d)- Producing a schedule 2 drug in excess of schedule 3.

- Section 1 08) - Possession of prohibited combination of items.

• Category C -Serious Drug Offences only where a commercial purpose has been accepted by the sentencing Court



Section 9(b)(i)&(ii)- Possessing a schedule 1 drug in excess of schedule 3.

Section 9(c)- Possessing a schedule 2 drug in excess of schedule 3.











removal of the requirement in section 251 of the CPCA that the Attorney-General consent before proceedings are broughtagainst a person pursuant to a charge of money laundering (section 250 of the CPCA);


amending the definition of 'confiscation related evidence' in the Police Powers and Responsibilities Act 2000, to enable investigators to obtain search warrants and production notices 111(ith respect to proceedings under Chapter 4 (Special Forfeiture) of the Crimin?/ Proceeds Confiscation Act 2002.


If you wish me to take your initial feedback into account during the drafting period you will need to provide the feedback no later than 12 October 2012. If you would like your feedback to be treated confidentially please make that clear in your correspondence, otherwise you should be aware that the Government may disclose the nature of your feedback if we choose to act on any element of it when drafting the legislation.

RTI140215 : File 3: Page 397

Documents

Level18 State law Building so Ann Street Brisbane 4000 GPO Box … · 2014. 4. 1. · Offender Certificate' (PSDOC) if it is satisfied that the offender has been convicted of a prescribed