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Disclosure of POCA Obtained Information

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Disclosure of POCA Obtained Information[1]

As POCA information is contained in a coercive manner, there are constraints around when it can be disclosed.

Section 266A POCA applies to information obtained from:

  • Sworn statements,[2] including sworn statements made by the suspect in relation to a restraining order,[3] a sworn statement made by an owner or previous owner of property,[4] or another person providing a sworn statement;[5]
  • POCA Search Warrants;[6]
  • Notices to financial institutions;[7]
  • Monitoring Orders;[8]
  • Production Orders;[9]
  • Examinations;[10]

As the coercive information gathering powers contained within the Proceeds of Crime Act 2002 (Cth) are quite powerful, there is limitations on how the information can be disseminated. There is a table contained in s 266A POCA that controls to which Authority disclosure may be made and for what Purpose the disclosure may be made. A summary of this table is below:

Authority to which disclosure may be made Purpose for which disclosure may be made
AFP or CDPP. Facilitating that authority’s performance of its functions under POCA.
State, Territory, or Commonwealth authority which has the function of investigating or prosecuting offences against a law of the Commonwealth, State or Territory (e.g. police force). Assisting in the prevention, investigation or prosecution of an offence against that law that is punishable on conviction by imprisonment for at least 3 years or for life.
Foreign authority which has the function of investigating or prosecuting offences against a law of that country (e.g. foreign police force). Assisting in the prevention, investigation or prosecution of an offence against that law constituted by conduct that, if it occurred in Australia, would constitute an offence against a law of the Commonwealth, or of a State or Territory, punishable by conviction by imprisonment for at least 3 years or for life.
Authority of a State, or a self-governing Territory, that has a function under a corresponding law of the State or Territory (e.g. State Crime Commission’s and/or State Public Prosecutors (DPP)). Any one or more of the following purposes:

(a)   Engaging in proceedings under that corresponding law.

(b)   Engaging in proceedings for the forfeiture of things under a law of that State or Territory.

(c)   Deciding whether to institute proceedings of a kind referred to in paragraph (a) or (b).

Authority of a foreign country that has one or more of the following functions:

(a)   Investigating or prosecuting offences against a law of the country;

(b)   Identifying, locating, tracing, investigating or confiscating proceeds of instruments of crime under a law of the country.

(e.g. Foreign equivalent of ACIC, State Crime Commission’s, CDPP, DPP).

 

Assisting in identification, location, tracing, investigation or confiscation of proceeds or instruments of crime, if the identification, location, tracing, investigation or confiscation could take place under POCA, or under a corresponding law of a State or a self-governing Territory, if the proceeds or instruments related to an offence against a law of the Commonwealth, State or Territory.
ATO. Protecting public revenue.

 

Information contained in a document produced or made available as the result of a production order, that is subsequently disclosed under s. 266A is not admissible in a criminal proceeding against the person who produced the document, unless it relates to providing false or misleading documents or information (ss 137.1, 137.2 Criminal Code[11]).

An answer or document provided by an examinee, that is subsequently disclosed under s. 266A is not admissible in evidence against that examinee in a civil or criminal proceeding, unless it is for:

  • Criminal proceedings for giving false or misleading information.[12]
  • Proceedings on an application under POCA.[13]
  • Proceedings ancillary to an application under POCA.[14]
  • Proceedings for enforcement of a Forfeiture Order, a Pecuniary Penalty Order, a Literary Proceeds Order, or an Unexplained Wealth Order.[15]
  • Civil proceedings for or in respect of a right or liability the document confers or imposes.[16]

[1] S 266A Proceeds of Crime Act 2002 (Cth).

[2] S 39 Proceeds of Crime Act 2002 (Cth).

[3] S 39(ca) Proceeds of Crime Act 2002 (Cth).

[4] S 39(d) Proceeds of Crime Act 2002 (Cth).

[5] S 39(da) Proceeds of Crime Act 2002 (Cth).

[6] S 225 Proceeds of Crime Act 2002 (Cth).

[7] S 213 Proceeds of Crime Act 2002 (Cth).

[8] S 219 Proceeds of Crime Act 2002 (Cth).

[9] S 202 Proceeds of Crime Act 2002 (Cth).

[10] S 180 Proceeds of Crime Act 2002 (Cth).

[11] Criminal Code Act 1995 (Cth) Schedule 1.

[12] S 266A(4)(a) Proceeds of Crime Act 2002 (Cth).

[13] S 266A(4)(b) Proceeds of Crime Act 2002 (Cth).

[14] S 266A(4)(c) Proceeds of Crime Act 2002 (Cth).

[15] S 266A(4)(d) Proceeds of Crime Act 2002 (Cth).

[16] S 266A(4)(e) Proceeds of Crime Act 2002 (Cth).


* Information contained in this article is of a general nature only and should not be relied upon as concise legal advice.
Please contact us for legal advice tailored to your situation. *


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About Brian Walker

B.Acc., GradDipLegPrac, Juris Dr Barrister & Accountant. Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

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