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Proceeds of Crime (Amendment) Act 2017 (No. 23 of 2017)

REPUBLIC OF VANUATU

PROCEEDS OF CRIME (AMENDMENT)
ACT NO. 23 OF 2017

Arrangement of Sections

REPUBLIC OF VANUATU

Assent: 02/01/2018
Commencement: 05/01/2018

PROCEEDS OF CRIME (AMENDMENT)
ACT NO. 23 OF 2017

An Act to amend the Proceeds of Crime Act [CAP 284].

Be it enacted by the President and Parliament as follows-

1. Amendment

The Proceeds of Crime Act [CAP 284] is amended as set out in the Schedule.

2. Commencement

This Act commences on the day on which it is published in the Gazette.

SCHEDULE

AMENDMENTS OF PROCEEDS OF CRIME ACT [CAP 284]

1. Section 2

Insert in their correct alphabetical positions:

““Confiscated Assets Fund” means the Confiscated Assets Fund established under section 82N;

“Director General of Finance” means the Director General of the Ministry of Public Finance and Economic Management;

“Director General of Justice” means the Director General of the Ministry of Justice and Community Services;

“management costs” includes but is not limited to any costs in relation to the storage, maintenance, insuring, transferring or disposing of property;

“Minister of Finance” means the Minister of Finance and Economic Management;

“Minister of Justice” means the Minister of Justice and Community Services;

“Public Finance and Economic Management Act” means the Public Finance and Economic Management Act [CAP 244];

“registered foreign forfeiture order” means a foreign forfeiture order registered in the Court under section 41 of the Mutual Assistance Act;

“registered foreign pecuniary penalty order” means a foreign pecuniary penalty order registered in the Court under section 41 of the Mutual Assistance Act;

“registered foreign restraining order” means a foreign restraining order registered in the Court under section 41 of the Mutual Assistance Act;

“trust account” means the trust account established by section 82K;”

1A Section 2 (Definition of “Administrator”)

Delete “84”, substitute “82U”

2. Section 23 (Heading)

After “absconded”, insert “or died”

3. Subparagraph 23 (1)(b)(iii)

After “absconded”, insert “or died”

4. Subparagraph 52(2)(b)(i)

After “custody”, insert “and control”

5. Subsection 52(6)

Repeal the subsection, substitute

“(6) If the Court gives the Administrator a direction under paragraph (2)(b), in relation to property or a part of it, the Administrator must deal with the property or a part of it in accordance with this Division and Part 5C.”

6. After section 52

Insert

“52A. Preservation of the value of property

(1) This section applies if the Court gives the Administrator a direction under paragraph 52(2)(b) in relation to property.

(2) For the purposes of this section, “property” means the whole property or part of it.

(3) The Administrator may do anything that is reasonably necessary to preserve the value of the property.

(4) Without limiting subsection (3), the Administrator:

(a) may do anything in relation to the property that its owner could do; and

(b) may do so to the exclusion of the owner.

(5) The regulations may prescribe the actions available to the Administrator to preserve the value of the property.

52B. Disposal of property

(1) This section applies if the Court gives the Administrator a direction under paragraph 52(2)(b) in relation to property.

(2) For the purposes of this section, “property” means the whole property or part of it.

(3) Subject to subsections (4) and (5), if property:

(a) is depreciating in value; or

(b) has a high management cost; or

(c) is both depreciating in value and has a high management cost,

the Administrator may dispose of the property while it is subject to a direction under paragraph 52(2)(b).

(4) The Administrator must obtain the written consent of the Public Prosecutor before taking any action to dispose of property.

(5) The Administrator must comply with any provisions on the disposal of property prescribed by the regulations.

(6) Without limiting subsection (5), the regulations may prescribe:

(a) the type of property which may be disposed; and

(b) the circumstances in which property may be disposed; and

(c) any processes for the disposal of property, including for:

(i) the Administrator to provide written notice of the proposed disposal of the property; and

(ii) the owner of the property or other interested person to object to the proposed disposal of the property; and

(iii) the Public Prosecutor to apply to the Court on behalf of the Administrator for an order for the disposal of property.

(7) All monies obtained from the disposal of property under this section:

(a) must be paid into the trust account; and

(b) are taken to be covered by the restraining order that covered the property.”

52C. Destruction of property

(1) This section applies if the Court gives the Administrator a direction under paragraph 52(2)(b) in relation to property.

(2) For the purposes of this section, “property” means the whole property or a part of it.

(3) Subject to subsections (4) and (5), the Administrator may destroy property while it is subject to a direction under paragraph 52(2)(b) if:

(a) it is in the public interest to do so; or

(b) it is required for the health or safety of the public.

(4) The Administrator must obtain the written consent of the Public Prosecutor before taking any action to destroy property.

(5) The Administrator must comply with any provisions on the destruction of property prescribed by the regulations.

(6) Without limiting subsection (5), the regulations may prescribe:

(a) the type of property which may be destroyed; and

(b) the circumstances in which property may be destroyed; and

(c) any processes for the destruction of property, including for:

(i) the Administrator to provide written notice of the proposed destruction of the property; and

(ii) the owner of the property or other interested person to object to the proposed destruction of the property; and

(iii) the Public Prosecutor to apply to the Court on behalf of the Administrator for an order for the destruction of the property.”

7. Subsection 73(3)

Repeal the subsection, substitute

“(3) If the Court makes an order under subsection (1) in relation to property or a part of it, the Administrator must deal with the property or the part of it in accordance with this Division and Part 5C.”

8. After section 73

Insert

“73A Preservation of the value of property

(1) This section applies if the Court makes an order under subsection 73(1) in relation to property.

(2) For the purposes of this section, “property” means the whole property or a part of it.

(3) The Administrator may do anything that is reasonably necessary to preserve the value of the property.

(4) Without limiting subsection (3), the Administrator:

(a) may do anything in relation to the property that its owner could do; and

(b) may do so to the exclusion of the owner.

(5) The regulations may prescribe the actions available to the Administrator to preserve the value of the property.

73B. Disposal of property

(1) This section applies if the Court makes an order under subsection 73(1) in relation to property.

(2) For the purposes of this section, “property” means the whole property or a part of it.

(3) Subject to subsections (4), (5) and (7), if property:

(a) is depreciating in value; or

(b) has a high management cost; or

(c) is both depreciating in value and has a high management cost,

the Administrator may dispose of the property while it is subject to an order under subsection 73(1).

(4) The Administrator must obtain the written consent of the Public Prosecutor before taking any action to dispose of property.

(5) The Administrator must comply with any provisions on the disposal of property prescribed by the regulations.

(6) Without limiting subsection (5), the regulations may prescribe:

(a) the type of property which may be disposed; and

(b) the circumstances in which property may be disposed; and

(c) any processes for the disposal of property, including for:

(i) the Administrator to provide written notice of the proposed disposal of the property; and

(ii) the owner of the property or other interested person to object to the proposed disposal; and

(iii) the Public Prosecutor to apply to the Court on behalf of the Administrator for an order for the disposal of the property.

(7) The Administrator must consult with the foreign country which made the request to enforce a foreign restraining order under subsection 40(3) of the Mutual Assistance Act before property is disposed of under this section.

(8) All monies obtained from the disposal of property under this section:

(a) must be pain into the trust account; and

(b) are taken to be covered by the restraining order that covered the property.

73C. Destruction of property

(1) This section applies if the Court makes an order under subsection 73(1) in relation to property.

(2) For the purposes of this section, “property” means the whole property or a part of it.

(3) Subject to subsections (4), (5) and (7), the Administrator may destroy property while it is subject to an order of the Court under subsection 73(1) if:

(a) it is in the public interest to do so; or

(b) it is required for the health or safety of the public.

(4) The Administrator must obtain the written consent of the Public Prosecutor before taking any action to destroy property.

(5) The Administrator must comply with any provisions on the destruction of property prescribed by the regulations.

(6) Without limiting subsection (5), the regulations may prescribe:

(a) the type of which property which may be destroyed; and

(b) the circumstances in which property may be destroyed; and

(c) any processes for the destruction of property, including for:

(i) the Administrator to provide written notice of the proposed destruction of the property; and

(ii) the owner of the property or other interested person to object to the proposed destruction; and

(iii) the Public Prosecutor to apply to the Court on behalf of the Administrator for an order for the disposal of the property.

(7) The Administrator must consult with the foreign country which made the request to enforce a foreign restraining order under subsection 40(3) of the Mutual Assistance Act before property is destroyed under this section.”

9. At the end of section 82A

Add

“(8) For the purposes of this section, “authorised officer” includes the Public Prosecutor.”

10. Section 82D

Delete “79A”, substitute “82A”

11. At the end of section 82H

Add

“(5) For the purposes of this section, authorised officer includes the Public Prosecutor.”

12. After Part 5B

Insert

“PART 5C ASSET MANAGEMENT

Division 1 Trust account

82K. Establishment of trust account

A trust account is established in accordance with section 47 of the Public Finance and Economic Management Act.

82L. Purpose of the trust account

(1) The purpose of the trust account is to hold money that is:

(a) subject to a restraining order under this Act; or

(b) subject to a registered foreign restraining order; or

(c) under the custody and control of the Administrator as a result of any other action taken under this Act,

and is not yet transferable to the Confiscated Assets Fund.

(2) Subsection (1) does not apply to money or income reasonably necessary to operate a business on a sound commercial basis if the business:

(a) is subject to a restraining order; or

(b) is subject to a registered foreign restraining order; or

(c) is otherwise under the custody and control of the Administrator.

82M. Money payable into and out of the trust account

(1) The Administrator must as soon as practicable pay into the trust account:

(a) money in the custody and control of the Administrator because the Court gives a direction under paragraph 52(2)(b) or makes an order under subsection 73(1) in relation to property or a part of it; and

(b) money in the custody and control of the Administrator as a result of any other action taken under this Act; and

(c) amounts realised from the disposal of property or a part of it in section 52B or 73B; and

(d) any income generated from property in the custody and control of the Administrator because of a direction or order referred to under paragraph (a).

(2) The Administrator must, as soon as practicable, request the Director General of Finance to make any payments out of the trust account as are necessary to comply with a Court order, direction, declaration or discharge under this Act.

(3) The Director General of Finance must make the payment requested under subsection (2) if satisfied that it is necessary to comply with a Court order, direction, declaration or discharge.

(4) A transfer of money into the trust account does not operate as a transfer of ownership or title or give rise to any lien.

Division 2 Confiscated Assets Fund

82N. Establishment of Confiscated Assets Fund

(1) The Confiscated Assets Fund is established in accordance with section 43 of the Public Finance and Economic Management Act.

(2) The Director General of Finance and the Director General of Justice must operate the Confiscated Assets Fund jointly in accordance with the Public Finance and Economic Management Act.

82O. Standing appropriation

Public Money in the Confiscated Assets Fund is appropriated accordingly for the purposes of this Division.

82P Purposes of the Confiscated Assets Fund

The Confiscated Assets Fund may be used for any or all of the following purposes:

(a) the Administrator’s costs and charges;

(b) the recovery of property management costs;

(c) restitution where a forfeiture order has been discharged;

(d) payments ordered by the Court to persons who have an interest in property that has been:

(i) subject to a forfeiture order; or

(ii) subject to a registered foreign forfeiture order; or

(iii) used to satisfy a pecuniary penalty order; or

(iv) used to satisfy a registered foreign pecuniary penalty order;

(e) the sharing of property with foreign countries;

(f) any other purposes approved by the Minister of Finance and the Minister of Justice in accordance with this Act.

82Q. Money payable into the Confiscated Assets Fund

The following must be paid into the Confiscated Assets Fund:

(a) all monies derived from the fulfilment of:

(i) a forfeiture order; or

(ii) a registered foreign forfeiture order; or

(iii) a pecuniary penalty order; or

(iv) a registered foreign pecuniary penalty order;

(b) money paid into the Confiscated Assets Fund from time to time by appropriation;

(c) any voluntary payments made for the purposes of the Confiscated Assets Fund described under section 82P;

(d) any income derived from the Confiscated Assets Fund;

(e) money paid to Vanuatu by a foreign country under an agreement or arrangement for providing international assistance in criminal matters;

(f) money, other than money referred to in paragraph (e), paid to Vanuatu by a foreign country in connection with assistance provided by Vanuatu, to the recovery by that country of the proceeds of unlawful activity, or the investigation or prosecution of unlawful activity.

82R. Use of the Confiscated Assets Fund for the purposes in section 82P

(1) If any payments out of the Confiscated Assets Fund for any or all of the purposes described under paragraph 82P(a), (b), (c) or (d) are to be made, the Director General of Finance and the Director General of Justice must jointly authorise those payments.

(2) The Director General of Finance and the Director General of Justice, in authorising payments under subsection (1), must comply with any requirements prescribed by the regulations.

(3) If any payments out of the Confiscated Assets Fund for any or all of the purposes described under paragraph 82P(e) or (f) are to be made, the Minister of Finance and the Minister of Justice must jointly approve those payments.

(4) The Minister of Finance and the Minister of Justice, in approving payments under subsection (3), must comply with any requirements prescribed by the regulations.

Division 3 Record-keeping, reporting and auditing

82S. Record-keeping and reporting

(1) The Administrator must maintain detailed records of all property forfeited, seized and restrained.

(2) If an Administrator takes control of property pursuant to a Court order, the Administrator must prepare and file with the Court a report containing information about the property, including the location where it is held.

82T. Auditing and annual reporting obligations

The Confiscated Assets Fund is subject to the auditing and reporting obligations of the Public Finance and Economic Management Act.

Division 4 Appointment of Administrator

82U. Appointment of Administrator

(1) The Public Prosecutor may by instrument appoint a person under such terms and conditions as the Public Prosecutor sees fit to administer property that is:

(a) forfeited under this Act; or

(b) forfeited pursuant to a registered foreign forfeiture order; or

(c) subject to a restraining order; or

(d) subject to a registered foreign restraining order; or

(e) subject to the custody or control of the Administrator as a result of any other action taken under this Act; or

(f) subject to a registered foreign pecuniary penalty order.

(2) The Administrator must administer the property in accordance with the asset management provisions prescribed by the regulations.”

13. Section 84

Repeal the section.