Commonwealth Numbered Regulations - Explanatory Statements

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PROCEEDS OF CRIME AMENDMENT REGULATIONS 2002 (NO. 1) 2002 NO. 334

Statutory Rules 2002 No. 334

Issued by the authority of the Minister for Justice and Customs

Proceeds of Crime Act 1987

Proceeds of Crime Amendment Regulations 2002 (No. 1)

Section 104 of the Proceeds of Crime Act 1987 ('Proceeds Act') provides that the GovernorGeneral may make regulations for the purposes of the Act.

The Proceeds Act establishes a conviction based confiscation regime. The Official Trustee in Bankruptcy ('Official Trustee') is responsible under the Act for looking after, and where necessary selling off, restrained and forfeited property.

Section 55 of the Proceeds Act provides that the Regulations may make provision for the payment of the Official Trustee's remuneration in respect of the Official Trustee's powers, duties and functions under that Act. Existing Regulation 8 of the Proceeds of Crime Regulations 1987 provides for the Official Trustee's remuneration by reference to provisions in Regulation 16.07 of the Bankruptcy Regulations 1996 ('Bankruptcy Regulations').

Regulation 16.07 of the Bankruptcy Regulations was amended by item 22 of the Bankruptcy Amendment Regulations 2002 (which commenced on 6 November 2002), and the provisions referred to in Regulation 8 of the Proceeds of Crime Regulations have been repealed. Equivalent provisions are now located in Regulation 16.07C(3) of the Bankruptcy Regulations.

The effect of the amendment to the Bankruptcy Regulations is that Regulation 8 of the Proceeds of Crime Regulations no longer prescribes the remuneration of the Official Trustee.

The proposed Regulations would remedy this unintended effect by replacing Regulation 8. They would also provide for a goods and services tax ('GST') component to be included along with the remuneration.

New Regulation 8 would provide for the Official Trustee's remuneration in respect of the performance or exercise of functions, duties or powers under the Proceeds Act by reference to the hourly rates provided in Regulation 16.07C(3) of the Bankruptcy Regulations. The provisions in Regulation 16.07C correspond to those in repealed Regulation 16.07.

Proposed Regulation 8A provides for a GST component to be added to the amount of the Official Trustee's fees worked out under proposed Regulation 8. The proposed Regulation prescribes that, in addition to the remuneration mentioned in proposed Regulation 8, a GST component of 8.4% is payable to the Official Trustee. The GST component is payable because the goods and services tax attaches to the services performed by the Official Trustee under the Proceeds Act.

There is a GST component of 8.4% payable under the Bankruptcy Regulations 1996 for the Official Trustee's fees. As the services performed by the Official Trustee under the Proceeds Act will be similar to those performed in relation to bankruptcy matters, the Official Trustee has advised that proposed Regulation 8A should prescribe the same GST component.