Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Criminal Assets Recovery Act 1990 (the
Criminal Assets Act) and the Confiscation of Proceeds of Crime Act 1989 (the
Proceeds of Crime Act) as follows:

(a) to make changes to ex parte proceedings for restraining orders under both
Acts, as a consequence of the invalidity of section 10 of the Criminal Assets
Act, as found by the High Court in International Finance Trust Company
Limited v New South Wales Crime Commission [2009] HCA 49 (12 November
2009) and, for that purpose, to confer a discretion under the Criminal Assets
Act on the Supreme Court to notify an affected person of ex parte proceedings,
to confer on a notified person the right to be heard in proceedings and to
provide for and confirm in both Acts the right of the Supreme Court to set
aside restraining orders,

(b) to enable the New South Wales Crime Commission (the Commission) to apply
for, and to be granted, an assets forfeiture order under the Criminal Assets Act
without first applying for or obtaining a restraining order and to provide for
additional ancillary orders consequential on this change,

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(c) to continue, by force of the Criminal Assets Act, the effect of restraining
orders that are not set aside or discharged by a court before the proposed Act
commences,

(d) to exclude the State and employees of the State, or other persons acting for the
State, from liability and claims for compensation and relief in relation to
invalid restraining orders or assets forfeiture orders founded on invalid
restraining orders under the Criminal Assets Act,

(e) to preserve current assets forfeiture orders under the Criminal Assets Act that
were founded on invalid restraining orders,

(f) to make other consequential amendments and to enact other savings and
transitional provisions.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on the date of assent
to the proposed Act.

Schedule 1 Amendment of Criminal Assets
Recovery Act 1990 No 23
Changes to restraining order procedures
The Criminal Assets Act currently requires applications for restraining orders, that
is, orders restraining persons from disposing or otherwise dealing with or attempting
to dispose or otherwise deal with interests in property, to be determined in ex parte
proceedings by the Supreme Court, on affidavit evidence provided by the
Commission.

Schedule 1 [3] repeals sections 10–10B of the Criminal Assets Act, which relate to
proceedings for restraining orders, and re-enacts those provisions as
sections 10–10D, with the following modifications and additions:

(a) the Supreme Court is given a discretion (in proposed section 10A (4)) to
require the Commission to give notice of an application for a restraining order
to a person who the Court has reason to believe has an interest in the property
or part of the property proposed to be subject to the order. Any person who is
so notified is entitled to appear and adduce evidence at the hearing of the
application. Such evidence may be considered by the Court in determining an
application,

(b) a person affected by a restraining order is given the right to apply to the
Supreme Court for an order setting aside a restraining order. The Court may
set aside the order on the ground that the Commission has failed to establish
that there are reasonable grounds for the suspicion on which the order was
based or if the applicant establishes that the order was obtained illegally or not

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in good faith. An application is generally required to be made within 28 days
of notice of the restraining order,

(c) the procedures for telephone applications for restraining orders have been
integrated with the other provisions relating to applications for restraining
orders,

(d) the provisions are re-ordered.

Schedule 1 [1], [7], [8], [10] and [11] make consequential amendments.

Schedule 1 [2] updates a definition of rules of court, so that the expression will apply
to rules of the Supreme Court under the Uniform Civil Procedure Rules 2005.

Changes to procedures for assets forfeiture orders
Currently, an assets forfeiture order, that is, an order forfeiting to, and vesting in, the
Crown, assets in property, can only be made if those assets are subject to a restraining
order.

Schedule 1 [5] enables the Supreme Court to make an assets forfeiture order without
the requirement for a restraining order to be in force in respect of the relevant
interests in property. The interests in property that can be the subject of an assets
forfeiture order are the same kinds of interests that can be the subject of a restraining
order and the Commission may still apply for a restraining order before or at the same
time as it applies for an assets forfeiture order. Schedule 1 [4] makes a consequential
amendment.

Schedule 1 [9] inserts proposed Division 2B of Part 3 (proposed section 31D), as a
consequence of the amendment made by Schedule 1 [5]. The proposed section
enables the Commission to seek an order from the Supreme Court for the
examination on oath of a person affected by a confiscation order (that is, an assets
forfeiture order or a proceeds assessment order). The proposed section also enables
the Commission to obtain an order directing a person to provide a statement about
property or dealings with property. The proposed section enables the Commission to
obtain orders now available under section 12 of the Criminal Assets Act for the
purposes of its confiscation order proceedings (previously the ability to obtain such
orders was available for assets forfeiture orders because of the linkage between
applications for restraining orders and assets forfeiture proceedings). Schedule 1 [6]
and [12] make consequential amendments.

Savings and transitional provisions relating to invalid restraining
orders, current assets forfeiture orders and other matters
Schedule 1 [13] enables regulations containing provisions of a savings and
transitional nature to be made as a consequence of the enactment of the proposed Act.

Schedule 1 [14] inserts proposed Part 4 (proposed clauses 15–24) of Schedule 1.

Proposed clause 15 defines words and expressions used in the Part.

Proposed clause 16 gives effect, by force of the proposed clause, to the provisions of
a restraining order (a former restraining order), and any ancillary orders, purported
to be made before 12 November 2009 (the day the High Court declared current

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section 10 to be invalid) that had not ceased to be in force before that day (a current
former restraining order). The proposed clause applies the Criminal Assets Act, and
other laws, to these provisions (restraining provisions) as if the provisions were
restraining orders and ancillary orders. The proposed clause does not give effect to
any order specifically set aside by the High Court decision or to anything in respect
of an order set aside after 12 November 2009 for any period after the order was set
aside.

Proposed clause 17 enables restraining provisions to be set aside under proposed
section 10C but requires any application for such an order to be made within 28 days
of the date of assent to the proposed Act. It also prohibits restraining provisions from
being the subject of an application for a review by the Supreme Court on the ground
that the affidavit on which the original restraining order was based contained
inadmissible evidence, on the ground that the judge who determined the application
for the original order failed to supply reasons for the determination or because of the
invalidity of the previous section 10. The proposed clause also enables the Supreme
Court, at any time on the application of the Commission, to set aside restraining
provisions.

Proposed clause 18 excludes the State (including the Commission, the NSW Trustee
and Guardian and any officer, employee or agent of the Crown) from liability for
various matters arising directly or indirectly from the enactment of the proposed Act
and relating to former restraining orders, existing interstate restraining orders and
assets forfeiture orders and orders ancillary to those orders made before the
commencement of the proposed Act (existing assets forfeiture orders). It also
excludes compensation from being payable by or on behalf of the State for any such
matters. Proceedings for compensation or other relief for the purpose of restraining
any action in relation to an interest in property in accordance with a former
restraining order or assets forfeiture order are also prohibited.

Proposed clause 19 provides that the validity of an existing assets forfeiture order is
not affected by the fact that there was no valid restraining order in force when the
application for the order, or the order, was made and prohibits any challenge to its
validity on that ground. Acts or omissions with respect to existing assets forfeiture
orders are validated if they would be valid after the commencement of the proposed
Act.

Proposed clause 20 continues current applications for assets forfeiture orders and
removes any requirement that there be a restraining order before any such application
can be granted.

Proposed clause 21 continues existing interstate restraining orders in force as if they
were restraining orders made under proposed section 10A and validates acts or
omissions with respect to those orders if they would be valid after the
commencement of the proposed Act.

Proposed clause 22 prevents a person from being liable for an offence, because of the
operation of proposed clause 16, if the act or omission constituting the offence did
not constitute an offence when it occurred. This clause will prevent a prosecution for

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offences such as contravening a restraining order if the restraining order was invalid
when the contravention occurred.

Proposed clause 23 removes the requirement for the Commission to cancel
recordings relating to property, or withdraw any relevant caveat, because of the
invalidity of current former restraining orders.

Proposed clause 24 enables savings and transitional regulations to be made that are
inconsistent with the provisions of the proposed Part.

Schedule 2 Amendment of Confiscation of Proceeds
of Crime Act 1989 No 90
Changes to restraining order procedures
Schedule 2 [1] makes it clear that the Supreme Court may consider any evidence
adduced from an affected party when determining an application for a restraining
order. Under section 44 (1) of the Proceeds of Crime Act, the Supreme Court has a
discretion, despite the ex parte proceedings, to notify an affected party who may then
attend the proceedings and adduce evidence.

Schedule 2 [2] inserts proposed section 44A. The proposed section confirms that the
ex parte procedures in the Proceeds of Crime Act for restraining orders do not
prevent the Supreme Court from exercising powers, derived from rules of court (that
is, the Uniform Civil Procedure Rules 2005) and other laws (such as its inherent
power to set aside ex parte orders), to set aside or vary restraining orders or ancillary
orders.

Savings and transitional provisions
Schedule 2 [3] enables regulations containing provisions of a savings and
transitional nature to be made as a consequence of the enactment of the proposed Act.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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