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DRUG TRAFFICKING (CIVIL PROCEEDINGS) BILL 1990
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
The objects of this Bill are:
(a) to enable the State Drug Crime Commission ("the Commission") to apply
to the Supreme Court for a "restraining order" preventing the disposal of
interests in property of a person suspected of having been engaged in
drug-related activities; and
(b) to provide for the making by the Supreme Court of an "assets forfeiture
order" for the confiscation and disposal of interests in property that are
subject to a restraining order; and
(c) to provide for the making by the Supreme Court of a "proceeds assessment
order" assessing the value of the gross proceeds derived by a person from
drug trafficking or any other drug-related activity and to provide for the
recovery from the person of an amount equal to the value assessed; and
(d) to require the Supreme Court, on the application of the Commission, to
make an assets forfeiture order or a proceeds assessment order, or both, if
satisfied that it is more probable than not that a person has been engaged
in drug trafficking or any other drug-related activity, whether or not the
trafficking or other activity has resulted in the person being charged, tried,
acquitted or convicted; and
(e) to provide for the disposal of the proceeds derived from enforcement of an
assets forfeiture order or a proceeds assessment order; and
(f) to make other provisions to aid achievement of the objects referred to in
paragraphs (a)-( e).
The expression "drug-related activity" is explained in detail in clause 6 of the Bill
but it basically comprises drug trafficking and other acts constituting, or relating to,
serious drug offences.
Drug Trafficking (Civil Proceedings)1990
The expression "drug-derived property" is explained in detail in clause 9 of the Bill.
It is used to describe:
(a) the proceeds of a drug-related activity; and
(b) an interest in property acquired using drug-derived property; and
(c) an interest in property acquired as a result of the disposal of drug-derived
property.
The disposal of drug-derived property does not (except in limited circumstances)
mean that it ceases to be drug-derived property.
The definition results in a "tracing" effect whereby drug-derived property remains
drug-derived property even 'when it is sold, and the proceeds of the sale become
drug-derived property.
Certain powers to order forfeiture of property, or to pay to the State the proceeds
of drug trafficking, are already conferred by the Confiscation of Proceeds of Crime
Act 1989 but the proposed Act would basically differ from the present Act in that:
(a ) a conviction would not be required; and
(b) the jurisdiction to make an order would be confined to the Supreme Court;
and
(c) the balance of probabilities would be sufficient for a finding by the Supreme
Court of engagement in a drug-related activity; and
(d) such a finding could be made whether or not the person against whom it is
sought has been charged or, if the person has been charged, even if the
person has not been tried or has been tried and acquitted or, if convicted,
has had the conviction quashed; and
(e) if such a finding is made, the making of the order applied for would be
mandatory, not discretionary.
The functions necessary for obtaining a restraining order, assets forfeiture order
or proceeds assessment order would be vested in the Commission.
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days
to be appointed by proclamation and for its repeal 6 years later unless either House
of Parliament resolves to the contrary.
Clause 3 states the principal objects of the proposed Act.
Clause 4 contains definitions for the purposes of the proposed Act.
Clause 5 declares that proceedings under the proposed Act for a restraining order,
an assets forfeiture order or a proceeds assessment order are not criminal
proceedings.
Clause 6 provides an extensive explanation of the meaning of the expression
"drug-related activity" as used in the proposed Act.
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Clause 8 explains the meaning of the expression "effective control of interest in
property" as used in the proposed Act.
Clause 9 explains the meaning of the expressions "drug-derived property" and
"illegally acquired property" as used in the proposed Act.
PART 2 - RESTRAINING ORDERS
Clause 10 enables the Commission to apply to the Supreme Court for a
restraining order preventing the disposal of the interests in property of a person
reasonably suspected of having engaged in drug-related activities. A restraining order
may be made in relation to interests in property of any other person if the Court is
satisfied that there are reasonable grounds for suspecting that the interests are
drug-derived property. Provision is made for the Court to order the Public Trustee
to take control of the property.
Clause 11 provides for the giving of notice of the making of a restraining order.
Clause 12 provides for ancillary orders that may be made by the Supreme Court
when making a restraining order or at a later time. These include an order for the
examination on oath of the owner of the interest in property the subject. of the
restraining order.
Clause 13 deals with matters relating to the claiming of privilege in relation to
questions asked during an examination before the Supreme Court or in relation to
the production of a document.
Clause 14 enables the Supreme Court to direct the Public Trustee to sell an
interest in property that is the subject of a restraining order and the subject of an
application for an assets forfeiture order. Such a direction would be given only in a
special case such as rapid deterioration of the property.
Clause 15 requires recording of a restraining order on application to an authority
responsible (whether or not under a law of the State) for registration of title to, an
interest in, or a charge over, property of the kind subject to the restraining order.
Clause 16 penalises a person who disposes of, or otherwise deals with, an interest
in property in contravention of a restraining order. This does not apply to a disposal
or dealing authorised by the proposed Act.
Clause 17 enables the Public Trustee or the Commission to apply to the Supreme
Court for taxation of legal expenses that are to be met from property subject to a
restraining order.
Clause 18 penalises a person who hinders or obstructs the Public Trustee in the
performance of the obligations of the Public Trustee under a restraining order and
exonerates the Public Trustee from certain liabilities that might otherwise arise.
Clause 19 provides for the fees payable to the Public Trustee for exercising
functions under the proposed Act.
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Drug Trafficking (Civil Proceedings) 1990
Clause 20 enables the Supreme Court to make certain orders relating to the
duration of a restraining order if the Court does not make an assets forfeiture order
or a proceeds assessment order.
Clause 21 provides for the acceptance in evidence of a certificate by the Public
Trustee as to the existence and terms of a restraining order under which the Public
Trustee takes control of property.
PART 3 - CONFISCATION
Division 1 - Assets forfeiture orders
Clause 22 enables the Commission to apply to the Supreme Court for an assets
forfeiture order in relation to interests in property that are the subject of a
restraining order. The effect of an assets forfeiture order would be to forfeit to the
Crown interests in property that are subject to the restraining order when the assets
forfeiture order takes effect. The Supreme Court must make an assets forfeiture
order if satisfied, on the balance of probabilities, that the person whose suspected
drug-related activities foamed the basis of the relevant restraining order was involved
in a drug-related activity involving an indictable quantity.
Clause 23 provides for the vesting in the Public Trustee on behalf of the Crown
of the interests in property to which an assets forfeiture order relates on taking effect.
The Public Trustee is to dispose of the interests as directed by the Minister and pay
the proceeds to the Treasurer to be credited to the Confiscated Drug Proceeds
Account ("the Proceeds Account") for which clause 32 provides.
Clause 24 allows the Supreme Court to mitigate the harshness of am assets
forfeiture order to prevent hardship to spouses and dependants of persons who
forfeit property.
Clause 25 provides a procedure for the exclusion of an interest in property from
an assets forfeiture order that has been applied for but not made, or has taken effect.
Clause 26 provides for the exclusion from an assets forfeiture order of a
proportion of the value of an interest to be forfeited if the proportion is not
attributable to a drug-related or illegal activity.
Division 2 - Proceeds assessment orders
Clause 27 enables the Commission to apply to the Supreme Court for a proceeds
assessment order. The effect of a proceeds assessment order would be to require the
person against whom it is made to pay to the Treasurer an amount assessed by the
Court as the value of the benefit derived by the person from drug-related activities.
An unpaid amount would be recoverable as a debt due to the Crown and the amount
paid or recovered would be credited to the Proceeds Account.
Clause 28 requires the Supreme Court to have regard to certain specified matters
when making an assessment referred to in clause 27.
Clause 29 enables the Supreme Court to declare that property under the effective
control of a person against whom a proceeds assessment order has been made is
available to satisfy the debt created by the order.
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Clause 31 provides for the creation in favour of the Crown of a charge to secure
payment of the debt arising under a proceeds assessment order. The charge burdens
the property of the person against whom the proceeds assessment order is made.
Division 3 - Confiscated Drug Proceeds Account
Clause 32 provides for the establishment of, and the payments to be made to and
from, the Proceeds Account.
PART 4 - INFORMATION GATHERING POWERS
Division 1 - Production orders
Clause 33 provides for the Supreme Court to order a person to produce to, or
make available for inspection by, an authorised officer a property-tracking document
in the possession, or under the control, of the person. Bankers' books would not be
required to be produced away from the bank.
Clause 34 specifies the powers of an authorised officer when a property-tracking
document is produced or made available for inspection. These are powers to inspect,
take extracts from, and make copies of, the document and, in the case of an order
to produce, power to retain the document for a reasonable time.
Clause 35 excludes self-incrimination or breach of an obligation as a valid reason
for a person refusing to produce a document, or make it available for inspection, in
accordance with a production order. It also excludes the production or making
available of a document under protest, and any document obtained as a consequence,
from being used in criminal proceedings against the person.
Clause 36 enables the Supreme Court to vary an order to produce a document by
requiring instead that the document be made available for inspection.
Clause 37 penalises a contravention of an order to produce a document or make
it available for inspection.
Division 2 - Search powers (general)
Clause 38 enables a full-time member of the Commission, or a member of the
Police Force, to obtain a search warrant authorising entry on premises to search for
drug-derived property or illegally acquired property of a person suspected of
involvement in drug-related activities or evidence of a drug-related or illegal activity,
or both.
Clause 39 authorises the person executing a search warrant to seize property that
might reasonably be suspected of being drug-derived property or illegally acquired
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Drug Trafficking (Civil Proceedings) 1990
property and evidence that might reasonably be suspected of being evidence of a
drug-related or illegal activity.
Clause 40 imposes duties in relation to the preservation of property seized under
a search warrant.
Clause 41 requires the return of property seized under a search warrant if the
property is not required as evidence and no restraining order affecting the property
was in force when it was seized or a restraining order is refused after having been
applied for not later than 7 days after seizure of the property.
Clause 42 makes it an offence to obstruct a person executing a search warrant.
Division 3 - Search powers (property tracking)
Clause 43 enables an authorised officer to enter premises, and to search for and
seize any property-tracking document, if authorised to do so by the occupier of the
premises.
Clause 44 specifies the basis on which application may be made to the Supreme
Court for the issue of a search warrant as provided by clause 45.
Clause 45 authorises the Supreme Court to issue a search warrant if satisfied as
to certain matters such as failure to comply with a production order or the reasonable
possibility of such a failure.
Clause 46 specifies matters required to be stated in a search warrant.
Clause 47 authorises the seizure of documents and evidence relating to a criminal
offence.
Division 4 - Monitoring orders
Clause 48 authorises the Supreme Court to make an order (a "monitoring order")
directing a financial institution to give to the Commission, or to a person authorised
by the Commission, information relating to financial transactions of 3 particular
person during a period of up to 3 months.
Clause 49 makes it an offence for a financial institution to contravene a
monitoring order or give false or misleading information in purported compliance
with a monitoring order.
Clause 50 imposes requirements restricting to certain persons knowledge of the
existence and operation of a monitoring order.
Clause 51 authorises a financial institution to give the Commission any
information the institution reasonably believes would be relevant to investigation of
a drug-related activity or the making of a confiscation order, or would assist
enforcement of the proposed Act. Provision is also made for immunity from any
action, suit or proceeding based on the disclosure of the information.
Clause 52 protects a financial institution, and its officers, employees and agents,
from action under the provisions relating to "money laundering" in section 73 of the
Confiscation of Proceeds of Crime Act 1989 if it is the subject of a monitoring order
or if it promptly passes on information referred to in clause 51.
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Clause 53 provides for the courts before which, and the manner in which, offences
under the proposed Act are to be dealt with.
Clause 54 provides for the acceptance in evidence of a certificate of a delegate or
full-time member of the Commission to the effect that, at a particular time, a
specified person was, or was not, an authorised officer and also provides for the
acceptance in proceedings under the proposed Act (other than criminal proceedings)
of a certificate of conviction of an offence as evidence of commission of the offence.
Clause 55 deals with the circumstances in which the state of mind, or the conduct,
of a director, employee or agent of a body corporate, or an employee or agent of a
person other than a body corporate, is to be ascribed to the body corporate, employer
or principal.
PART 6 - MISCELLANEOUS
Clause 56 makes it clear that more than one restraining order or assets forfeiture
order can be made on the basis of a person's drug-related activity.
Clause 57 authorises the Supreme Court to extend the operation of an order
under the Act that applies to an interest in property so that it applies to other
interests in the property if the extension is necessary to protect or enhance the value
or saleability of the interest.
Clause 58 makes it clear that the proposed Act can operate in respect of the
activities and interests of a person who has died.
Clause 59 empowers the Supreme Court to make orders to prevent schemes
designed to circumvent the provisions of the proposed Act.
Clause 60 states that the proposed Act binds the Crown.
Clause 61 precludes the making, in relation to the same drug-related activity, of
a proceeds assessment order under the proposed Act and a drug proceeds order
under the Confiscation of Proceeds of Crime Act 1989. The clause also provides that
the proposed Act does not otherwise affect the exercise of a function under another
Act and another Act does not affect the exercise of a function under the proposed
Act.
Clause 62 enables the Supreme Court to control publication of matter arising in
proceedings for an order under the proposed Act against a person or property if a
charge has been laid in relation to a drug-related activity but proceedings on the
charge have not commenced or, if they have commenced, they have not been
completed.
Clause 63 excludes certain grounds for a stay of proceedings (other than criminal
proceedings) under the proposed Act.
Clause 64 exempts from stamp duty the vesting of forfeited property recovered by
a person other than the person engaged in the drug-related activity on which the
assets forfeiture order was based.
Drug Trafficking (Civil Proceedings) 1990
Clause 65 makes provision concerning the service of notices under the proposed
Act.
Clause 66 is a transitional provision.
Clause 67 authorises the making of regulations for the purposes of the proposed
Act.
Clause 68 provides for a consequential amendment to the Search Warrants Act
1985.
Clause 69 provides for a consequential amendment to the State Drug Crime
Commission Act 1985.
Clause 70 provides for a consequential amendment to the Victims Compensation
Act 1987.
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