CRIMINAL ASSETS CONFISCATION BILL 2004

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Interpretation

4 Meaning of abscond

5 Meaning of convicted of an offence

6 Meaning of effective control

7 Meaning of proceeds and instrument of an offence

8 Meaning of quashing a conviction

9 Act binds Crown

10 Application of Act

11 Interaction with other Acts

12 Corresponding laws

13 Delegation

14 Jurisdiction of Magistrates Court

Part 2—Freezing orders

15 Interpretation

16 Commissioner may authorise police officers for purposes of Part

17 Authorised police officer may apply for freezing order

18 Urgent applications

19 Notice of freezing order to be given to financial institution

20 Effect of freezing order

21 Duration of freezing order

22 Failure to comply with freezing order

23 Offence to disclose existence of freezing order

Part 3—Restraining orders

Division 1—Restraining orders

24 Restraining orders

25 Notice of application

26 Refusal to make an order for failure to give undertaking

27 Order allowing expenses to be paid out of restrained property

28 Excluding property from or revoking restraining orders in certain cases when expenses are not allowed

Division 2—Giving effect to restraining orders

29 Notice of a restraining order

30 Registering restraining orders

31 Notifying registration authorities of exclusions from or variations to restraining orders

32 Court may set aside a disposition contravening a restraining order

33 Contravening restraining orders

Division 3—Excluding property from restraining orders

34 Court may exclude property from a restraining order

35 Application to exclude property from a restraining order after notice of the application for the order

36 Application to exclude property from a restraining order after notice of the order

37 Application not to be heard unless DPP has had reasonable opportunity to conduct an examination

38 Giving security etc to exclude property from a restraining order

Division 4—Further orders

39 Court may order Administrator to take custody and control of property

40 Ancillary orders

41 Contravening ancillary orders relating to foreign property

Division 5—Duration of restraining orders

42 When a restraining order comes into force

43 Application to revoke a restraining order

44 Giving security etc to revoke a restraining order

45 Notice of revocation of a restraining order

46 Cessation of restraining orders

Part 4—Forfeiture

Division 1—Forfeiture orders

Subdivision 1—Forfeiture orders

47 Forfeiture orders

48 Instrument substitution declarations

49 Additional application for a forfeiture order

50 Notice of application

51 Procedure on application

52 Amending an application

53 Forfeiture orders can extend to other interests in property

54 Forfeiture orders must specify the value of forfeited property

55 Declaration by court in relation to buying back interests in forfeited property

56 Court may make supporting directions

Subdivision 2—Reducing the effect of forfeiture orders

57 Relieving certain dependants from hardship

58 Making exclusion orders before forfeiture order made

59 Making exclusion orders after forfeiture

60 Applying for exclusion orders

61 Making compensation orders

62 Applying for compensation orders

Subdivision 3—The effect of acquittals and quashing of convictions

63 Certain forfeiture orders unaffected by acquittal or quashing of conviction

64 Discharge of conviction based forfeiture order on quashing of conviction

65 Notice of application for confirmation of forfeiture order

66 Procedure on application for confirmation of forfeiture order

67 Court may confirm forfeiture order

68 Effect of court’s decision on confirmation of forfeiture order

69 Administrator must not deal with forfeited property before the court decides on confirmation of forfeiture order

70 Giving notice if a forfeiture order is discharged on appeal or by quashing of a conviction

71 Returning property etc following the discharge of a forfeiture order

Subdivision 4—Buying back interests in forfeited property etc

72 A person may buy back interest in forfeited property

73 A person may buy out another person's interest in forfeited property

Division 2—Forfeiture on conviction of a serious offence

Subdivision 1—Forfeiture on conviction of a serious offence

74 Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence

75 Making an extension order extending the period before property is forfeited

76 Excluding property from forfeiture under this Division

77 Court may declare that property has been forfeited under this Division

Subdivision 2—Recovery of forfeited property

78 Court may make orders relating to transfer of forfeited property etc

79 Court may make orders relating to buying back forfeited property

80 Applying for orders under sections 78 and 79

81 A person may buy back interest in forfeited property

82 A person may buy out another person's interest in forfeited property

Subdivision 3—The effect of acquittals and quashing of convictions

83 The effect on forfeiture of convictions being quashed

84 Notice of application for confirmation of forfeiture

85 Procedure on application for confirmation of forfeiture

86 Court may confirm forfeiture

87 Effect of court’s decision on confirmation of forfeiture

88 Administrator must not deal with forfeited property before the court decides on confirmation of forfeiture

89 Giving notice if forfeiture ceases to have effect on quashing of a conviction

Division 3—Forfeited property

90 What property is forfeited and when

91 When the Crown can begin dealing with property specified in a forfeiture order

92 When the Crown can begin dealing with property forfeited under section 74

93 How forfeited property must be dealt with

94 Dealings with forfeited property

Part 5—Other confiscation orders

Division 1—Pecuniary penalty orders

Subdivision 1—Pecuniary penalty orders

95 Making pecuniary penalty orders

96 Additional application for a pecuniary penalty order

97 Pecuniary penalty orders made in relation to serious offence convictions

98 Making of pecuniary penalty order if person has absconded

Subdivision 2—Pecuniary penalty order amounts

99 Determining penalty amounts

100 Evidence the court is to consider in assessing the value of benefits

101 Value of benefits derived

102 Value of benefits may be as at time of assessment

103 Matters that do not reduce the value of benefits

104 Benefits already the subject of pecuniary penalty

105 Property under a person’s effective control

106 Effect of property vesting in an insolvency trustee

107 Reducing penalty amounts to take account of forfeiture and proposed forfeiture

108 Reducing penalty amounts to take account of fines etc

109 Varying pecuniary penalty orders to increase penalty amounts

Division 2—Literary proceeds orders

Subdivision 1—Literary proceeds orders

110 Meaning of literary proceeds

111 Making literary proceeds orders

112 Matters taken into account in deciding whether to make literary proceeds orders

Subdivision 2—Literary proceeds amounts

113 Determining literary proceeds amounts

114 Deductions from literary proceeds amounts

115 Varying literary proceeds orders to increase literary proceeds amounts

Subdivision 3—Literary proceeds amounts may cover future literary proceeds

116 Literary proceeds orders can cover future literary proceeds

117 Enforcement of literary proceeds orders in relation to future literary proceeds

Division 3—Matters generally applicable to orders under this Part

Subdivision 1—Applications for confiscation orders under this Part

118 Notice of application

119 Amending an application

Subdivision 2—Ancillary orders

120 Ancillary orders

Subdivision 3—Reducing pecuniary penalty amount or literary proceeds amount

121 Reducing penalty amounts and literary proceeds amounts to take account of tax paid

Subdivision 4—Enforcement

122 Enforcement of confiscation orders under this Part

123 Property subject to a person’s effective control

Subdivision 5—Effect of acquittals and quashing of convictions

124 Acquittals do not affect confiscation orders under this Part

125 Discharge of confiscation order under this Part if made in relation to a conviction

126 Confiscation order under this Part unaffected if not made in relation to a conviction

127 Notice of application for confirmation of confiscation order under this Part

128 Procedure on application for confirmation of confiscation order under this Part

129 Court may confirm confiscation order under this Part

130 Effect of court’s decision on confirmation of confiscation order under this Part

Part 6—Information gathering

Division 1—Examinations

Subdivision 1—Examination orders

131 Examination orders relating to restraining orders

132 Examination orders relating to applications for confirmation of forfeiture

Subdivision 2—Examination notices

133 Examination notices

134 Form and content of examination notices

Subdivision 3—Conducting examinations

135 Time and place of examination

136 Requirements made of person examined

137 Examination to take place in private

138 Role of the examinee’s legal practitioner during examination

139 Record of examination

140 Questions of law

141 DPP may restrict publication of certain material

142 Protection of DPP etc

Subdivision 4—Offences

143 Failing to attend an examination

144 Offences relating to appearance at an examination

145 Self-incrimination

146 Unauthorised presence at an examination

147 Breaching conditions on which records of statements are provided

148 Breaching directions preventing or restricting publication

Division 2—Production orders

149 Interpretation

150 Making production orders

151 Contents of production orders

152 Powers under production orders

153 Retaining produced documents

154 Self-incrimination

155 Varying production orders

156 Making false statements in applications

157 Disclosing existence or nature of production orders

158 Failing to comply with a production order

159 Destroying etc a document subject to a production order

Division 3—Notices to financial institutions

160 Giving notices to financial institutions

161 Immunity from liability

162 Making false statements in notices

163 Disclosing existence or nature of notice

164 Failing to comply with a notice

Division 4—Monitoring orders

165 Making monitoring orders

166 Contents of monitoring orders

167 Immunity from liability

168 Making false statements in applications

169 Disclosing existence or operation of monitoring order

170 Failing to comply with monitoring order

Division 5—Search and seizure

Subdivision 1—Preliminary

171 Interpretation

Subdivision 2—Search warrants

172 Warrants authorising seizure of property

173 Applications for warrants

174 Powers conferred by warrant

175 Hindering execution of warrant

176 Person with knowledge of a computer or a computer system to assist access etc

177 Providing documents after execution of a search warrant

Subdivision 3—Seizure without warrant

178 Seizure without warrant allowed in certain circumstances

179 Stopping and searching vehicles

Subdivision 4—Dealing with material liable to seizure under this Act

180 Receipts for material seized

181 Responsibility for material seized

182 Effect of obtaining forfeiture orders

183 Returning seized material

184 Magistrate may order that material be retained

185 Return of seized material to third parties

186 Return of seized material if applications are not made for restraining orders or forfeiture orders

187 Effect of obtaining restraining orders

188 Effect of refusing applications for restraining orders or forfeiture orders

Subdivision 5—Miscellaneous

189 Making false statements in applications

Part 7—Administration

Division 1—Powers and duties of the Administrator

Subdivision 1—Preliminary

190 Appointment of Administrator

191 Property to which the Administrator’s powers and duties under this Division apply

Subdivision 2—Obtaining information about controlled property

192 Access to documents

193 Suspect to assist Administrator

194 Power to obtain information and evidence

195 Self-incrimination

196 Failure of person to attend

197 Refusal to be sworn or give evidence etc

Subdivision 3—Dealings relating to controlled property

198 Preserving controlled property

199 Rights attaching to shares

200 Destroying or disposing of property

201 Objection to proposed destruction or disposal

202 Procedure if person objects to proposed destruction or disposal

203 Proceeds from sale of property

Subdivision 4—Discharging pecuniary penalty orders and literary proceeds orders

204 Direction by a court to the Administrator

205 Administrator not to carry out directions during appeal periods

206 Discharge of pecuniary penalty orders and literary proceeds orders

Division 2—Legal assistance

207 Payments to Legal Services Commission for representing suspects and other persons

208 Disclosure of information to Legal Services Commission

Division 3—Victims of Crime Fund

209 Credits to the Victims of Crime Fund

Division 4—Charges on property

Subdivision 1—Charge to secure certain amounts payable to the Crown

210 Charge on property subject to restraining order

Subdivision 2—Charge to secure certain amounts payable to Legal Services Commission

211 Legal Services Commission charges

Subdivision 3—Registering and priority of charges

212 Charges may be registered

213 Priority of charges

Part 8—Miscellaneous

214 Authorised officers to be issued identity cards

215 Immunity from civil liability

216 Manner of giving notices etc

217 Registration of orders made under corresponding laws

218 Certain proceedings to be civil

219 Consent orders

220 Onus and standard of proof

221 Applications to certain courts

222 Proof of certain matters

223 Stay of proceedings

224 Effect of the confiscation scheme on sentencing

225 Deferral of sentencing pending determination of confiscation order

226 Appeals

227 Costs

228 Interest

229 Effect of a person’s death

230 Regulations

Schedule 1—Related amendments, repeals and transitional provisions

Part 1—Preliminary

1 Amendment provisions

Part 2—Amendment of Controlled Substances Act 1984

2 Repeal of section 43

3 Amendment of section 44—Matters to be considered when court fixes penalty

4 Amendment of section 52A—Seized property and forfeiture

Part 3—Amendment of Criminal Law Consolidation Act 1935

5 Amendment of section 348—Interpretation

Part 4—Amendment of Financial Transaction Reports (State Provisions) Act 1992

6 Amendment of section 5—Further reports of suspect transactions

7 Amendment of section 6—Reports of suspect transactions not reported under Commonwealth Act

Part 5—Amendment of Legal Services Commission Act 1977

8 Amendment of section 5—Interpretation

9 Amendment of section 18B—Special provisions in relation to property subject to a restraining order

Part 6—Repeal of Criminal Assets Confiscation Act 1996

10 Repeal of Act

Part 7—Transitional provisions

11 Transitional provision

The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the Criminal Assets Confiscation Act 2004.

2—Commencement

This Act will come into operation on a day to be fixed by proclamation.

3—Interpretation

In this Act, unless the contrary intention appears—

abscond—see section 4;

account means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for—

(a) a fixed term deposit; and

(b) a safety deposit box or other safe custody facility;

Administrator means the person appointed as the Administrator under section 190;

agent includes, if the agent is a corporation, the officers and agents of the corporation;

Australia, when used in a geographical sense, includes the external Territories;

authorised officer means—

(a) the DPP; or

(b) a police officer; or

(c) a member, officer or employee of an enforcement agency who is authorised in writing by the head of that agency for the purposes of this Act;

benefit includes a service or advantage;

charged—a person is charged with an offence if an information or complaint is laid against the person for the offence whether or not—

(a) a summons to require the attendance of the person to answer the information or complaint has been issued; or

(b) a warrant for the arrest of the person has been issued;

compensation order means an order made under section 61;

confiscation order means a forfeiture order, a pecuniary penalty order or a literary proceeds order;

controlled property means property subject to an order under section 39;

convicted—see section 5;

conviction day—see section 5;

corresponding law means a law declared to be a corresponding law under section 12;

court means—

(a) the Supreme Court; or

(b) the District Court; or

data includes data in any form in which it may be stored or processed in a computer (including a computer program or part of a computer program);

data storage device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device;

deal with—dealing with a person's property includes—

(a) if a debt is owed to the person—making a payment to a person in reduction of the amount of the debt; and

(b) removing the property from the State; and

(d) if the property is covered by a restraining order—engaging in a transaction that has the direct or indirect effect of reducing the value of the person’s interest in the property;

dependant of a person means—

(a) a spouse of the person; or

(b) a child of the person who depends on the person for support; or

derived—a person derives proceeds, a benefit or literary proceeds if —

(a) the person; or

(b) another person at the request or direction of the first person,

derives the proceeds, benefit or literary proceeds, whether directly or indirectly;

director, in relation to a financial institution or a corporation, means—

(a) if the institution or corporation is a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory—a constituent member of the body corporate; and

(b) any person occupying or acting in the position of director of the institution or corporation, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position; and

(c) any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act, other than when those directors only do so—

(i) in the proper performance of the functions attaching to the person’s professional capacity; or

(ii) in their business relationship with the person;

document includes—

(a) any paper or other material on which there is writing; and

(b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

(c) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device; and

(d) any map, plan, drawing, graph or photograph;

DPP means the Director of Public Prosecutions and includes a person acting in the position of Director of Public Prosecutions;

drug means a substance that is a drug of dependence or a prohibited substance within the meaning of the Controlled Substances Act 1984;

effective control—see section 6;

encumbrance, in relation to property, includes any interest, mortgage, charge, right, claim or demand in respect of the property;

enforcement agency means—

(a) the DPP; or

(b) an agency prescribed by regulation as an enforcement agency for the purposes of this Act or specified provisions of this Act;

examination notice means a notice given under section 133;

examination order means an order under section 131 or 132 that is in force;

exclusion order means an order under section 58;

executive officer in relation to a financial institution or a corporation, means any person, by whatever name called and whether or not the person is a director of the institution or corporation, who is concerned, or takes part, in the management of the institution or corporation;

extension order means an order under section 75;

financial institution means—

(a) an ADI; or

(b) a friendly society; or

foreign forfeiture order has the same meaning as in the Mutual Assistance Act;

foreign pecuniary penalty order has the same meaning as in the Mutual Assistance Act;

foreign restraining order has the same meaning as in the Mutual Assistance Act;

forfeiture order means an order under section 47 that is in force;

freezing order means an order under section 17 that is in force;

instrument—see section 7;

instrument substitution declaration means a declaration under section 48;

interest, in relation to property or a thing, means—

(a) a legal or equitable estate or interest in the property or thing; or

(b) a right, power or privilege in connection with the property or thing,

whether present or future and whether vested or contingent;

legal assistance costs means the costs of providing legal assistance to an assisted person under the Legal Services Commission Act 1977 (see section 5(2) of that Act);

literary proceeds—see section 110;

literary proceeds amount—see section 113;

literary proceeds order means an order under section 111 that is in force;

monitoring order means an order under section 165 that is in force;

Mutual Assistance Act means the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth as in force from time to time;

officer, in relation to a financial institution or a corporation, means a director, secretary, executive officer or employee;

pecuniary penalty order means an order under section 95 that is in force;

penalty amount—see section 99;

premises means a building, structure or place (whether built on or not and whether enclosed or unenclosed) and includes an aircraft, vessel or vehicle;

proceeds—see section 7;

production order means an order under section 150 that is in force;

property means real or personal property (tangible or intangible) including—

(a) a chose in action; and

(b) an interest in property;

property-tracking document—see section 149;

putative spouse means a person who is cohabiting with a person as the husband or wife de facto of the person and—

(a) who has so cohabited continuously over the last preceding period of 5 years, or for periods aggregating 5 years over the last preceding period of 6 years; or

(b) who has had sexual relations with the person resulting in the birth of a child;

quashed—see section 8;

reciprocating State means a State or Territory in which a corresponding law is in force;

recognised Australian forfeiture order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

recognised Australian pecuniary penalty order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

recognised Australian restraining order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

registrable property means property the title to which is passed by registration on a register kept pursuant to a provision of a law of the State or any other law;

registration authority means an authority responsible for administering a law providing for registration of title to, or charges over, property of a particular kind;

related offence—an offence is related to another offence if the physical elements of the 2 offences are substantially the same acts or omissions;

responsible custodian, in relation to property or other material seized under this Act, means—

(a) if the property or other material is seized by the DPP—the DPP; or

(b) in any other case—the head of the enforcement agency of the authorised officer who seized the property or other material;

restraining order means an order under section 24 that is in force;

search warrant means a warrant issued under section 172 that is in force;

serious drug offence means—

(a) an offence against section 32 of the Controlled Substances Act 1984 (other than an offence of a kind described in subsection (6) of that section); or

(b) a conspiracy to commit, or an attempt to commit, such an offence; or

serious offence means—

(a) an indictable offence; or

(b) a serious drug offence; or

(i) section 68(3) of the Criminal Law Consolidation Act 1935; or

(ii) section 34 or 44 of the Fisheries Act 1982; or

(iii) section 99 of the Liquor Licensing Act 1997; or

(iv) a provision of the Lottery and Gaming Act 1936; or

(v) section 47, 48, 48A, 51 or 60 of the National Parks and Wildlife Act 1972; or

(vi) section 28(1)(a), 33(2) or 41 of the Summary Offences Act 1953;

spouse includes a putative spouse;

sufficient consideration, in relation to an acquisition or disposal of property, means consideration that is sufficient and that reflects the value of the property, having regard solely to commercial considerations;

suspect, in relation to a restraining order or a confiscation order, means a person who—

(a) has been convicted of; or

(b) has been charged with, or is proposed to be charged with; or

(d) if the order is a confiscation order—committed,

the offence or offences to which the order relates;

tainted property means—

(a) proceeds of a serious offence; or

(b) an instrument of a serious offence or property subject to an instrument substitution declaration;

unlawful activity means an unlawful act or omission—

(a) that constitutes a serious offence; or

(b) that would, if committed in this State, constitute a serious offence;

vehicle includes an aircraft or vessel;

Victims of Crime Fund means the fund of that name continued in existence under the Victims of Crime Act 2001.

4—Meaning of abscond

(1) For the purposes of this Act, a person is taken to abscond in connection with an offence if—

(a) an information or complaint is laid alleging the person committed the offence; and

(b) a warrant for the person’s arrest is issued in relation to that information or complaint; and

(i) the person—

(A) cannot be found; or

(B) is, for any other reason, not amenable to justice and, if the person is in a jurisdiction outside Australia, extradition proceedings are not on foot in that jurisdiction; or

(ii) —

(A) the person is, because he or she is in a jurisdiction outside Australia, not amenable to justice; and

(B) extradition proceedings are on foot in that jurisdiction,

and subsequently those proceedings terminate without an order for the person’s extradition being made.

(2) For the purposes of subsection (1), extradition proceedings are not taken to be on foot in a jurisdiction unless the person is in custody, or is on bail, in that jurisdiction.

5—Meaning of convicted of an offence

(1) For the purposes of this Act, a person is taken to be convicted of an offence if—

(a) the person is convicted, whether summarily or on indictment, of the offence (and in such a case the conviction day for the purposes of this Act is the day on which the person was convicted, whether or not the court passed sentence on that day); or

(b) the person is charged with, and found guilty of, the offence but is discharged without conviction (and in such a case the conviction day for the purposes of this Act is the day on which the person was discharged without conviction); or

(c) a court, with the consent of the person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another offence (and in such a case the conviction day for the purposes of this Act is the day on which the court took the offence into account in passing the sentence); or

(d) the person absconds in connection with the offence (and in such a case the conviction day for the purposes of this Act is the day on which the person is taken to have absconded); or

(e) a court has, under Part 8A Division 2 of the Criminal Law Consolidation Act 1935, recorded findings that—

(i) the person is mentally incompetent to commit the offence; and

(ii) the objective elements of the offence are established,

(and in such a case the conviction day for the purposes of this Act is the day on which the court recorded those findings or, if those findings were recorded on different days, the later of the days); or

(f) a court has, under Part 8A Division 3 of the Criminal Law Consolidation Act 1935, recorded findings that—

(i) the person is mentally unfit to stand trial on a charge of the offence; and

(ii) the objective elements of the offence are established,

(2) If subsection (1)(d), (1)(e) or (1)(f) applies to a person, the person is taken—

(a) to have committed the offence; and

(b) to have been convicted of the offence before an appropriate court.

6—Meaning of effective control

(1) For the purposes of this Act, the following principles apply when determining whether property is subject to the effective control of a person:

(a) property may be subject to the effective control of a person whether or not the person has an interest in the property;

(b) property that is held on trust for the ultimate benefit of a person is taken to be under the effective control of the person;

(c) if a person is one of 2 or more beneficiaries under a discretionary trust, the following undivided proportion of the trust property is taken to be under the effective control of the person—

(d) if property is initially owned by a person and, within 6 years (whether before or after) of an application for a restraining order or a confiscation order being made, is disposed of to another person without sufficient consideration, then the property is taken still to be under the effective control of the first person;

(e) property may be subject to the effective control of a person even if one or more other persons have joint control of the property.

(2) In determining whether or not property is subject to the effective control of a person, regard may be had to—

(a) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property; and

(b) a trust that has a relationship to the property; and

(c) family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (a) or trusts of the kind referred to in paragraph (b), and other persons.

7—Meaning of proceeds and instrument of an offence

(1) For the purposes of this Act, the following rules apply when determining whether property is proceeds or an instrument of an offence:

(a) property is proceeds of an offence if it is—

(i) wholly derived or realised, whether directly or indirectly, from the commission of the offence; or

(ii) partly derived or realised, whether directly or indirectly, from the commission of the offence,

whether the property is situated within or outside the State;

(b) property is an instrument of an offence if it is—

(i) used in, or in connection with, the commission of an offence; or

(ii) intended to be used in, or in connection with, the commission of an offence,

whether the property is situated within or outside the State;

(i) wholly or partly derived or realised from the disposal of, or other dealing with, proceeds of the offence or an instrument of the offence; or

(ii) wholly or partly acquired using proceeds of the offence or an instrument of the offence,

including as a result of a previous application of this section;

(d) property remains proceeds of an offence or an instrument of an offence even if it is—

(i) credited to an account; or

(ii) disposed of or otherwise dealt with;

(e) property can be proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence.

(2) Subject to this section, property only ceases to be proceeds of an offence or an instrument of an offence if—

(a) it is acquired by a third party for sufficient consideration without the third party knowing, and in circumstances that would not arouse a reasonable suspicion, that the property was proceeds of an offence or an instrument of an offence (as the case requires); or

(b) it vests in a person from the distribution of the estate of a deceased person, having been previously vested in a person from the distribution of the estate of another deceased person while the property was still proceeds of an offence or an instrument of an offence (as the case requires); or

(i) an order in proceedings under the Family Law Act 1975 of the Commonwealth with respect to the property of the parties to a marriage or either of them; or

(ii) a financial agreement within the meaning of that Act,

and 6 years have elapsed since that distribution; or

(d) it has been distributed in accordance with an order in proceedings under the De Facto Relationships Act 1996 with respect to the division of property of de facto partners and 6 years have elapsed since that distribution; or

(e) it is acquired by a person as payment for reasonable legal expenses incurred in connection with an application under this Act or defending a criminal charge; or

(f) a forfeiture order in respect of the property is satisfied; or

(g) a recognised Australian restraining order or a recognised Australian forfeiture order is satisfied in respect of the property; or

(h) it is otherwise sold or disposed of under this Act; or

(i) in any other circumstances specified in the regulations.

(3) If—

(a) a person once owned property that was proceeds of an offence or an instrument of an offence; and

(b) the person ceased to be the owner of the property and (at that time or a later time) the property stopped being proceeds of an offence or an instrument of the offence under subsection (2) (other than under subsection (2)(f)); and

then the property becomes proceeds of an offence or an instrument of the offence again (as the case requires).

(4) Subsection (2)(c) does not apply if, despite the distribution referred to in that paragraph, the property is still subject to the effective control of a person who—

(a) has been convicted of; or

(b) has been charged with, or who is proposed to be charged with; or

the offence in question.

8—Meaning of quashing a conviction

For the purposes of this Act, a person’s conviction of an offence is taken to be quashed if—

(a) if the person is taken to have been convicted of the offence because of section 5(1)(a)—the conviction is quashed or set aside; or

(b) if the person is taken to have been convicted of the offence because of section 5(1)(b)—the finding of guilt is quashed or set aside; or

(c) if the person is taken to have been convicted of the offence because of section 5(1)(c)—either of the following events occur:

(i) the person’s conviction of the other offence referred to in that paragraph is quashed or set aside;

(ii) the decision of the court to take the offence into account in passing sentence for that other offence is quashed or set aside; or

(d) if the person is taken to have been convicted of the offence because of section 5(1)(d)—after the person is brought before a court in respect of the offence, the person is discharged in respect of the offence or a conviction of the person for the offence is quashed or set aside; or

(e) if the person is taken to have been convicted of the offence because of section 5(1)(e) or 5(1)(f)—the finding that the objective elements of the serious offence have been established is set aside or reversed.

9—Act binds Crown

This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, the Crown in all its other capacities, but not so as to impose any criminal liability on the Crown.

10—Application of Act

This Act applies to—

(a) property within or outside the State; and

(b) a serious offence committed at any time (whether the offence occurred before or after the commencement of this Act and whether or not a person is convicted of the offence); and

(c) a person's conviction of a serious offence (whether the conviction occurred before or after the commencement of this Act).

11—Interaction with other Acts

This Act is in addition to, and does not limit or derogate from, the provisions of any other Act.

12—Corresponding laws

The Governor may, by proclamation—

(a) declare a law of the Commonwealth, another State or a Territory to be a corresponding law for the purposes of this Act; or

(b) vary or revoke a declaration previously made under this section.

13—Delegation

(1) The DPP or the Administrator may, by instrument in writing, delegate a power or function under this Act—

(a) to a particular person; or

(b) to the person for the time being occupying a particular position.

(2) A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated.

(3) A delegation—

(a) may be absolute or conditional; and

(b) does not derogate from the power of the delegator to act personally in a matter; and

14—Jurisdiction of Magistrates Court

(1) Despite any provision of the Magistrates Court Act 1991, the Magistrates Court has jurisdiction to hear and determine any application that may be made to a court under this Act unless the application involves property with a value exceeding $300 000.

(2) If the Magistrates Court makes an order under this Act requiring a person to pay to any other person, or to the Crown, a monetary amount exceeding the amount specified under the Magistrates Court Act 1991 as the monetary limit on the Court's civil jurisdiction in relation to actions to recover a debt—

(a) the Principal Registrar of the Magistrates Court must issue a certificate containing the particulars specified in the regulations in relation to the order; and

(b) the certificate may be registered, in accordance with the regulations, in the District Court and, on registration, is enforceable in all respects as a final judgment of the District Court.

(3) For the avoidance of doubt, no monetary limit applies in relation to the jurisdiction conferred on a magistrate under Part 2.

Part 2—Freezing orders

15—Interpretation

In this Part—

authorised police officer means a police officer, or a police officer of a class, authorised under section 16.

16—Commissioner may authorise police officers for purposes of Part

(1) The Commissioner of Police may authorise—

(a) a police officer; or

(b) a specified class of police officers,

for the purposes of this Part.

(2) An authorisation under this section—

(a) must be by instrument in writing; and

(b) may be subject to conditions specified in the authorisation; and

17—Authorised police officer may apply for freezing order

(1) A magistrate may, on application by an authorised police officer, make an order (a freezing order) that a specified financial institution must not allow any person to make transfers or withdrawals from a specified account (except in the manner and circumstances, if any, specified in the order) if satisfied that—

(a) there are reasonable grounds to suspect that the person in whose name the account is held or a person who has an interest in that account—

(i) has committed, or is about to commit, a serious offence; or

(ii) was involved in the commission, or is about to be involved in the commission, of such an offence; or

(iii) has derived a benefit, or is about to derive a benefit, from the commission of such an offence; and

(b) an application for a restraining order is likely to be made in respect of property in which —

(i) the person in whose name the account is held has an interest; or

(ii) the person who has an interest in the account has an interest; and

(2) In determining whether it is appropriate to make a freezing order, the magistrate must have regard to—

(a) the amount of money in the account to be frozen; and

(b) whether the account is held in the name of more than one person; and

(3) Subject to section 18, the applicant for a freezing order must submit evidence in support of the application in the form of an affidavit.

18—Urgent applications

(1) An application for a freezing order may be made by telephone if, in the opinion of the applicant, the order is urgently required and there is not enough time to make the application personally.

(2) If an application for a freezing order is made by telephone—

(a) the applicant must inform the magistrate—

(i) of the applicant's name and rank; and

(ii) that he or she is an authorised police officer for the purposes of this Part,

and the magistrate, on receiving that information, is entitled to assume, without further inquiry, that the applicant is so authorised; and

(b) the applicant must inform the magistrate of the purpose for which the order is required, the grounds on which it is sought and any other information that the magistrate is required to have regard to in consider an application for a freezing order; and

(c) if it appears to the magistrate from the information given by the applicant that it would be appropriate to make a freezing order, the magistrate must inform the applicant of the facts that justify, in the magistrate's opinion, the making of the order, and must not proceed to make the order unless the applicant undertakes to make an affidavit verifying those facts; and

(d) if the applicant gives such an undertaking, the magistrate may then make the order, noting on the order the facts that justify, in the magistrate's opinion, the making of the order and informing the applicant of the terms of the order; and

(e) the applicant must, as soon as practicable after the making of the order, forward to the magistrate an affidavit verifying the facts referred to in paragraph (c); and

(f) the magistrate must, as soon as practicable after the making of the order, forward to the applicant a copy of the order.

(3) A magistrate who makes an order under this section must file the order, or a copy of the order, and the affidavit verifying the grounds on which the application for the order was made, in the Magistrates Court.

19—Notice of freezing order to be given to financial institution

(1) A freezing order issued in relation to an account at a financial institution takes effect on the date and at the time that notice of the order is given to the financial institution in accordance with this section.

(2) Notice of a freezing order may be given to a financial institution—

(a) by giving the financial institution a copy of the freezing order; or

(b) if the applicant for the order was not given a copy of the order at the time the order was made—by giving the financial institution a notice in the prescribed form.

(3) If notice of a freezing order is not given to the relevant financial institution within 72 hours after the order was made, the order will be of no force or effect.

20—Effect of freezing order

(1) For the purposes of a freezing order, it is irrelevant whether or not money is deposited into the account in relation to which the freezing order was made after the order takes effect.

(2) A freezing order does not prevent a financial institution from making withdrawals from an account for the purpose of meeting a liability imposed on the financial institution in connection with that account by any law of the State or the Commonwealth.

21—Duration of freezing order

(1) Subject to this section, a freezing order ceases to be in force on—

(a) the making of a restraining order in respect of the money in the account; or

(b) the expiration of 72 hours after the time at which the freezing order took effect,

whichever occurs first.

(2) An authorised police officer may apply to a magistrate for an extension of the duration of a freezing order.

(3) On an application under subsection (2), the magistrate—

(a) must have regard to the matters set out in section 17(2); and

(b) must not extend the duration of the freezing order unless satisfied that—

(i) an application for a restraining order in respect of the money in the account has been made; and

(ii) the application for the restraining order has not been determined.

(4) An extension of the duration of a freezing order issued in relation to an account at a financial institution takes effect on the date and at the time that notice of the extension is given to the financial institution in accordance with this section.

(5) Notice of the extension may be given to a financial institution by giving the financial institution a notice in the prescribed form.

(6) If the duration of a freezing order is extended in accordance with this section, the freezing order ceases to be in force when the application for the restraining order referred to in subsection (3)(b) has been determined (and if a restraining order is not made in respect of the money in the account, the applicant for the extension must give the financial institution a notice in the prescribed form advising the financial institution of the cessation of the freezing order).

22—Failure to comply with freezing order

A financial institution that has been given notice of a freezing order must not, without reasonable excuse, fail to comply with the order.

Maximum penalty: $20 000.

23—Offence to disclose existence of freezing order

(1) A financial institution that has been given notice of a freezing order made in relation to an account must not, while the order is in force, disclose the existence or operation of the order to any person except—

(a) a police officer; or

(b) an officer or agent of the financial institution, for the purpose of ensuring that the freezing order is complied with; or

(c) a legal practitioner acting for the financial institution, for the purpose of obtaining legal advice or representation in relation to the freezing order; or

(d) a person in whose name the account is held or who has an interest in the account.

Maximum penalty: $20 000.

(2) If the existence of a freezing order is disclosed to a person in accordance with subsection (1)(a), (b) or (c) in the course of the person performing duties as a police officer, an officer or agent of a financial institution or a legal practitioner, the person must not, while the order is in force, disclose to any other person the existence or operation of the order except—

(a) for the purpose of performing duties as a police officer, an officer or agent of the financial institution or a legal practitioner (as the case may be); or

(b) for the purposes of, or in connection with, legal proceedings; or

Maximum penalty: $5 000 or imprisonment for 1 year.

(3) A reference in this section to disclosing the existence or operation of a freezing order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the freezing order.

Part 3—Restraining orders

Division 1—Restraining orders

24—Restraining orders

(1) A court must, on application by the DPP, make an order (a restraining order) that specified property must not be disposed of or otherwise dealt with by any person (except in the manner and circumstances, if any, specified in the order) if satisfied that—

(a) a person has been convicted of, or has been charged with, a serious offence, or it is proposed that the person be charged with a serious offence; or

(b) a person is suspected on reasonable grounds of having committed a serious offence; or

(c) there are reasonable grounds to suspect that the property is the proceeds of, or is an instrument of, a serious offence (whether or not the identity of the person who committed the offence is known); or

(d) there are reasonable grounds to suspect that a person has committed a serious offence and has derived literary proceeds in relation to the offence.

(2) An application for an order under this section must specify the property to which the application relates.

(3) The DPP may submit evidence in support of the application in the form of an affidavit.

(4) Subject to subsection (5) and Division 3, the court must specify in the restraining order all property specified in the application for the order.

(5) The court may only specify property in a restraining order made under subsection (1)(a),(b) or (d) if satisfied that there are reasonable grounds to suspect that the property is—

(a) in the case of a restraining order made under subsection (1)(a) or (b)—

(i) property of the suspect; or

(ii) property of another person (whether or not that other person’s identity is known) that—

(A) is subject to the effective control of the suspect; or

(B) is proceeds of, or is an instrument of, the serious offence; or

(b) in the case of a restraining order made under subsection (1)(d)—

(i) property of the suspect; or

(ii) property of another person (whether or not that other person’s identity is known) that is subject to the effective control of the suspect.

(6) The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.

(7) The court may specify that a restraining order covers property that is acquired by the suspect after the court makes the order.

(8) A restraining order may be made subject to conditions.

25—Notice of application

(1) Subject to subsection (4), the DPP must—

(a) give written notice of an application for a restraining order covering property to—

(i) the owner of the property (if the owner is known); and

(ii) any other person the DPP reasonably believes may have an interest in the property; and

(b) include with the notice a copy of the application and—

(i) in the case of the owner—any affidavit supporting the application; or

(ii) in any other case—a notice that the person may request the DPP give the person a copy of any affidavit supporting the application.

(2) The DPP must comply with a request referred to in subsection (1)(b)(ii) as soon as practicable.

(3) Subject to subsection (4), a court must not hear an application unless it is satisfied that the owner of the property to which the application relates has received reasonable notice of the application.

(4) A court may, if the DPP requests, consider the application without notice having been given under subsection (1).

(5) A court may, at any time before finally determining the application—

(a) direct the DPP to give or publish notice of the application to a specified person or class of persons; and

(b) specify the time and manner in which the notice is to be given or published.

(6) A person who claims an interest in property may appear and adduce evidence at the hearing of the application.

(7) A witness who is giving evidence relating to an application for a restraining order is not required to answer a question or produce a document if the court is satisfied that the answer or document may prejudice the investigation of, or the prosecution of a person for, an offence.

26—Refusal to make an order for failure to give undertaking

(1) A court may refuse to make a restraining order if the Crown refuses or fails to give the court an appropriate undertaking with respect to the payment of damages or costs, or both, for the making and operation of the order.

(2) The DPP may give such an undertaking on behalf of the Crown.

27—Order allowing expenses to be paid out of restrained property

(1) A court that has made a restraining order may (when the restraining order is made or at a later time) order that one or more of the following may be met out of property, or a specified part of property, covered by the restraining order:

(a) the reasonable living expenses of the person whose property is restrained;

(b) the reasonable living expenses of any of the dependants of that person;

(d) a specified debt incurred in good faith by that person.

(2) The court may only make an order under subsection (1) if—

(a) the person whose property is restrained has applied for the order; and

(b) the person has notified the DPP, in writing, of the application and the grounds for the application; and

(c) the person has disclosed all of his or her interests in property, and his or her liabilities, in a statement on oath that has been filed in the court; and

(d) the court is satisfied that the expense or debt does not, or will not, relate to legal costs that the person has incurred, or will incur, in connection with—

(i) proceedings under this Act; or

(ii) proceedings for an offence against a law of the Commonwealth, a State or a Territory; and

(e) the court is satisfied that the person cannot meet the expense or debt out of property that is not covered by—

(i) a restraining order; or

(ii) a recognised Australian restraining order; or

(iii) a foreign restraining order that is registered under the Mutual Assistance Act.

(3) Property that is covered by—

(a) a restraining order; or

(b) a recognised Australian restraining order; or

is taken, for the purposes of subsection (2)(e), not to be covered by the order if it would not be reasonably practicable for the Administrator to take custody and control of the property.

28—Excluding property from or revoking restraining orders in certain cases when expenses are not allowed

(1) If—

(a) because of the operation of section 27(3), property that is covered by a restraining order is taken for the purposes of section 27(2)(e) not to be covered by the order; and

(b) as a result, and for no other reason, the court refuses an application to make an order under section 27(1),

the court may—

(d) if the property is the only property covered by the restraining order—revoke the restraining order.

(2) The court must not exclude the property or revoke the order unless satisfied that the property is needed to meet one or more of the following:

(a) the reasonable living expenses of the person whose property is restrained;

(b) the reasonable living expenses of any of the dependants of that person;

(d) a specified debt incurred in good faith by that person.

(3) If the court excludes the property from, or revokes, the restraining order, the DPP must give written notice of the exclusion or revocation to—

(a) the owner of the property (if the owner is known); and

(b) any other person the DPP reasonably believes may have an interest in the property,

however, the DPP need not give notice to the applicant for the order under section 27(1).

Division 5—Duration of restraining orders

42—When a restraining order comes into force

A restraining order is in force from the time it is made.

43—Application to revoke a restraining order

(1) A person who was not notified of the application for a restraining order may apply to the court that made the order to revoke the order—

(a) within 28 days after the person is notified that the order was made; or

(b) within such longer period (not exceeding 3 months after the person is notified that the order was made) as the court allows.

(2) The applicant must give written notice to the DPP and, if a person other than the DPP is appointed to act as the Administrator under this Act, the Administrator of the application and the grounds on which the revocation is sought.

(3) The court may revoke the restraining order if satisfied there are no grounds on which to make the restraining order at the time of considering an application under subsection (1).

(4) However, the restraining order remains in force until the court revokes the order.

(5) The DPP may adduce additional material to the court relating to the application to revoke the restraining order.

44—Giving security etc to revoke a restraining order

A court may revoke a restraining order that covers property if—

(a) in the case of a restraining order that covers the property of the suspect—

(i) the suspect applies to the court to revoke the order; and

(ii) the suspect gives written notice of the application to the DPP; and

(iii) the suspect gives security that is satisfactory to the court to meet any liability that may be imposed on the suspect under this Act; or

(b) in the case of a restraining order that covers the property of a person who is not the suspect—

(i) the person applies to the court to revoke the order; and

(ii) the person gives written notice of the application to the DPP; and

(iii) the person gives an undertaking concerning the person’s property that is satisfactory to the court.

45—Notice of revocation of a restraining order

If a restraining order is revoked under section 43 or 44, the DPP must give written notice of the revocation to—

(a) the owner of any property covered by the restraining order (if the owner is known); and

(b) any other person the DPP reasonably believes may have an interest in the property,

however, the DPP need not give notice to the applicant for the order.

46—Cessation of restraining orders

(1) A restraining order that relates to one or more serious offences ceases to be in force 28 days after—

(a) all charges that relate to the restraining order are withdrawn; or

(b) the suspect is acquitted of all serious offences with which the suspect was charged; or

unless—

(d) there is a confiscation order that relates to the serious offences; or

(e) there is an application for a confiscation order that relates to the serious offences before the court; or

(f) there is an application under—

(i) section 64; or

(ii) section 83; or

(iii) section 125,

for confirmation of a forfeiture, or a confiscation order, that relates to the serious offences; or

(g) the suspect is charged with a related offence.

(2) A restraining order relating to property ceases to be in force if, not more than 28 days after the order was made—

(a) the suspect has not been convicted of, or charged with, the serious offence, or at least one serious offence, to which the restraining order relates; and

(b) there is no confiscation order or application for a confiscation order that relates to the property.

(3) A restraining order ceases to be in force in respect of property covered by the restraining order if—

(a) one of the following occurs:

(i) the court refuses an application for a forfeiture order that would have covered the property and—

(A) the time for an appeal against the refusal has expired without an appeal being lodged; or

(B) an appeal against the refusal has lapsed; or

(ii) the court excludes the property from a forfeiture order;

(iii) a forfeiture order that covers the property is discharged or ceases to have effect;

(iv) the court excludes the property under section 76 from forfeiture under Part 4 Division 2; and

(b) no application is yet to be determined for—

(i) another confiscation order relating to a serious offence to which the restraining order relates; or

(ii) another confiscation order relating to a related offence; and

(4) A restraining order ceases to be in force to the extent that property that it covers vests absolutely in the Crown under Part 4 Division 2 or Division 3.

(5) A restraining order that relates to one or more serious offences ceases to be in force in respect of property covered by the restraining order if—

(a) a pecuniary penalty order or a literary proceeds order relates to the offence or offences; and

(b) one or more of the following occurs:

(i) the pecuniary penalty order or the literary proceeds order is satisfied;

(ii) the property is sold or disposed of to satisfy the pecuniary penalty order or literary proceeds order;

(iii) the pecuniary penalty order or the literary proceeds order is discharged or ceases to have effect.

(6) Despite subsection (1), if—

(a) a restraining order covers property of a person who is not a suspect; and

(b) the property is an instrument of, but is not proceeds of, a serious offence to which the order relates; and

the restraining order ceases to be in force in respect of that property if the suspect has not been charged with the serious offence or a related offence within 28 days after the restraining order is made.

Part 4—Forfeiture

Division 1—Forfeiture orders

Subdivision 1—Forfeiture orders

47—Forfeiture orders

(1) A court must, on application by the DPP, make an order (a forfeiture order) that property specified in the order is forfeited to the Crown if—

(a) a person has been convicted of one or more serious offences and the court is satisfied that the property to be specified in the order is proceeds of one or more of those offences; or

(b) the property to be specified in the order is covered by a restraining order made under section 24(1)(b) that has been in force for at least 6 months and the court is satisfied that the property is proceeds of one or more serious offences committed by the person whose conduct (or suspected conduct) formed the basis of the restraining order; or

(c) the property to be specified in the order is covered by a restraining order made under section 24(1)(c) that has been in force for at least 6 months and the court is satisfied that—

(i) the application for the order alleges that the property is proceeds of one or more serious offences; and

(ii) no application has been made under Part 3 Division 3 for the property to be excluded from the restraining order, or that any such application has been withdrawn; and

(iii) the DPP has taken reasonable steps to identify and notify persons with an interest in the property.

(2) For the purposes of making an order under subsection (1)(b) or (c)—

(a) a finding of the court under either of those paragraphs need not be based on a finding as to the commission of a particular serious offence; and

(b) the fact that a person has been acquitted of a serious offence with which the person has been charged, or the raising of a doubt as to whether a person engaged in conduct constituting a serious offence, does not affect the court’s power to make the order under either of those paragraphs in relation to the offence; and

(c) in relation to an order under subsection (1)(c)—a finding of the court under that paragraph need not be based on a finding that a particular person committed any offence.

(3) A court may, on application by the DPP, make an order (a forfeiture order) that property specified in the order is forfeited to the Crown, if—

(a) a person has been convicted of one or more serious offences the court is satisfied that the property is an instrument of one or more of the offences or is subject to an instrument substitution declaration under section 48; or

(b) the property to be specified in the order is covered by a restraining order made under section 24(1)(b) that has been in force for at least 6 months and the court is satisfied that the property is an instrument of one or more serious offences committed by the person whose conduct (or suspected conduct) formed the basis of the restraining order; or

(c) the property to be specified in the order is covered by a restraining order made under section 24(1)(c) that has been in force for at least 6 months and the court is satisfied that—

(i) the application for the order alleges that the property is an instrument of one or more serious offences; and

(ii) no application has been made under Part 3 Division 3 for the property to be excluded from the restraining order, or that any such application has been withdrawn; and

(iii) the DPP has taken reasonable steps to identify and notify persons with an interest in the property.

(4) In considering whether it is appropriate to make a forfeiture order under subsection (3) in respect of particular property, the court may have regard to—

(a) any hardship that may reasonably be expected to be caused to any person (other than the suspect) by the operation of the order; and

(b) the use that is ordinarily made, or was intended to be made, of the property; and

(d) any other matter the court thinks fit.

(5) If evidence is given, at the hearing of an application for a forfeiture order under this section that relates to a person's conviction for a serious offence, that property was in the possession of a person at the time at which, or immediately after, the person committed a serious offence to which the application relates—

(a) if no evidence is given that tends to show that the property was not used in, or in connection with, the commission of the offence—the court must presume that the property was used in, or in connection with, the commission of the offence; or

(b) in any other case—the court must not make a forfeiture order against the property unless it is satisfied that the property was used or intended to be used in, or in connection with, the commission of the offence.

(6) An application for a forfeiture order under this section that relates to a person's conviction for a serious offence must be made before the end of the period of 6 months after the conviction day.

(7) A court must not, if a person is taken under section 5(1)(d) to have been convicted of a serious offence, make a forfeiture order relating to the person’s conviction unless—

(a) the court is satisfied, on the balance of probabilities, that the person has absconded; and

(b) either—

(i) the person has been committed for trial for the offence; or

(ii) the court is satisfied, having regard to all the evidence before the court, that a reasonable jury, properly instructed, or the Magistrates Court (as the case requires) could lawfully find the person guilty of the offence.

48—Instrument substitution declarations

A court determining an application for a forfeiture order relating to a person's conviction of a serious offence may, on the application of the DPP, declare property to be subject to an instrument substitution declaration if satisfied that—

(a) the convicted person had, at the time of the offence, an interest in the property; and

(b) the property is of the same nature or description as property that was an instrument of the offence (whether or not the property is of the same value); and

(c) the property that was an instrument of the offence is not available for forfeiture or is not able to be made the subject of an order for forfeiture.

49—Additional application for a forfeiture order

(1) The DPP cannot, unless the court gives leave, apply for a forfeiture order under section 47 in relation to a serious offence if—

(a) an application has previously been made under that section for the forfeiture of the property in relation to the offence; and

(b) the application has been finally determined on the merits.

(2) The court must not give leave unless it is satisfied that—

(a) the property to which the new application relates was identified only after the first application was determined; or

(b) necessary evidence became available only after the first application was determined; or

(3) To avoid doubt, the DPP may apply for a forfeiture order against property in relation to a serious offence even though an application has previously been made for a pecuniary penalty order or a literary proceeds order in relation to the offence.

50—Notice of application

(1) The DPP must give written notice of an application for a forfeiture order—

(a) if the order is sought relating to a person’s conviction of a serious offence—to the person; and

(b) to any other person—

(i) who claims an interest in; or

(ii) who the DPP reasonably believes may have an interest in,

the property covered by the application.

(2) However, a court to which an application for a forfeiture order is made may, on the application of the DPP, dispense with the requirement to give notice to a person under subsection (1) if the court is satisfied that the person has absconded in connection with an offence.

(3) The court may, at any time before finally determining an application for a forfeiture order—

(a) direct the DPP to give or publish notice of the application to a specified person or class of persons; and

(b) specify the time and manner in which the notice is to be given or published.

51—Procedure on application

(1) A person who claims an interest in property covered by an application for a forfeiture order may appear and adduce evidence at the hearing of the application.

(2) If the application relates to a person’s conviction of a serious offence, a court may, in determining the application, have regard to—

(a) the transcript of any proceedings against the person for—

(i) that offence; or

(ii) if the person is taken to be convicted of the offence because of section 5(1)(c)—the other offence referred to in that paragraph; and

(b) any evidence given in the proceedings.

(3) The court may make a forfeiture order if a person entitled to be given notice of the relevant application fails to appear at the hearing of the application.

52—Amending an application

(1) The court hearing an application for a forfeiture order may, on the application or with the consent of the DPP, amend the application.

(2) However, the court must not amend the application to include additional property in the application unless—

(a) the court is satisfied that—

(i) the property was not reasonably capable of identification when the application was originally made; or

(ii) necessary evidence became available only after the application was originally made; or

(b) the forfeiture order applied for is an order to which section 47(1)(b) or (c) or (3)(b) or (c) applies and the court is satisfied that—

(i) including the additional property in the application for the order might have prejudiced the investigation of, or the prosecution of a person for, an offence; or

(ii) it is for any other reason appropriate to grant the application to amend.

(3) The DPP must, on applying for an amendment to include additional property in the application, give written notice of the application to amend to any person whom the DPP reasonably believes may have an interest in the additional property.

(4) However, the court may, on the application of the DPP, dispense with the requirement to give notice to a person under subsection (3) if the court is satisfied that the person has absconded in connection with an offence.

(5) If the forfeiture order applied for is an order to which section 47(1)(a) or (3)(a) applies, any person who claims an interest in that additional property may appear and adduce evidence at the hearing of the application to amend.

53—Forfeiture orders can extend to other interests in property

(1) A court may, in specifying an interest in property in a forfeiture order, specify any other interests in the property (regardless of whose they are) if—

(a) the amount received from disposing of the combined interests would be likely to be greater than the amount received from disposing of each of the interests separately; or

(b) disposing of the interests separately would be impracticable or significantly more difficult than disposing of the combined interests.

(2) If a court specifies other interests under subsection (1), the court may make such ancillary orders as it thinks fit for the protection of a person having one or more of those other interests.

(3) Without limiting the generality of subsection (2), an ancillary order may include—

(a) an order directing the Crown to pay the person a specified amount as the value of the person’s interest in the property; or

(b) an order directing that specified other interests in the property be transferred to the person.

(4) In deciding whether to make an ancillary order, the court must have regard to—

(a) the nature, extent and value of the person’s interest in the property concerned; and

(b) if the court is aware that any other person claims an interest in the property—the nature, extent and value of the interest; and

54—Forfeiture orders must specify the value of forfeited property

A court must specify the amount it considers to be the value, at the time the order is made, of the property (other than money) specified in the forfeiture order.

55—Declaration by court in relation to buying back interests in forfeited property

A court that makes a forfeiture order may, if satisfied that—

(a) it would not be contrary to the public interest for a person’s interest in the property to be transferred to the person; and

(b) there is no other reason why the person’s interest should not be transferred to the person,

by order—

(d) declare that the interest may be excluded under section 72 from the operation of the forfeiture order.

56—Court may make supporting directions

(1) A court that makes a forfeiture order may give any directions that are necessary or convenient for giving effect to the order.

(2) Without limiting the generality of subsection (1), a direction may, for a forfeiture order specifying registrable property, include a direction to an officer of the court to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.

Subdivision 2—Reducing the effect of forfeiture orders

57—Relieving certain dependants from hardship

(1) A court making a forfeiture order specifying a person’s property must make an order directing the Crown to pay a specified amount to a specified dependant, or dependants, of the person if—

(a) the forfeiture order is not one to which section 47(1)(a) applies; and

(b) the court is satisfied—

(i) the forfeiture order would cause hardship to the dependant; and

(ii) the specified amount would relieve that hardship; and

(iii) if the dependant is aged at least 18 years—the dependant had no knowledge (at the time of the conduct) of the person’s conduct that is the subject of the forfeiture order.

(2) The specified amount must not exceed the difference between—

(a) the amount the court considers likely to be received from disposing of the person’s property under the forfeiture order; and

(b) the amount the court considers likely to be the costs of administering this Act (referred to in section 209(1)) in connection with the forfeiture order.

58—Making exclusion orders before forfeiture order made

(1) A court that is hearing, or is to hear, an application for a forfeiture order, must make an order excluding property from forfeiture (an exclusion order) if—

(a) a person applies for the exclusion order in accordance with section 60; and

(b) the application for a forfeiture order specifies the applicant’s property; and

(i) the applicant was not involved in the commission of a serious offence to which the application for a forfeiture order relates; and

(ii) the property to be specified in the exclusion order is neither proceeds nor an instrument of the offence; and

(d) if the forfeiture order would be one to which section 47(1)(b) or (c) or (3)(b) or (c) applies, the court is satisfied that the property to be specified in the exclusion order is neither proceeds nor an instrument of unlawful activity.

(2) An exclusion order under subsection (1) must—

(a) specify the nature, extent and value (at the time of making the order) of the property concerned; and

(b) direct that the property be excluded from the operation of the forfeiture order.

(3) An applicant for an exclusion order under subsection (1) must give written notice to the DPP of the application and the grounds on which the order is sought.

(4) The DPP—

(a) may appear and adduce evidence at the hearing of the application; and

(b) must give the applicant notice of any grounds on which it proposes to contest the application.

(5) However, the DPP need not give notice under subsection (4)(b) until it has had a reasonable opportunity to examine the applicant under Part 6 Division 1.

(6) An application for an exclusion order under subsection (1) must not be heard until the DPP has had a reasonable opportunity to examine the applicant under Part 6 Division 1.

59—Making exclusion orders after forfeiture

(1) A court that made a forfeiture order must make an order excluding property from forfeiture (an exclusion order) if—

(a) a person applies for the exclusion order in accordance with section 60; and

(b) the forfeiture order specifies the applicant’s property; and

(i) the applicant was not involved in the commission of a serious offence to which the forfeiture order relates; and

(ii) the property to be specified in the exclusion order is neither proceeds nor an instrument of the offence; and

(d) if the forfeiture order was one to which section 47(1)(b) or (c) or (3)(b) or (c) applies, the court is satisfied that the property to be specified in the exclusion order is neither proceeds nor an instrument of unlawful activity.

(2) An exclusion order under subsection (1) must—

(a) specify the nature, extent and value (at the time of making the order) of the property concerned; and

(b) direct that the property be excluded from the operation of the forfeiture order; and

(c) if the property has vested (in law or equity) in the Crown under this Division and is yet to be disposed of—direct the Crown to transfer the property to the applicant; and

(d) if the property has vested (in law or equity) in the Crown under this Division and has been disposed of—direct the Crown to pay the applicant an amount equal to the value specified under paragraph (a).

(3) An applicant for an exclusion order under subsection (1) must give written notice to the DPP of the application and the grounds on which the order is sought.

(4) The DPP—

(a) may appear and adduce evidence at the hearing of the application; and

(b) must give the applicant notice of any grounds on which it proposes to contest the application.

(5) However, the DPP need not give notice under subsection (4)(b) until it has had a reasonable opportunity to examine the applicant under Part 6 Division 1.

(6) An application for an exclusion order under subsection (1) must not be heard until the DPP has had a reasonable opportunity to examine the applicant under Part 6 Division 1.

60—Applying for exclusion orders

(1) A person may apply for an exclusion order if a forfeiture order that could specify the person’s property has been applied for, but is yet to be made.

(2) A person cannot, except with leave of the court, apply for an exclusion order after a forfeiture order specifying the person’s property has been made if—

(a) the person—

(i) appeared at the hearing of that application; or

(ii) was given notice of the application for the forfeiture order, but did not appear at the hearing of that application; or

(b) 6 months have elapsed since the forfeiture order was made.

(3) The court may only give leave to apply under subsection (2) if satisfied that—

(a) if subsection (2)(a)(i) applies—the person now has evidence relevant to the person’s application that was not available to the person at the time of the hearing; or

(b) if subsection (2)(a)(ii) applies—the person had a good reason for not appearing; or

(d) in any case—there are special grounds for giving the leave.

61—Making compensation orders

(1) A court that made a forfeiture order must make an order (a compensation order) if—

(a) a person has applied for the compensation order; and

(b) the forfeiture order specifies the applicant’s property as proceeds of a serious offence to which the forfeiture order relates; and

(c) the court is satisfied that, when the property first became proceeds of the serious offence, a proportion of the value of the property was not acquired using the proceeds of any unlawful activity.

(2) A compensation order must—

(a) specify the proportion of the value of the property not acquired using the proceeds of any offence referred to in subsection (1)(c); and

(b) direct the Crown to—

(i) if the property has not been disposed of—dispose of the property; and

(ii) pay the applicant an amount equal to that proportion of the difference between the amount received from disposing of the property and the total of any costs of administering this Act (of a kind referred to in section 209(1)) in connection with the forfeiture order.

(3) An applicant for a compensation order must give written notice to the DPP of the application and the grounds on which the order is sought.

(4) The DPP—

(a) may appear and adduce evidence at the hearing of the application; and

(b) must give the applicant notice of any grounds on which it proposes to contest the application.

62—Applying for compensation orders

(1) Subject to this section, a person whose property is specified in a forfeiture order may apply for a compensation order.

(2) If a person was given notice of an application for a forfeiture order, the person cannot apply for a compensation order relating to that forfeiture order unless—

(a) the person applies for the compensation order within 6 months after the forfeiture order was made; and

(b) the court gives leave.

(3) If a person was not given notice of an application for a forfeiture order, the person cannot apply for a compensation order relating to a forfeiture order unless—

(a) the person applies for the compensation order within 6 months after the forfeiture order was made; or

(b) the court gives leave.

Subdivision 3—The effect of acquittals and quashing of convictions

63—Certain forfeiture orders unaffected by acquittal or quashing of conviction

A forfeiture order made under section 47(1)(b) or (c) or (3)(b) or (c) against a person in relation to a serious offence is not affected if—

(a) having been charged with the offence, the person is acquitted; or

(b) the person is convicted of the offence and the conviction is subsequently quashed.

64—Discharge of conviction based forfeiture order on quashing of conviction

(1) A forfeiture order made under section 47(1)(a) or (3)(a) in relation to a person’s conviction of a serious offence is discharged if—

(a) the person’s conviction of the offence is subsequently quashed (whether or not the order relates to the person’s conviction of other offences that have not been quashed); and

(b) the DPP does not, within 14 days after the conviction is quashed, apply to the court that made the order for the order to be confirmed.

(2) However, unless a court decides otherwise on an application under subsection (1), the quashing of the conviction does not affect the forfeiture order—

(a) for 14 days after the conviction is quashed; or

(b) if the DPP makes an application under subsection (1).

65—Notice of application for confirmation of forfeiture order

(1) The DPP must give written notice of an application for confirmation of the forfeiture order to—

(a) the person whose conviction was quashed; and

(b) any person—

(i) who claims, or prior to the forfeiture claimed, an interest in property covered by the forfeiture order; and

(ii) whom the DPP reasonably believes may have had an interest in property covered by the forfeiture order before the forfeiture.

(2) The court may, at any time before finally determining the application—

(a) direct the DPP to give or publish notice of the application to a specified person or class of persons; and

(b) specify the time and manner in which the notice is to be given or published.

66—Procedure on application for confirmation of forfeiture order

(1) A person who claims an interest in property covered by the forfeiture order may appear and adduce evidence at the hearing of the application for confirmation of the order.

(2) A court may, in determining the application, have regard to—

(a) the transcript of any proceeding against the person for—

(i) the serious offence of which the person was convicted; or

(ii) if the person was taken to be convicted of the offence because of section 5(1)(c)—the other offence referred to in that paragraph,

South Australian Bills

CRIMINAL ASSETS CONFISCATION BILL 2004