CRIMINAL ASSETS CONFISCATION ACT 2005 - SECT 3
CRIMINAL ASSETS CONFISCATION ACT 2005 - SECT 3
(1) 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;
"conviction offence", in relation to a prescribed drug offender, has the
meaning given in section 6A;
"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
(c)
subject to section 14, the Magistrates Court;
"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
(c)
receiving or making a gift of the property; 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 or domestic partner of the person; or
(b) a
child of the person who depends on the person for support; or
(c) a
member of the person's household who depends on the person for support;
"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;
"domestic partner" means a person who is a domestic partner within the meaning
of the Family Relationships Act 1975 , whether declared as such under
that Act or not;
"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 controlled drug 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 or 59;
"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;
"financial institution" means—
(a) an
ADI; or
(b) a
friendly society; or
(c) an
institution of a kind declared by regulation to be a financial institution;
"foreign forfeiture order" has the same meaning as in the Mutual Assistance
Act;
"foreign offence" includes an offence against international law;
"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;
"prescribed drug offender"—see section 6A;
"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
"property-tracking document"—see section 149;
"protected property" of a person means property owned by or subject to the
effective control of the person that is of a class declared by regulation for
the purposes of this definition;
"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 and organised crime" has the same meaning as in the
Australian Crime Commission (South Australia) Act 2004 ;
"serious offence" means—
(a) an
indictable offence; or
(c) an
offence against—
(i)
section 68(3) of the
Criminal Law Consolidation Act 1935 ; or
(ii)
an offence against section 52, 53, 72 or 74 of the
Fisheries Management Act 2007 ; 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) or 41 of the
Summary Offences Act 1953 ; or
(d) a
foreign offence declared by the regulations to be within the ambit of this
definition;
"spouse"—a person is the spouse of another if they are legally married;
"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
(c) if
the order is a restraining order—is suspected of having committed; 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; or
(c)
property owned by, or subject to the effective control of, a
prescribed drug offender on the conviction day for the conviction offence
(other than protected property of the prescribed drug offender); or
(d)
property owned by, or subject to the effective control of, a person who has
been charged with, or is proposed to be charged with, an offence where the
person would, if convicted of the offence, become a prescribed drug offender
(other than protected property of the person);
"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 .
(2) A reference in
this Act to an "indictable offence" includes an indictable offence of a kind
that is required to be prosecuted, and dealt with by the Magistrates Court, as
a summary offence under a provision of any Act.