Confiscation of Proceeds of Crime Act 1989 (NSW)

Confiscation of Proceeds of Crime Act 1989 No 90 An Act to provide for the confiscation of the profits of crime and the forfeiture of property in certain circumstances; to provide for the reciprocal enforcement of certain Australian legislation relating to the confiscation of the profits of crime and the forfeiture of property; to repeal the Crimes (Confiscation of Profits) Act 1985; and for connected purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Confiscation of Proceeds of Crime Act 1989. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Principal objects The principal objects of this Act are— (a) to deprive persons of the proceeds of, and benefits derived from, the commission of offences against certain laws of the State, and (b) to provide for the forfeiture of property used in or in connection with the commission of such offences or substitutable tainted property, and (c) to enable law enforcement authorities effectively to trace such proceeds, benefits and property, and (d) to provide for the enforcement in the State of forfeiture orders, pecuniary penalty orders and restraining orders made in respect of offences against the laws of other States. 4 Definitions (1) In this Act— account means a facility or arrangement through which a financial institution accepts deposits or allows withdrawals, and includes a facility or arrangement for the following— (a) a fixed term deposit or safety deposit box, (b) the deposit or withdrawal of, or a transaction involving, digital currency, including a registrable digital currency exchange service. agent includes, if the agent is a corporation, the officers and agents of the corporation. appeal includes a proceeding in the nature of an appeal. appropriate court means— (a) the Supreme Court, or (b) for a freezing notice—the court in which proceedings, including committal proceedings, for a serious offence on which the freezing notice is based are held, or (c) otherwise—the court in which a person is convicted of a drug trafficking offence, a serious offence or a serious drug offence. appropriate officer means— (a) in any case—the Director of Public Prosecutions or Chief Commissioner of the Law Enforcement Conduct Commission, or (b) in relation to restraining orders or freezing notices—the Commissioner for the Independent Commission Against Corruption, or (c) in relation to a function exercised before or in relation to the Local Court (other than a function under Division 2 of Part 3)—the Commissioner of Police, or (d) in relation to a function prescribed for the purposes of this paragraph by the regulations—a person so prescribed or a person of a class or description so prescribed. approved means approved by the Minister in writing for the purposes of the provision in which the term occurs. authorised officer means— (a) a member of the Police Force, or (b) a person authorised in writing by the Minister either generally or in a special case to act as an authorised officer for the purposes of section 43 (restraining orders), Division 1A of Part 3 or Part 4. benefit includes service and advantage. confiscation order means a forfeiture order, pecuniary penalty order or drug proceeds order. corresponding law means a law of another State that is for the time being declared by the regulations to be a law that corresponds to this Act. Customs Act means the Customs Act 1901 of the Commonwealth. Customs officer means an officer of Customs within the meaning of the Customs Act. digital currency has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth. director, in relation to a financial institution or corporation, includes— (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. drug proceeds order means an order made under section 29. drug trafficker declaration has the same meaning as in section 34(1). drug trafficking means any act constituting a drug trafficking offence. drug trafficking offence means an offence under section 24A (possession of precursors for manufacture or production of prohibited drugs) or 25A (offence of supplying prohibited drugs on an ongoing basis) of the Drug Misuse and Trafficking Act 1985 or an offence, involving more than a small quantity of a prohibited plant or prohibited drug within the meaning of that Act, under any of the following sections of that Act— (a) section 23 (offences with respect to prohibited plants), (a1) section 23A (offences with respect to enhanced indoor cultivation of prohibited plants in presence of children), (b) section 24 (manufacture and production of prohibited drugs), (c) section 25 (supply of prohibited drugs), (d) section 26 (conspiring), (e) section 27 (aiding, abetting etc commission of offence in New South Wales), (f) section 28 (conspiring to commit and aiding etc commission of offence outside New South Wales). encumbrance, in relation to property, includes any interest, mortgage, charge, right, claim and demand in respect of the property. executive officer, in relation to a financial institution or a corporation, means any person, by whatever name called and whether or not he or she is a director of the institution or corporation, who is concerned, or takes part, in the management of the institution or corporation. facsimile includes a reference to any electronic communication device which transmits information in a form from which written material is capable of being reproduced with or without the aid of any other device or article. facsimile copy means a copy obtained by facsimile transmission. financial institution means the following, and includes a registrable digital currency exchange service— (a) an authorised deposit-taking institution, (b) a body corporate that is, or if it had been incorporated in Australia would be, a financial corporation within the meaning of the Commonwealth Constitution, section 51(xx). fixed term deposit means an interest bearing deposit lodged for a fixed period. forfeiture order means an order made under section 18 or 34A. freezing notice means a notice issued under section 42C. interest, in relation to property, means— (a) a legal or equitable estate or interest in the property, or (b) a right, power or privilege in connection with the property, whether present or future and whether vested or contingent. interstate crime related property declaration means a declaration or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition. interstate forfeiture order means an order or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition. interstate pecuniary penalty order means an order or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition. interstate restraining order means an order or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition. interstate serious offence means an offence (including a common law offence, where relevant) against the laws of another State, being an offence in relation to which an interstate forfeiture order or interstate pecuniary penalty order may be made under a corresponding law of that State. monitoring order means an order made under section 69. officer means a director, secretary, executive officer or employee. pecuniary penalty order means an order made under section 24. penalty amount means— (a) in relation to a forfeiture order made against a person, the amount specified in relation to the forfeiture order under section 21 (2), or (b) in relation to a pecuniary penalty order made against a person, the amount that the person is, under the pecuniary penalty order, liable to pay to the State, or (c) in relation to a drug proceeds order made against a person, the amount that the person is, under the drug proceeds order, liable to pay to the State. premises includes any structure, building, aircraft, vehicle, vessel and place (whether built on or not) and any part thereof. prescribed authority means— (a) the Commissioner of Police, or (b) the New South Wales Crime Commission, or (c) the Independent Commission Against Corruption, or (d) the Corporate Affairs Commission, or (e) the Law Enforcement Conduct Commission, or (f) any other authority or person responsible for the enforcement of the laws of the Commonwealth or of a State or Territory prescribed for the purposes of this definition. proceeds, in relation to a serious offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence. production order means an order made under section 59. property includes real and personal property and any estate or interest in real or personal property, and money, and any debt, and any cause of action for damages (including damages for personal injury), and any other chose in action, and any other right or interest. property-tracking document, in relation to a serious offence, means— (a) a document relevant to— (i) identifying, locating or determining property of a person who committed the offence, or (ii) identifying or locating any document necessary for the transfer of property of a person who committed the offence, or (b) a document relevant to— (i) identifying, locating or determining tainted property in relation to the offence, or (ii) identifying or locating any document necessary for the transfer of tainted property in relation to the offence. public promotion means any of the following— (a) a film, slide, video tape or any other form of recording from which a visual image can be produced, (b) a record, tape, compact disk or any other form of recording from which words or sounds can be produced, (c) a book, newspaper, magazine or other written or pictorial matter, (d) a radio or television production, (e) a publication of matter on the Internet, (f) a live entertainment of any kind. registrable digital currency exchange service has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth. relevant offence, in relation to tainted property, means an offence by reason of the commission of which the property is tainted property. relevant period, in relation to the conviction of a person for a serious offence, means the period of 6 months after— (a) where the person is to be taken to have been convicted of the offence because of section 5 (1) (a)—the day on which the person was sentenced for the offence, or (b) where the person is to be taken to have been convicted of the offence because of section 5 (1) (b)—the day on which the order in relation to the offence was made under section 10 of the Crimes (Sentencing Procedure) Act 1999, or (c) where the person is to be taken to have been convicted of the offence because of section 5 (1) (c)—the day on which the court took the offence into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999, or (d) where the person is to be taken to have been convicted of the offence because of section 5 (1) (d)—the day on which the person is taken to have absconded under section 6. restraining order means an order made under section 43 or 43A. State, when not used in a geographical sense, means the Crown in right of New South Wales, and (except in relation to the payment of money to the State) includes a State authority. State authority means a Minister of the Crown, a statutory body representing the Crown, a member of the Police Force or a person or body prescribed by the regulations for the purposes of this definition or of a class or description so prescribed. substitutable tainted property means any property or any interest in property that is capable of being the subject of a substituted tainted property declaration in relation to the serious offence concerned. substituted tainted property declaration means a declaration under section 33. tainted property means property that— (a) was used in, or in connection with, the commission of a serious offence, or (b) was substantially derived or realised, directly or indirectly, by any person, from property used in, or in connection with, the commission of a serious offence, or (c) was substantially derived or realised, directly or indirectly, by any person, as a result of the commission of a serious offence, or (d) was substantially derived or realised, directly or indirectly, by any person for the depiction of a serious offence, or the expression of the offender's thoughts, opinions or emotions regarding the offence, in any public promotion. telephone includes radio, facsimile and any other communication device. unlawfully acquired has the same meaning as in section 34A(7). unlawful activity means an act or omission that constitutes an offence against a law in force in the Commonwealth, a State or a Territory. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) A reference in this Act to a person being charged with an offence is a reference to a person being issued with a court attendance notice or being a person against whom an information has been laid. (3) A reference in this Act to a benefit derived by a person includes a reference to— (a) a benefit derived, directly or indirectly, by the person, and (b) a benefit derived, directly or indirectly, by another person at the request or direction of the first person. (4) A reference in this Act to the property of a person includes a reference to property in respect of which the person has a beneficial interest. (5) A reference in this Act to acquiring property, or an interest in property, for sufficient consideration is a reference to acquiring the property, or the interest, for a consideration that is sufficient and that, having regard solely to commercial considerations, reflects the value of the property, or the interest. (6) For the purposes of this Act, a person shall not be regarded as being a director of a financial institution or corporation within the meaning of paragraph (c) of the definition of director in subsection (1) only because the directors act on advice given by that person in the proper performance of the functions attaching— (a) to his or her professional capacity, or (b) to his or her business relationship with the directors of the financial institution or corporation. (7) In this Act— (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty. (8) For the purposes of this Act, the Northern Territory and the Australian Capital Territory are regarded as States. (9) For the purposes of this Act, the value of property (other than cash) in relation to any person holding the property— (a) if any other person holds an interest in the property, is the market value of the first-mentioned person's beneficial interest in the property (less the amount required to discharge any encumbrance, other than a forfeiture order, on that interest), and (b) in any other case, is its market value. (10) Notes included in this Act do not form part of this Act. 5 Meaning of "conviction of serious offence" (1) For the purposes of this Act, a person shall be taken to have been convicted of a serious offence if— (a) the person has been convicted, whether summarily or on indictment, of the offence by a court, or (b) the person has been charged with the offence and the court hearing the charge has made an order in relation to the offence under section 10 of the Crimes (Sentencing Procedure) Act 1999, or (c) the person has been sentenced for another offence and the court has, in passing sentence on the person, taken the offence into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999, or (d) the person has been charged with the offence and, at any time before the determination of the charge, the person has absconded. (2) If, by virtue of subsection (1), a person is to be taken to have been convicted of a serious offence, then, for the purposes of this Act— (a) the person shall, in a case to which paragraph (a) or (b) of that subsection applies, be taken to have been so convicted by the court referred to in the relevant paragraph, and (b) the conviction shall be taken to have been quashed— (i) if the person is to be taken to have been convicted of the offence because of subsection (1) (a)—when the conviction is quashed or set aside, or (ii) if the person is to be taken to have been convicted of the offence because of subsection (1) (b)—when the order made under section 10 of the Crimes (Sentencing Procedure) Act 1999 is quashed or set aside, or (iii) if the person is to be taken to have been convicted of the offence because of subsection (1) (c)—when the decision of the court under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 is quashed or set aside, or (iv) if the person is to be taken to have been convicted of the offence because of subsection (1) (d)—when, after the person is subsequently brought before a court in respect of the offence with which the person was charged, the person is discharged in respect of the offence or the conviction for the offence is quashed or set aside. (3) For the purposes of this Act, where an information has been laid alleging the commission of a serious offence by a person, the person shall be taken to have been charged with the offence (but nothing in this subsection limits any other way in which a person is to be taken to be charged with an offence). 6 Meaning of "absconding" (1) For the purposes of this Act, a person shall be taken to have absconded if and only if— (a) a court attendance notice or information has been filed or laid alleging the commission of a serious offence by the person, and (b) a warrant for the arrest of the person has been issued in relation to that information or notice, and (c) reasonable attempts to locate the person pursuant to the warrant have been unsuccessful during the period of 6 months commencing on the day the warrant was issued, and the person shall be taken to have so absconded on the last day of that period of 6 months. (2) A reference in this Act, in relation to the conviction of a person for a serious offence, to the commission of the offence shall, where the person is to be taken to have been convicted of the offence because of section 5 (1) (d), be read as a reference to the alleged commission of the offence by the person. 7 Meaning of "serious offence" and "serious drug offence" In this Act— serious drug offence means— (a) an offence referred to (before the commencement of the Drug Misuse and Trafficking Act 1985) in section 45A of the Poisons Act 1966— (i) of supplying any drug of addiction or prohibited drug within the meaning of that Act, or (ii) of cultivating, supplying or possessing any prohibited plant within the meaning of that Act, or (iii) of permitting any premises, as owner, occupier or lessee of the premises, to be used for the purpose of the cultivation or supply of any prohibited plant within the meaning of that Act or of being concerned in the management of any such premises, or (b) a drug trafficking offence, or (c) a prescribed offence involving drugs or an offence of a prescribed kind involving drugs, or (d) an offence, which involves theft, fraud, obtaining financial benefit by vice engaged in by others, extortion, violence, bribery, corruption or harbouring criminals, committed in connection with an offence referred to in paragraph (a), (b) or (c), or (e) an offence under section 193B (money laundering) or 193D (dealing with property that subsequently becomes an instrument of crime) of the Crimes Act 1900 in relation to the proceeds of an offence, or an offence, referred to in paragraph (a), (b), (c) or (d), or (f) an offence of attempting to commit, or of conspiracy or incitement to commit, an offence referred to in paragraph (a), (b), (c), (d) or (e). serious offence means— (a) an offence (including a common law offence) against the laws of New South Wales, being an offence that may be prosecuted on indictment, or (b) the offence of supplying any restricted substance prescribed for the purposes of section 16 of the Poisons and Therapeutic Goods Act 1966 that arises under section 18A (1) of that Act, or (c) an offence prescribed for the purposes of this paragraph by the regulations or an offence of a kind so prescribed. 8 Related offences For the purposes of this Act, 2 offences are related to one another if the elements of the 2 offences are substantially the same acts or omissions. 9 Meaning of "dealing with property" For the purposes of this Act, dealing with property of a person includes— (a) if a debt is owed to that person—making a payment to any person in reduction of the amount of the debt, and (b) removing the property from New South Wales, and (c) receiving or making a gift of the property. 10 Effective control of property (1) Property, or an interest in property, may be subject to the effective control of a person within the meaning of this Act whether or not the person has— (a) a legal or equitable estate or interest in the property, or (b) a right, power or privilege in connection with the property. (2) In determining— (a) whether or not property, or an interest in property, is subject to the effective control of a person, or (b) whether or not there are reasonable grounds to believe that property, or an interest in property, is subject to the effective control of a person, regard may be had to— (c) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property, and (d) a trust that has a relationship to the property, and (e) family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (c) or trusts of the kind referred to in paragraph (d), and other persons. 11 Act to bind Crown (1) This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities. (2) Nothing in this Act renders the Crown liable to be prosecuted for an offence. 12 Application (1) Parts 2 and 3 do not apply to a person's conviction of an offence if the person was convicted of the offence before the commencement of those Parts. (2) Subsection (1) does not apply in relation to interstate forfeiture orders, interstate pecuniary penalty orders or interstate restraining orders. (3) Subject to subsection (1), this Act applies to— (a) an offence committed, or believed to have been committed, at any time (whether before or after the commencement of this section), and (b) a person's conviction of an offence at any time (whether before or after the commencement of this section). (4) This section is subject to Schedule 1. Part 2 Confiscation Division 1 Applications for confiscation orders 13 Applications for confiscation orders (1) If a person is convicted of a serious offence other than a drug trafficking offence, an appropriate officer may apply to an appropriate court for one or both of the following orders— (a) a forfeiture order against property that is tainted property or substitutable tainted property in respect of the offence, (b) a pecuniary penalty order against the person in respect of benefits derived by the person from the commission of the offence. (2) If a person is convicted of a drug trafficking offence, an appropriate officer may apply to an appropriate court for one or both of the following orders— (a) a forfeiture order against property that is tainted property or substitutable tainted property in respect of any drug trafficking offences, (b) a drug proceeds order against the person in respect of benefits derived by the person from the commission of any drug trafficking offences. (3) An application must be made before the end of the relevant period in relation to the conviction, except with the leave of the Supreme Court. (3A) The Supreme Court must not grant leave under subsection (3) unless— (a) the property or benefit to which the application relates is— (i) property of the kind referred to in paragraph (d) of the definition of tainted property in section 4 (1), or (ii) a benefit of the kind referred to in section 25 (2) (a1) or 30 (1) (b), and (b) the Court is satisfied that— (i) the property or benefit was derived, realised or identified only after the end of the relevant period, or (ii) necessary evidence became available only after the end of that period, or (iii) it is otherwise in the interests of justice to do so. (4) An application may be made under subsection (1) (b) in relation to one or more serious offences. (5) If an application under subsection (1) or subsection (2) has been finally determined, no further application may be made under that subsection in relation to the same conviction, except with the leave of the Supreme Court or in such circumstances as are prescribed. (6) The Supreme Court shall not grant leave unless satisfied that— (a) the tainted property or substitutable tainted property, or the benefit, 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 (c) the Court is otherwise satisfied that it is in the interests of justice to grant the leave. (7) Section 34A prevails over this section to the extent of an inconsistency. 14 Notice of applications (1) If an appropriate officer applies for a forfeiture order against property in respect of a person's conviction of a serious offence— (a) the appropriate officer shall give written notice of the application to the person and to any other person the appropriate officer has reason to believe may have an interest in the property, and (b) the person, and any other person who claims an interest in the property, may appear and adduce evidence at the hearing of the application, and (c) the court may, at any time before the final determination of the application, direct the appropriate officer to give or publish notice of the application to a specified person or class of persons, in the manner and within the time that the court considers appropriate. (2) If an appropriate officer applies for a pecuniary penalty order or drug proceeds order against a person— (a) the appropriate officer shall give the person written notice of the application, and (b) the person may appear and adduce evidence at the hearing of the application. 15 Amendment of applications (1) A court may, at any time before the final determination of an application for a confiscation order made to it and whether or not the period for making such an application has expired, amend the application as it thinks fit, either at the request of the appropriate officer who made the application or with the approval of the appropriate officer. (2) The court shall not amend the application so as to— (a) include additional property in an application for a forfeiture order, or (b) include an additional benefit in an application for a pecuniary penalty order or drug proceeds order, unless the court is satisfied that— (c) the property or benefit was not reasonably capable of identification when the application was originally made, or (d) necessary evidence became available only after the application was originally made. (3) If the amendment of an application for a forfeiture order would have the effect of including additional property in the application for the forfeiture order, the applicant for the amendment shall give written notice of the application to amend to any person who the applicant has reason to believe may have an interest in the property to be included in the application for the forfeiture order. (4) Any person who claims an interest in the property to be included in the application for the forfeiture order may appear and adduce evidence at the hearing of the application to amend. (5) If the amendment of an application for a pecuniary penalty order or drug proceeds order against a person would have the effect of including an additional benefit in the application for the pecuniary penalty order or drug proceeds order, the applicant shall give the person written notice of the application to amend. 16 Making of confiscation orders if person has absconded If a person is, because of section 5 (1) (d), to be taken to have been convicted of a serious offence, a court shall not make a confiscation order in reliance on the person's conviction of the offence unless the court is satisfied, on the balance of probabilities, that the person has absconded and— (a) the person has been committed for trial for the offence, or (b) the court is satisfied, having regard to all the evidence before the court, that a reasonable jury, properly instructed, could lawfully find the person guilty of the offence. 17 Procedure on applications (1) If an application is made to a court for a confiscation order in respect of a person's conviction of a serious offence, the court may, in determining the application, have regard to the transcript of any proceedings against the person for the serious offence. (2) If— (a) a person is to be taken to have been convicted of a serious offence because of section 5 (1) (c), and (b) an application is made to a court for a confiscation order in respect of the conviction, the reference in subsection (1) to proceedings against the person for the serious offence includes a re