Crime (Confiscation of Profits) Act 1993 (Tas)

Crime (Confiscation of Profits) Act 1993 An Act to provide for the confiscation of the proceeds of crime and the forfeiture of property in certain circumstances, for the reciprocal enforcement of certain Australian legislation relating to the confiscation of the proceeds of crime and the forfeiture of property and for related purposes [Royal Assent 3 June 1993] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Crime (Confiscation of Profits) Act 1993 . 2. Commencement This Act commences on a day to be proclaimed. 3. Act to bind Crown (1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. (2) Nothing in this Act renders the Crown, in any of its capacities, liable to be prosecuted for an offence. 4. Interpretation (1) In this Act, unless the contrary intention appears – account means a facility or arrangement through which a financial institution accepts deposits or allows withdrawals, including a facility or arrangement for – (a) a fixed term deposit; or (b) a safety deposit box; agent includes, if the agent is a corporation, the officers and agents of the corporation; authorized officer means – (a) in any case– the DPP or an Australian legal practitioner, acting on behalf of the DPP; or (b) in relation to a function exercised before or in relation to a court of summary jurisdiction – the Commissioner or a police officer; benefit includes service or advantage; commencement day means the day proclaimed under section 2 ; commercial benefit – see section 4B ; commercial exploitation includes exploitation by any of the following means: (a) publishing any material in written or electronic form; (b) the use of media from which visual images, words or sounds can be produced; (c) any live entertainment, representation or interview; Commissioner means the Commissioner of Police; confiscation order means a forfeiture order or a pecuniary penalty order; corresponding law means a law of another State that is declared by the regulations to be a law that corresponds to this Act; court of summary jurisdiction means a court constituted by a magistrate; Crime (Confiscation of Profits) Account means the account of that name established under section 79 ; 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 under a law of Tasmania, another State or the Commonwealth – 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 authorized 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; DPP means the person for the time being holding, or acting in, the office of the Director of Public Prosecutions established by section 3(1) of the Director of Public Prosecutions Act 1973 ; encumbrance, in relation to property, includes an interest or a mortgage, charge, right, claim or demand in respect of the property; executive officer, in relation to a financial institution or corporation, means a person, by whatever name called and whether or not the person is a director of the institution or corporation, who is concerned with or takes part in the management of the institution or corporation; facsimile copy means a copy obtained by facsimile transmission; financial institution means – (a) the Reserve Bank of Australia; or (b) an authorised deposit-taking institution; or (d) a body corporate that is, or had it been incorporated in Australia would be, a financial corporation within the meaning of section 51 (xx) of the Constitution of the Commonwealth; fixed term deposit means an interest bearing deposit lodged for a fixed period; forfeiture order means an order under section 16 (1) ; instrument of crime means property that is used in the commission of, in connection with, or to facilitate the commission of, a serious offence; interest, in relation to property, means – (a) a legal or equitable estate or interest in the property; or (b) a right, power or privilege over, or in connection with, the property – whether present or future and whether vested or contingent; interstate 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; interstate 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; interstate 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; interstate serious offence means an offence against a law of another State in relation to which an interstate forfeiture order or interstate pecuniary penalty order may be made under a corresponding law of that State; land has the same meaning as in the Land Titles Act 1980 ; literary proceeds – see section 4C ; oath means oath or affirmation; offence means an offence against a law of Tasmania; officer means a director, secretary, executive officer or employee; pecuniary penalty order means an order under section 21 (1) ; 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 16 (4) ; 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; premises includes – (a) land, whether or not covered by buildings; and (b) any structure, whether or not attached to land; and (c) a means of transport; proceeds, in relation to an offence, means property that is derived or realized, directly or indirectly, by any person from the commission of the offence; proceeds of crime means proceeds of a serious offence; production order means an order under section 49 (5) ; property means real or personal property of every description, wherever situated and whether tangible or intangible, including an interest in such property; property-tracking document – see section 4A ; Public Trustee means The Public Trustee; regulations means regulations made and in force under this Act; relevant application period, in relation to a person's conviction of a serious offence, means – (a) in the case of a person who is taken to have been convicted of the offence by reason of section 5 (1) (a) – the period of 6 months immediately following the day on which the person was convicted of the offence; or (b) in the case of a person who is taken to have been convicted of the offence by reason of section 5 (1) (b) – the period of 6 months immediately following the day on which the person was discharged without conviction; or (c) in the case of a person who is taken to have been convicted of the offence by reason of section 5 (1) (c) – the period of 6 months immediately following the day on which the court took the offence into account in passing sentence for the other offence referred to in that section; or (d) in the case of a person who is taken to have been convicted of the offence by reason of section 5 (1) (d) – the period of 6 months immediately following the day on which the person is to be taken to have absconded in connection with the offence; restraining order means an order under section 26 (2) ; serious offence means – (a) an offence against a law of Tasmania which may be dealt with as an indictable offence even though it may, in some circumstances, be dealt with summarily; or (b) an offence against a law of another State, a Territory, the Commonwealth or a country outside Australia that would have constituted an offence referred to in paragraph (a) if it had been committed in Tasmania; State – (a) when used other than in a geographical sense – means the Crown in right of Tasmania; and (b) when used in a geographical sense – includes the Australian Capital Territory and the Northern Territory; tainted property, in relation to an offence, means – (a) an instrument of crime; or (b) proceeds of the offence; or (c) property that constitutes a commercial benefit in relation to the offence – and when used without reference to a particular offence means tainted property in relation to a serious offence; telephone includes radio; unexplained wealth – see section 139 ; unexplained wealth declaration means a declaration under section 142 ; unlawful activity means an act or omission that constitutes an offence against a law of – (a) Tasmania; or (b) another State; or (c) the Commonwealth; wealth – see section 138 . (2) For the purposes of this Act, a person is taken to have been charged with an offence if a complaint has been made against the person for the offence, whether or not – (a) a summons to require the attendance of the person to answer the complaint has been issued; or (b) a warrant for the apprehension of the person has been issued. (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 that person; and (b) a benefit derived directly or indirectly by another person at the request or direction of that person. (4) 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, having regard solely to commercial considerations, reflects the value of the property or the interest. (5) For the purposes of this Act, a person is not taken to be a director within the meaning of paragraph (c) of the definition of director in subsection (1) by reason only that the directors act on advice given by that person in the proper performance of the functions attaching to his or her professional capacity or to his or her business relationship with the directors of the financial institution or corporation. 4A. Meaning of property-tracking document For the purposes of this Act, a property-tracking document is a document relevant to – (a) identifying, locating or quantifying the property of a person who committed an offence; or (b) identifying or locating a document relating to the transfer of the property of a person who committed an offence; or (c) identifying, locating or quantifying tainted property in relation to an offence; or (d) identifying or locating a document relating to the transfer of tainted property in relation to an offence; or (e) identifying, locating or quantifying the constituents of commercial benefits derived by a person in respect of an offence; or (f) identifying or locating a document relating to the transfer of the constituents of commercial benefits derived by a person in respect of an offence; or (g) identifying, locating or quantifying the constituents of a person's wealth; or (h) identifying or locating a document relating to the transfer of the constituents of a person's wealth; or (i) identifying or locating a document relating to the transfer of property that may be used to satisfy an unexplained wealth declaration or a proposed unexplained wealth declaration. 4B. Meaning of commercial benefit For the purposes of this Act, commercial benefits include – (a) benefits obtained from the publication or prospective publication of material in relation to the commission of an offence; and (b) benefits obtained from the commercial exploitation in any other way of notoriety gained by any person from the commission of an offence; and (c) literary proceeds within the meaning of section 4C . 4C. Meaning of literary proceeds (1) For the purposes of this Act, literary proceeds are any benefits that a person derives from the commercial exploitation of – (a) the notoriety of the person as a result, either directly or indirectly, of the person committing an offence; or (b) the notoriety of the person as a result of his or her involvement, whether directly or indirectly, in the commission of an offence by another person. (2) In determining whether or not a person has derived literary proceeds, or determining the value of literary proceeds that a person has derived, an appropriate court may treat as the property of the person any property that, in the court's opinion – (a) is subject to the person's effective control; or (b) was not received by the person, but was transferred or paid to another person – (i) at the direction of the first-mentioned person; or (ii) as a result of a transaction involving the first-mentioned person; or (iii) as payment for an act or omission of the first-mentioned person. 5. Meaning of "convicted", &c. (1) For the purposes of this Act, a person is taken to have been convicted of an offence if – (a) the person has been charged with and found guilty and convicted of the offence; or (b) the person has been charged with and found guilty of the offence but the court hearing the charge has not proceeded to conviction; or (c) the offence has been taken into account by a court in sentencing the person for another offence; or (d) the person has absconded in connection with the offence. (2) For the purposes of this Act, a person's conviction is taken to have been quashed if – (a) in the case of a person who is taken to have been convicted of the offence by reason of subsection (1) (a) – the conviction has been quashed or set aside; or (b) in the case of a person who is taken to have been convicted of the offence by reason of subsection (1) (b) – the finding of guilt has been quashed or set aside; or (c) in the case of a person who is taken to have been convicted of the offence by reason of subsection (1) (c) – either of the following events has occurred: (i) the person's conviction of the other offence referred to in that subsection has been quashed or set aside; (ii) the decision of the court to take the offence into account in passing sentence for that other offence has been quashed or set aside; or (d) in the case of a person who is taken to have been convicted of the offence by reason of subsection (1) (d) – the person, after being brought before a court in respect of the offence, has been discharged in respect of the offence or a conviction of the person for the offence has been quashed or set aside. (3) A reference in this Act in relation to a person's conviction of an offence to the commission of the offence is, if the person is taken to have been convicted of the offence by reason of subsection (1) (d) , to be taken to be reference to the alleged commission of the offence by that person. 5A. Person may be dealt with as if convicted in certain circumstances For the purposes of this Act, an authorized officer or appropriate court may deal with a person under this Act as if the person has been convicted of a serious offence if the person – (a) has been convicted of an offence in respect of the same events that were the basis of another person being convicted of a serious offence; and (b) derived literary proceeds in respect of either offence. 6. Meaning of "absconded" For the purposes of this Act, a person is taken to have absconded if and only if – (a) the person has been charged with a serious offence; and (b) a warrant for the arrest of the person has been issued in relation to the offence; 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 is taken to have so absconded on the last day of that period of 6 months. 7. Meaning of "dealing with property or proceeds" For the purposes of this Act, dealing with the property of a person or the proceeds of crime includes – (a) receiving, possessing or disposing of the property or proceeds; and (b) bringing the property or proceeds, or causing the property or proceeds to be brought, into Tasmania, or removing the property or proceeds from Tasmania including transferring the property or proceeds, or causing the property or proceeds to be transferred, by electronic communication; and (c) engaging, directly or indirectly, in a transaction involving the property or proceeds, including receiving or making a gift of the property or proceeds; and (d) if a debt is owed by the person, making a payment of the property or proceeds in reduction of the amount of the debt. 8. 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, other than Part 9 , 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) Without limiting the generality of any other provision of this Act, in determining – (a) whether or not any property, or any interest in any property, is subject to the effective control of a person; or (b) whether or not there are reasonable grounds to believe that any property, or any interest in any 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 in trusts of the kind referred to in paragraph (d) , and other persons. 9. Meaning of "appropriate court" For the purposes of this Act, a reference to an appropriate court is a reference to – (a) in any case – the Supreme Court; or (b) in relation to the conviction of a person by a court of summary jurisdiction – either that court or the Supreme Court. 10. Application of provisions of Act (1) Parts 2 , 3 and 4 of this Act do not apply to a person's conviction of an offence if the person was convicted of the offence before the commencement day. (2) Subsection (1) does not apply in relation to interstate forfeiture orders, interstate pecuniary penalty orders or interstate restraining orders. (3) Subject to this section, this Act applies to – (a) an offence committed, or believed to have been committed, at any time (whether before or after the commencement day); and (b) a person's conviction at any time of an offence (whether before or after the commencement day). PART 2 - Confiscation Division 1 - Applications for confiscation orders 11. Applications (1) If a person is convicted of a serious offence, an authorized officer may apply to an appropriate court for either or both of the following orders: (a) a forfeiture order against property that is tainted property in respect of the offence; (b) a pecuniary penalty order against the person in respect of benefits, including any commercial benefits, derived by the person from the commission of the offence. (2) Except as provided by subsection (3) , an application under subsection (1) is to be made before the end of the relevant application period in relation to the conviction. (3) An application under subsection (1) may be made at any time after the end of the relevant application period in relation to the conviction if the application relates exclusively to commercial benefits. (4) An application under subsection (1) (b) may be made in relation to one or more serious offences. (5) If an application under subsection (1) has been finally determined, no further application is to be made under that subsection in relation to the same conviction except with the leave of the Supreme Court. (6) The Supreme Court is not to grant leave under subsection (5) unless it is satisfied that – (a) the tainted property or the benefit to which the further application relates was identified only after the first application was finally determined; or (b) necessary evidence became available only after the first application was finally determined; or (c) it is otherwise in the interests of justice to grant the leave. 12. Notice of applications (1) If an authorized officer applies for a forfeiture order against property in respect of a person's conviction of an offence – (a) the authorized officer is to give written notice of the application to that person and to any person who the authorized officer has reason to believe may have an interest in the property; and (b) the person convicted of the offence and any 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 authorized officer to give or publish notice of the application to a specified person or class of persons in such manner and within such time as the court considers appropriate. (2) If an authorized officer applies for a pecuniary penalty order against a person – (a) the authorized officer is to give the person written notice of the application; and (b) the person may appear and adduce evidence at the hearing of the application. 13. Amendment of applications (1) A court may, at any time before making a confiscation order, amend the application for the order at the request of, or with the consent of, the authorized officer who made the application. (2) A court is not to exercise the power referred to in subsection (1) 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 – unless the court is satisfied that – (c) the property or benefit was not reasonably capable of being identified 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 – (a) the applicant for the amendment is to give written notice of the application to amend to each person who the applicant has reason to believe may have an interest in the additional property; and (b) a person so notified and any person who claims an interest in the additional property may appear and adduce evidence at the hearing of the application to amend. (4) If the amendment of an application for a pecuniary penalty order against a person would have the effect of including an additional benefit in the application for the pecuniary penalty order, the applicant for the amendment is to give the person written notice of the application to amend. 14. Making of confiscation order if person absconded If a person is taken to have been convicted of a serious offence by reason of section 5 (1) (d) , a court is not to 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 it, that a reasonable and properly instructed jury could lawfully find the person guilty of the offence. 15. Procedure on applications (1) A court to which an application is made for a confiscation order in respect of a person's conviction of an offence may, in determining the application, have regard to the transcript of any proceedings against the person for the offence. (2) If – (a) an application is made for a confiscation order in respect of a person's conviction of an offence; and (b) the application is made to the court before which the person was convicted; and (c) the court has not passed sentence on the person for the offence – the court may, if it is satisfied that it is reasonable to do so, defer passing sentence until it has determined the application for the confiscation order. (3) If – (a) a person is taken to have been convicted of an offence by reason 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 offence is to be taken to include a reference to proceedings against the person for the other offence referred to in section 5 (1) (c) . Division 2 - Forfeiture orders 16. Forfeiture orders (1) If a person has been convicted of a serious offence, and an application is made to a court under section 11 (1) (a) in relation to particular property, the court may, if it is satisfied that the property is tainted property in relation to the offence, order that the property is forfeited to the State. (2) In considering whether to make a forfeiture order a court is, having regard to the information before it, to consider – (a) the use that is ordinarily made, or was intended to be made, of the property; and (b) any hardship that is likely to be caused to any person by making the order. (3) In considering any hardship that is likely to be caused to a person convicted of a serious offence by the making of a forfeiture order, a court is not to take into account the sentence imposed for the offence. (4) If a court orders that property other than money is forfeited to the State under a forfeiture order, the court is to specify in the order the amount that it considers to be the value of the property at the time the order is made. (5) If, at the hearing of an application made under section 11 (1) (a) in reliance on the conviction of a person of a serious offence, evidence is given that property to which the application relates was in the possession of the person at, or immediately after, the time the offence was committed, then – (a) if there is no evidence given tending to show that the property was not used in, or in connection with, the commission of the offence – the court is to presume that the property was used in, or in connection with, the commission of the offence; or (b) in any other case – the court is not to make an order under this section in relation to the property unless it is satisfied that the property was used in, or in connection with, the commission of the offence. (6) A court that makes a forfeiture order in reliance on a person's conviction of a serious offence may declare in the order the extent of the person's estate, interest or rights in the property affected by the order and, if the order applies to land, the court must do so. 17. Effect of forfeiture orders (1) If a court makes a forfeiture order in respect of property – (a) the property vests in the State; and (b) if the property is land under the Land Titles Act 1980 – the State is entitled to be registered as the owner of the land; and (c) the property vests subject to every charge or encumbrance to which the property was subject immediately before the forfeiture order was made and, in the case of land under the Land Titles Act 1980 , subject to every mortgage, lease or other interest recorded in the register kept under that Act; and (d) the Attorney-General has power, on behalf of the State, to do or authorize the doing of anything necessary or convenient to obtain the registration of the State as owner of the property; and (e) if the property is not already in the possession of the State – the State may take possession of the property; and (f) if the property is money – the State is entitled to pay the money into the Crime (Confiscation of Profits) Account in accordance with section 79 . (2) Except with the leave of the court that made the forfeiture order, the State is not to – (a) dispose of, or otherwise deal with, property that has vested in the State under the order; or (b) authorize any person to dispose of, or otherwise deal with, such property – before the end of the greater of the following periods: (c) the appeal period; (d) the period of 6 months immediately following the making of the order. (3) If a court makes a forfeiture order in respect of property and, at the end of the greater of the 2 periods referred to in subsection (2) the forfeiture order has not been discharged, the property may – (a) in the case of money – be paid into the Crime (Confiscation of Profits) Account in accordance with section 79 if it has not previously been paid into that account; and (b) in the case of property other than money – be disposed of, or otherwise dealt with, in accordance with any directions of the Attorney-General or of a person authorized by the Attorney-General for the purposes of this subsection and any proceeds deposited in the Crime (Confiscation of Profits) Account. (4) For the purposes of subsections (2) and (3) , the appeal period ends when an appeal may no longer be lodged against either the forfeiture order or the conviction in reliance on which the order was made or, if such an appeal is lodged, when the appeal lapses or is finally determined. 18. Provisions relating to third parties (1) If an application is made to a court for a forfeiture order against particular property, a person who claims an interest in the property may, subject to subsection (2) , apply to that court for an order under subsection (5) . (2) If a forfeiture order has been made, an application under