Criminal Assets Recovery Act 1990 (NSW)

Criminal Assets Recovery Act 1990 No 23 An Act to provide for the confiscation of interests in property that are interests of a person engaged in serious crime related activities; to enable proceeds of serious crime related activities to be recovered as a debt due to the Crown; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Criminal Assets Recovery Act 1990. 2 Commencement and duration (1) This Act commences on a day or days to be appointed by proclamation. Editorial note— Day appointed for the purposes of this section: 3.8.1990—see Gazette No 97 of 3.8.1990, p 7096. (2) This Act is repealed 6 years after the day, or the earlier or earliest of the days, appointed under subsection (1) unless either House of Parliament earlier resolves to the contrary. Editorial note— Resolution passed in Legislative Assembly on 19.6.1996 that the Act is not to be repealed in accordance with section 2 (2) of the Act. 3 Principal objects The principal objects of this Act are— (a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and (a1) to enable the current and past wealth of a person to be recovered as a debt due to the Crown if the Supreme Court finds there is a reasonable suspicion of one or more of the following, unless the person can establish the wealth was lawfully acquired— (i) the person has engaged in a serious crime related activity, (ii) the person has acquired proceeds from the serious crime related activity of another person, (iii) the person's current or previous wealth significantly exceeds the value of the person's lawfully acquired wealth, and (b) to enable the proceeds of illegal activities of a person to be recovered as a debt due to the Crown if the Supreme Court finds it more probable than not the person has engaged in any serious crime related activity in the previous 6 years or acquired proceeds of the illegal activities of such a person, and (b1) to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired property held in a false name or is not declared in confiscation proceedings, and (c) to enable law enforcement authorities effectively to identify and recover property. 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. assets forfeiture notice has the same meaning as in section 21C(1). assets forfeiture order means an order made under section 22 and in force. authorised officer means— (a) the Commissioner for the New South Wales Crime Commission, or (a1) an Assistant Commissioner for the New South Wales Crime Commission, or (b) a member of the Police Force, or (c) a person authorised in writing by the Commission, either generally or in a special case, to act as an authorised officer for the purposes of the provision in which the expression occurs. available interest relating to serious crime use property means an interest in property that is an available interest relating to serious crime use property as provided by section 9B. Commission means the New South Wales Crime Commission constituted under the Crime Commission Act 2012. confiscation order means an assets forfeiture order, proceeds assessment order or unexplained wealth order. corresponding law means a law of the Commonwealth, another State or a Territory that is prescribed by the regulations as a law that corresponds to this Act. current or previous wealth, of a person, means the amount equal to the sum of the values of the following, whether held within or outside New South Wales— (a) all interests in property of the person, (b) all interests in property subject to the effective control of the person, (c) all interests in property that the person has expended, consumed or otherwise disposed of, whether by gift, sale or otherwise, (d) a service, advantage or benefit provided for the person or, at the person's request or direction, to another person. dealing, in relation to an interest in property, includes— (a) if the interest is a debt—making a payment to any person in reduction of the amount of the debt, and (b) removing the property in which the interest is held from New South Wales, and (c) receiving or making a gift of the interest, and (d) vesting the interest in a person in the course of administering the estate of a deceased person. dependant in relation to a person means— (a) a spouse or a de facto partner of the person, or (b) a child, or a member of the household, of the person, dependent for support on the person. 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 a 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 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) except as provided by subsection (4), any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act. effective control, in relation to an interest in property, includes effective control of the interest as provided by section 8. encumbrance, in relation to property, includes any interest, mortgage, charge, right, claim and demand in respect of the property. engaging in includes having been engaged in. external serious crime related activity means serious crime related activity arising out of an offence under the law of the Commonwealth or a place outside this State (including outside Australia) which, if the offence had been committed in this State, would be a serious criminal offence. 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). fraudulently acquired property means an interest in property that is fraudulently acquired property as provided by section 9A. illegal activity means— (a) a serious crime related activity, or (b) an act or omission that constitutes an offence (including a common law offence) against the laws of New South Wales or the Commonwealth, or (c) an act or omission that occurs outside New South Wales, is an offence against the law of the place where it occurs and is of a kind that, if it had occurred in New South Wales, would have been an offence referred to in paragraph (b). illegally acquired property means an interest in property that is illegally acquired property as provided by section 9. indictable quantity means a quantity of a prohibited plant or a prohibited drug that is an indictable quantity under the Drug Misuse and Trafficking Act 1985. interstate assets 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 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 proceeds assessment or unexplained wealth 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 assets forfeiture order, interstate crime related property declaration, interstate restraining order or interstate proceeds assessment or unexplained wealth order may be made under a corresponding law of the State. money means money held by, or in the effective control of, a person, including in the form of cash or digital currency. monitoring order means an order made under section 48 and in force. officer means a director, secretary, executive officer or employee. owner, in relation to an interest in property, includes a person who has effective control of the interest. premises includes all or part of any structure, building, aircraft, vehicle, vessel and place (whether built on or not). proceeds, in relation to an activity, includes any interest in property, and any service, advantage or benefit (including, without limitation, an increase in the value of an interest in property), that is derived or realised, directly or indirectly, as a result of the activity— (a) by the person engaged in the activity, or (b) by another person if the person engaged in the activity— (i) intended for the other person to derive or realise (whether directly or indirectly) the interest, service, advantage or benefit, or (ii) knew, or ought reasonably to have known, that the other person would be likely to derive or realise (whether directly or indirectly) the interest, service, advantage or benefit. Proceeds Account means the Confiscated Proceeds Account established under section 32. proceeds assessment order means an order made under section 27 and in force. production order means an order made under section 33 and in force. prohibited drug means a substance that is a prohibited drug under the Drug Misuse and Trafficking Act 1985. prohibited plant means a plant that is a prohibited plant under the Drug Misuse and Trafficking Act 1985. property-tracking document means a document, including a document in digital or electronic form, relevant to determining, identifying or locating one or more of the following— (a) an interest in property of a person who might reasonably be suspected of engaging in a serious crime related activity, (b) a document necessary for the transfer of an interest in property of a person who might reasonably be suspected of engaging in a serious crime related activity, (c) an interest in property that might reasonably be suspected of being an interest that is serious crime derived property, (d) a document necessary for the transfer of an interest in property that might be reasonably suspected of being an interest that is serious crime derived property, (e) the current or previous wealth of a person that might reasonably be suspected of being unexplained wealth. registrable digital currency exchange service has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth. restraining order means an order made under section 10A and in force. rules of court means rules of the Supreme Court. serious crime derived property means an interest in property that is serious crime derived property as provided by section 9. serious crime related activity means serious crime related activity referred to in section 6. serious crime use property means property that is serious crime use property as provided by section 9B. serious criminal offence—see section 6. substituted serious crime use property declaration means a declaration under section 22AA. unexplained wealth, of a person, means the whole or any part of the current or previous wealth of the person that is or was— (a) illegally acquired property, or (b) the proceeds of an illegal activity. unexplained wealth order means an order made under section 28A and in force. working day means any day that is not a Saturday, Sunday or a public holiday. 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 acquiring an interest in property for sufficient consideration is a reference to acquiring the interest for a consideration that, having regard solely to commercial considerations, reflects the value of the interest. (3) A reference in this Act to a transaction of any kind (including sale, disposition, dealing and acquisition) includes a reference to a transaction outside New South Wales. (4) For the purposes of this Act, a person is not to 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) just because the directors act on advice given by that person in the proper performance of the functions attaching to his or her professional capacity. (5) If an expression used in this Act would ordinarily impose a duty, it is not to be construed in a particular case or particular cases as conferring a discretion. (6) 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. (7) Notes included in this Act are explanatory notes and do not form part of this Act. 5 Proceedings are civil, not criminal (1) For the purposes of this Act, proceedings on an application for a restraining order or a confiscation order are not criminal proceedings. (2) Except in relation to an offence under this Act— (a) the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of the provisions of this Act, and (b) the rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act. 6 Meaning of "serious crime related activity" (1) In this Act, a reference to a serious crime related activity of a person is a reference to anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence or, if charged— (a) has been tried, or (b) has been tried and acquitted, or (c) has been convicted (even if the conviction has been quashed or set aside). (2) In this section— drug trafficking offence means an offence under the following provisions of the Drug Misuse and Trafficking Act 1985— (a) section 23—offences relating to prohibited plants, (b) section 23A—offences relating to enhanced indoor cultivation of prohibited plants in the presence of children, (c) section 24—offences relating to the manufacture and production of prohibited drugs, (d) section 24A—offences relating to the possession of precursors for the manufacture or production of prohibited drugs, (e) section 25—offences relating to the supply of prohibited drugs, (f) section 25A—offence of supplying prohibited drugs on an ongoing basis. serious criminal offence means the following offences— (a) the following offences referred to in the Poisons and Therapeutic Goods Act 1966, section 45A, immediately before its repeal— (i) the offence of supplying a drug of addiction or prohibited drug, (ii) the offence of cultivating, supplying or possessing a prohibited plant, (iii) the offence of permitting premises, as owner, occupier or lessee of the premises, to be used for the purpose of the cultivation or supply of a prohibited plant or of being concerned in the management of the premises, (b) a drug trafficking offence, (c) a prescribed indictable offence, or an indictable offence of a prescribed kind, that is of a similar nature to a drug trafficking offence, including in either case an offence under a law of the Commonwealth, another State or a Territory, (d) an offence punishable by imprisonment for 5 years or more involving theft, fraud, obtaining financial benefit from the crime of another person, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, forgery or homicide, (e) an offence under the Firearms Act 1996, section 50A, 51, 51B, 51BA or 51BB, (f) a second or subsequent offence under the Drug Misuse and Trafficking Act 1985, section 36Y, (g) an offence under the following provisions of the Crimes Act 1900— (i) section 80D or 80E, (ii) Part 3, Division 15 or 15A, other than section 91D(1)(b), (iii) section 93T or 93TA, (iv) section 197, to the extent the offence involves the destruction of or damage to property having a value of more than $500, (v) section 308C, to the extent the offence involves the intention of committing an offence referred to in this paragraph or paragraphs (a)–(f), (vi) section 308D or 308E, (h) an offence under the law of the Commonwealth or a place outside this State, including outside Australia, that, if the offence had been committed in this State, would be an offence referred to in paragraphs (a)–(g), (i) an offence of attempting to commit, or of conspiracy or incitement to commit, or of aiding or abetting, an offence referred to in paragraphs (a)–(h). (3), (4) (Repealed) 7 Meaning of "interest in property" (1) In this Act, a reference to an interest of a person in property is a reference to— (a) an interest the person has in real or personal property, or (b) a chose in action enforceable at the suit of the person, or (c) an interest of the person that is within a class of interests prescribed as interests in property for the purposes of this Act. (2) Without limiting the generality of subsection (1), a reference in this Act to an interest of a person in property includes a reference to— (a) the person's money, and (b) an interest that the person has in the goodwill of a business, and (c) an interest that the person has in a licence required to be held in order to carry on a business. (2A) A reference in this Act to an interest of a person in property includes a reference to an interest of a person in property situated outside New South Wales (including outside Australia). (3) For the purposes of this Act, if— (a) but for this subsection, a person would have an interest in property as provided by subsection (1), and (b) the interest is subject to the effective control of another person, the interest is an interest of the person who has effective control and is not an interest of the person referred to in paragraph (a). (4) In this section— 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. 8 Meaning of "effective control of interest in property" (1) An interest in property may be subject to the effective control of a person within the meaning of this Act even if— (a) the person does not have a legal or equitable estate or interest in the property, or (b) the person has no direct or indirect right, power or privilege in connection with the interest. (2) In determining whether or not an interest in property is subject to the effective control of a person, regard may be had to any relevant matter, including (without being limited to) the following matters— (a) shareholdings in, debentures of, or directorships of, a company that has the interest, (b) a trust that has a relationship to the interest, (c) family, domestic, business and other relationships between that person and other 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). 9 Meaning of "serious crime derived property" and "illegally acquired property" (1) An interest in property is serious crime derived property if— (a) it is all or part of the proceeds of a serious crime related activity, or (b) it is all or part of the proceeds of the disposal of or other dealing in serious crime derived property, or (c) it was wholly or partly acquired using serious crime derived property. (2) The references in subsection (1) (b) and (c) to serious crime derived property are not limited to serious crime derived property described in subsection (1) (a) but also include interests in property that are serious crime derived property because of a previous operation or previous operations of subsection (1) (b) or (c) or their combined operation. (2A) Without limiting subsection (1), an interest in property is taken to be wholly or partly acquired using serious crime derived property if it is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using all or part of the proceeds of a serious crime related activity or serious crime derived property. (3) Once an interest in property becomes serious crime derived property it remains serious crime derived property even if the interest is disposed of or otherwise dealt with (including by being used to acquire an interest in property), but this is qualified by subsection (5). (4) The meaning of illegally acquired property is ascertained by substituting, in subsections (1)–(3), illegally acquired property for serious crime derived property and illegal activity for serious crime related activity. (5) An interest in property ceases to be serious crime derived property or illegally acquired property— (a) when it is acquired by a person for sufficient consideration without knowing, and in circumstances that would not arouse a reasonable suspicion, that the interest was, at the time of acquisition, serious crime derived property or illegally acquired property, or (b) when it vests in a person as a result of the distribution of the estate of a deceased person, or (c) when the interest is sold or otherwise disposed of under the authority of this Act (including when discharging a proceeds assessment order or unexplained wealth order), or (d) when it is the proceeds of the sale or other disposition of serious crime derived property or illegally acquired property under the authority of this Act, except if— (i) the sale or other disposition is pursuant to an order of the Supreme Court under this Act and the order does not expressly provide for the property to cease to be serious crime derived property or illegally acquired property on its sale or disposition, or (ii) the sale or other disposition is under section 10B (4) (b) or 14, or (e) when it is acquired by a person as payment of reasonable legal expenses incurred in connection with an application under this Act or incurred in defending a criminal charge, or (f) in such other circumstances as may be prescribed. (6) If an interest in property that is not serious crime derived property or illegally acquired property was once owned by a person and was then serious crime derived property or illegally acquired property, the property becomes serious crime derived property or illegally acquired property, respectively, if and when it is again acquired by the person. (7) The proceeds of a sale or other dealing do not lose their identity as such merely as a result of being credited to an account. (8) It does not matter whether the serious crime related activity, illegal activity, disposition or other dealing or acquisition by reason of which an interest in property becomes serious crime derived property or illegally acquired property took place before or after the commencement of this section. (9) The following are examples of the practical operation of this section showing the ways in which an interest in property can become serious crime derived property and stop being serious crime derived property— (a) if money that is the proceeds of a serious crime related activity is used to buy land, the land becomes serious crime derived property and the money used (which is now in the hands of some other person) continues to be serious crime derived property, (b) if the land is then sold it continues to be serious crime derived property and the money paid for it becomes serious crime derived property, (c) if the money paid for the land is then used to buy a car, the car becomes serious crime derived property and the money used to buy it (now in the hands of the car's former owner) continues to be serious crime derived property unless the purchase was for sufficient consideration from an innocent person. 9A Meaning of "fraudulently acquired property" (1) An interest in property is fraudulently acquired property if the interest is held in a false name and any of the following was knowingly used for the purposes of acquiring, or dealing with, that property— (a) a false instrument (including a birth certificate or other identity document) or signature, (b) a birth certificate or other identity document of another person. (2) In this section— false instrument has the same meaning as it has in Division 2 (False instruments) of Part 5 of the Crimes Act 1900. identity document includes any document that may be used for the purposes of an identity verification procedure under the Financial Transaction Reports Act 1988 of the Commonwealth. 9B Meaning of "serious crime use property" and "available interest relating to serious crime use property" (1) In this Act, a reference to serious crime use property is a reference to property that was used in, or in connection with, a serious crime related activity. (2) In this Act, an interest in property is an available interest relating to serious crime use property if— (a) the interest is an interest of a person who has engaged in serious crime related activity (the offender), and (b) the offender's activity resulted in the property, or any other property, becoming serious crime use property for the purposes of this Act, and (c) the property is either the serious crime use property or, if that property is not available for forfeiture as referred to in subsection (3), any other property that is the subject of a substituted serious crime use property declaration. (3) Serious crime use property is not available for forfeiture if— (a) the offender does not own, and does not have effective control of, the property, or (b) the property has been sold or otherwise disposed of or cannot be found for any other reason. Part 2 Restraining orders 10 Nature of "restraining order" A restraining order is an order that no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances (if any) as are specified in the order. 10A Proceedings for restraining orders (1) Application for order The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, a specified class of interests, or all the interests, in property of any person (including interests acquired after the making of the order). (2) The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, or a specified class of interests, in property that are held in a false name. (3) The Commission may only apply for a restraining order that relates to interests in property derived from external serious crime related activity if the person who has the interests is domiciled in New South Wales or the property is situated in New South Wales. (4) Notice to affected person of application Despite the application for a restraining order being made ex parte, the Supreme Court may, if it thinks fit, require the Commission to give notice of the application to a person who the Court has reason to believe has a sufficient interest in the application. A person who is required to be notified is entitled to appear and adduce evidence at the hearing of the application. (5) Determination of applications The Supreme Court must make a restraining order if the application for the order is supported by an affidavit of an authorised officer stating that— (a) in the case of an application in respect of an interest referred to in subsection (1)—the authorised officer suspects that— (i) the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities, or (ii) the person whose interest is the subject of the application has acquired serious crime derived property because of any such activity of the person or of another person, or (iii) the interest is serious crime derived property, or (iv) the person has not disclosed an interest in property in evidence or a warranty or other representation given or made by the person in proceedings relating to an application for an assets forfeiture order, proceeds assessment order or unexplained wealth order, or examination proceedings under this Act, and the interest to which the application relates is capable of being the subject of an order under section 31A or 31B because of that non-disclosure, or (v) the person's unexplained wealth is at least— (A) for unexplained wealth that is money—$250,000, or (B) otherwise—$2,000,000, and stating the grounds on which that suspicion is based, and (b) (Repealed) (c) in the case of an application in respect of an interest referred to in subsection (2)—the authorised officer suspects that the interest is fraudulently acquired property that is illegally acquired property and stating the grounds on which that suspicion is based, and the Court considers that, having regard to the matters contained in any such affidavit and any evidence adduced under subsection (4), there are reasonable grounds for any such suspicion. (6) The Supreme Court may grant an application under this section for a restraining order for interests in property derived from external serious crime related activity only if the application is supported by an affidavit of an authorised officer stating that the officer has made due enquiry and is satisfied that no acti