New South Wales: 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 (2) This Act is repealed 6 years after the day, or the earlier or earliest of the days, appointed under subsection (1) unless either House of Parliament earlier resolves to the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 Editorial note— Resolution passed in Legislative Assembly on 19.6.1996 that the Act is not to be repealed in accordance with section 2 (2) of the Act. 3 Principal objects The principal objects of this Act are— (a) to provide for the confiscation, without requiring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 action has been taken under a law of the Commonwealth or any place outside this State (including outside Australia) against any interests in property of the person concerned that are the subject of the application as a result of the external serious crime related activity. (7) Undertakings by State as to costs or damages The Supreme Court may refuse to make a restraining order if the State refuses or fails to give to the Court such undertakings as the Court considers appropriate as to the payment of damages or costs, or both, in relation to the making and operation of the order. (8) For the purposes of an application for a restraining order, the Commission may, on behalf of the State, give to the Supreme Court such undertakings as to the payment of damages or costs, or both, as the Court requires. (9) Urgent applications by telephone or other means of communication An authorised officer may, on behalf of the Commission, apply for a restraining order by telephone, radio, facsimile, email or other means of communication if the application is supported by a statement of the officer that— (a) the order is required urgently as there is a risk that funds in a specified financial institution (being an interest in property in respect of which the order is sought) may be withdrawn or transferred to a place outside New South Wales (including outside Australia), and (b) it is not practicable for the authorised officer to appear in person. (10) If it is not possible for the application to be made directly to the Supreme Court by the applicant, the application may be transmitted to the Supreme Court by another person on behalf of the applicant. 10B Contents and effect of restraining orders (1) A restraining order does not apply to an interest in property acquired after the order is made unless the order expressly provides that it does so apply. (2) The Supreme Court may, when it makes a restraining order (or during the time that it is in force) and if it considers that the circumstances so require, order the NSW Trustee and Guardian to take control of some or all of the interests in property that are interests to which the restraining order applies. (3) A restraining order may, at the time it is made or a later time, provide for meeting out of the property, or a specified part of the property, to which the order applies all or any of the following— (a) the reasonable living expenses of any person whose interests in property are subject to the restraining order (including the reasonable living expenses of any dependants), (b) subject to section 16A, the reasonable legal expenses of any person whose interests in property are subject to the restraining order, being expenses incurred in connection with the application for the restraining order or an application for a confiscation order, or incurred in defending a criminal charge. (3A) The Supreme Court may direct the NSW Trustee and Guardian to pay legal expenses with respect to which provision is made under this section in stages out of some or all of the property to which the restraining order applies that is under the control of the NSW Trustee and Guardian if the Supreme Court— (a) is satisfied (by a bill of costs in assessable form or other evidence acceptable to the Supreme Court) that the reasonable legal expenses incurred at the time the direction is made exceed the amount prescribed by the regulations and that further expenses will be incurred, and (b) it considers the circumstances so require. (3B) Before making a direction under subsection (3A), the Supreme Court may refer the matter to a costs assessor (within the meaning of Part 7 of the Legal Profession Uniform Law Application Act 2014) for inquiry and report. (3C) For the purpose of enabling the NSW Trustee and Guardian to comply with a direction under subsection (3A), the Supreme Court may order it to sell or otherwise dispose of any interest in the property concerned. (4) A restraining order that is in force in respect of an interest of a person in property does not prevent— (a) the levying or execution against the property in satisfaction, or partial satisfaction, of the debt arising under a proceeds assessment order or unexplained wealth order in force against the person, or (b) with the consent of the Supreme Court, the sale or other disposition of the interest to enable the proceeds to be applied in satisfaction or partial satisfaction of that debt, or (c) with the consent of the Supreme Court, the application of the interest in satisfaction or partial satisfaction of that debt. 10C Review of restraining orders (1) The Supreme Court may, on the application of a person whose interest in property is affected by a restraining order, set aside the order on any of the following grounds— (a) that, having regard to the affidavit supporting the restraining order application and any other evidence adduced, the Commission has failed to satisfy the Court that there are reasonable grounds for the relevant suspicion referred to in section 10A (5), (b) that the applicant has established that the order was obtained illegally or against good faith. (2) An application under this section by a person is to be made not later than 28 days after the person is notified of the order or may be made at any time with the leave of the Supreme Court. (3) If an application is made under this section, the restraining order concerned remains in force unless and until an order is made by the Supreme Court to set aside the order. (4) A person who applies for an order is entitled to adduce evidence at the application. 10D Duration of restraining orders (1) After the first 2 working days of its operation, a restraining order remains in force in respect of an interest in property only while— (a) there is an application for an assets forfeiture order pending before the Supreme Court in respect of the interest, or (b) there is an unsatisfied proceeds assessment order or unexplained wealth order in force against the person whose suspected serious crime related activities, value of unexplained wealth or acquisition of serious crime derived property formed the basis of the restraining order, or (c) there is an application for such a proceeds assessment order or unexplained wealth order pending before the Supreme Court, or (d) it is the subject of an order of the Supreme Court under section 20, or (e) there is an application for an order under section 31A in respect of the interest pending before the Supreme Court, or (f) there is an unsatisfied order under section 31B in force against the person whose non-disclosure formed the basis of the restraining order or there is an application for such an order pending before the Supreme Court. (2) A restraining order ceases to be in force if it is set aside under section 10C. 11 Notice of restraining order (1) If the Supreme Court makes a restraining order, the Commission must give notice of the order and of any variation of the order to— (a) the Director of Public Prosecutions, and (b) the Commissioner of Police. (2) If— (a) a restraining order is made in respect of an interest in property of a person, and (b) the person was not notified of the application for the making of the restraining order, notice of the making or variation of the order is to be given by the Commission to the person. (3) A restraining order does not cease to be in force just because proper efforts to give notice of its making have been unsuccessful. 12 Supreme Court may make further orders (1) The Supreme Court may, when it makes a restraining order or at any later time, make any ancillary orders (whether or not affecting a person whose interests in property are subject to the restraining order) that the Court considers appropriate and, without limiting the generality of this, the Court may make any one or more of the following orders— (a) an order varying the interests in property to which the restraining order relates, (b) an order for the examination on oath of— (i) the owner of an interest in property that is subject to the restraining order, or (ii) another person, before the Court, or before an officer of the Court prescribed by rules of court, concerning the affairs of the owner, including the nature and location of any property in which the owner has an interest, (b1) an order for the examination on oath of a person who is the spouse or a de facto partner of the owner of an interest in property that is subject to the restraining order, before the Court or before an officer of the Court prescribed by the rules of court, concerning the affairs of the person, including the nature and location of any property in which the person or that owner has an interest, (c) an order with respect to the carrying out of any undertaking with respect to the payment of damages or costs given on behalf of the State in connection with the making of the restraining order, (c1) an order directing a person who is or was the owner of an interest in property that is subject to the restraining order or, if the owner is or was a body corporate, a director of the body corporate specified by the Court, to furnish to the Commission or NSW Trustee and Guardian, within a period specified in the order, a statement, verified by the oath of the person making the statement, setting out such particulars of the property, or dealings with the property, in which the owner has or had an interest as the Court thinks proper, (d) if the restraining order requires the NSW Trustee and Guardian to take control of an interest in property— (i) an order regulating the manner in which the NSW Trustee and Guardian may exercise functions under the restraining order, or (ii) an order determining any question relating to the interest, including any question affecting the liabilities of the owner of the interest or the functions of the NSW Trustee and Guardian, or (iii) (Repealed) (e) an order requiring or authorising the seizure or taking possession of property. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. (2) An order under subsection (1) may be made on application— (a) by the Commission, or (b) by the owner, or (c) if the restraining order directed the NSW Trustee and Guardian to take control of an interest in property—by the NSW Trustee and Guardian, or (d) with the leave of the Supreme Court—by any other person. (3) The applicant for an order under subsection (1) must give notice of the order— (a) if the applicant is a person referred to in subsection (2) (a), (b) or (c)—to the other persons referred to in those paragraphs, or (b) if the applicant is a person referred to in subsection (2) (d)—to the persons referred to in subsection (2) (a)–(c). 13 Privilege (1) A person being examined under section 12 is not excused from answering any question, or from producing any document or other thing, on the ground that— (a) (Repealed) (b) production of the document would be in breach of an obligation (whether imposed by an enactment or otherwise) of the person not to disclose the existence or contents of the document, or (c) the answer or production would disclose information that is the subject of legal professional privilege. (2) A statement or disclosure made by a person in answer to a question put in the course of an examination under section 12, or any document or other thing obtained as a consequence of the statement or disclosure, is not admissible against the person in any civil or criminal proceedings except proceedings that comprise— (a) proceedings in respect of the false or misleading nature of a statement or disclosure made under this Act, or (b) proceedings on an application under this Act, or (c) proceedings ancillary to an application under this Act, or (d) proceedings for enforcement of a confiscation order, or (e) in the case of a document or other thing—civil proceedings for or in respect of a right or liability it confers or imposes. (3), (4) (Repealed) 13A Privilege against self-incrimination (1) A person being examined under section 12 is not excused from answering any question, or from producing any document or other thing, on the ground that the answer or production might incriminate, or tend to incriminate, the person or make the person liable to forfeiture or penalty. (2) However, any answer given or document produced by a natural person being examined under section 12 is not admissible in criminal proceedings (except proceedings for an offence under this Act or the regulations) if— (a) the person objected at the time of answering the question or producing the document on the ground that the answer or document might incriminate the person, or (b) the person was not advised that the person might object on the ground that the answer or document might incriminate the person. (3) Further information obtained as a result of an answer being given or the production of a document in an examination under section 12 is not inadmissible in criminal proceedings on the ground— (a) that the answer had to be given or the document had to be produced, or (b) that the answer given or document produced might incriminate the person. (4) A person directed by an order under section 12 to furnish a statement to the NSW Trustee and Guardian or the Commission is not excused from— (a) furnishing the statement, or (b) setting out particulars in the statement, on the ground that the statement or particulars might incriminate, or tend to incriminate, the person or make the person liable to forfeiture or penalty. (5) If a person furnishes a statement to the NSW Trustee and Guardian or the Commission in accordance with an order under section 12, the statement is not admissible against the person in any criminal proceedings except proceedings in respect of the false or misleading nature of the statement. 14 Supreme Court may order sale (1) If an application is made for a confiscation order and a restraining order is in force, the Supreme Court may, when the application is made or at a later time, make an order directing the NSW Trustee and Guardian to sell an interest in property that is subject to the restraining order if— (a) the property is subject to waste or substantial loss of value, or (b) in the opinion of the NSW Trustee and Guardian, the cost of controlling the interest would exceed the value of the interest if the restraining order were made. (2) Notice of an application for an order under this section must be given to the owner of the interest in property to which the application relates. (3) The proceeds of the sale under subsection (1) of an interest in property are subject to the restraining order to which the interest was subject. 15 Recording of restraining order (1) If a restraining order applies to an interest in property of a particular kind and the provisions of any law, whether or not a law of the State, provide for the registration of title to, an interest in or a charge over, property of that kind, the authority responsible for administering those provisions must, on application by the Commission, record in the register kept under those provisions the particulars of the restraining order. (2) If the particulars of a restraining order are so recorded, a person who subsequently deals with or attempts to deal with the property is, for the purposes of section 16, to be taken to have had notice of the restraining order. (3) If a restraining order applies to an interest in land under the provisions of the Real Property Act 1900, a caveat may be lodged under that Act in relation to the order. (4) If a restraining order recorded under this section ceases to have effect in relation to an interest in property in respect of which it was made, the Commission must— (a) apply for cancellation of the recording, and (b) withdraw any caveat lodged in relation to the order. 16 Contravention of restraining order (1) A person who contravenes a restraining order, or any ancillary order under section 12, by disposing of or attempting to dispose of, or by otherwise dealing with or attempting to otherwise deal with, an interest in property that is an interest subject to the restraining order is guilty of an offence and punishable, on conviction, by a fine equivalent to the value of the interest (as determined by the Supreme Court) or by imprisonment for a period not exceeding 2 years, or both, unless it is proved that the person had no notice that the interest was subject to the restraining order and no reason to suspect that it was. (2) Subsection (1) does not prevent a person from being dealt with for a contempt of the Supreme Court, but a person may not, for the same contravention of a restraining order, be punished both for a contempt of the Court and under subsection (1). (3) If— (a) a restraining order is made against an interest in property, and (b) the interest is disposed of, or otherwise dealt with, in contravention of the restraining order, and (c) the disposition or dealing was either not for sufficient consideration or not in favour of a person who acted in good faith, the disposition or dealing is void. (4) It is not a contravention of a restraining order to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property under the authority of this Act. 16A Restrictions on payment of legal expenses from restrained property (1) The following restrictions apply to a restraining order making provision for the payment of any legal expenses of a person— (a) no provision is to be made except to the extent (if any) that the Supreme Court is satisfied that the person cannot meet the expenses concerned out of the person's unrestrained property, (b) no provision is to be made in relation to any particular interest in property if the Supreme Court is satisfied that the interest is illegally acquired property, (b1) no provision is to be made in relation to any particular interest in property if the Supreme Court is satisfied that the interest is an available interest relating to serious crime use property or the interest is the subject of an application for a substituted serious crime use property declaration, (c) no provision is to be made unless a Statement of Affairs disclosing all the person's interests in property and liabilities and verified on oath by the person has been filed with the Supreme Court, (d) no provision is to be made unless the Supreme Court is satisfied that the person has taken all reasonable steps to bring all of the person's interests in property within the jurisdiction of the Court, (e) any such provision must specify the particular interest in property out of which the expenses concerned may be met. (1A) This section does not apply to or in respect of a provision of a restraining order made under section 10B (3) (b), with the consent of each person whose interests in property are subject to the restraining order, that is in the terms of an agreement negotiated between a person whose interests are subject to the restraining order and the Commission. (2) A person's unrestrained property is any interest in property of the person— (a) that is not subject to a restraining order under this Act, or (b) that the Supreme Court is satisfied is not within the Court's jurisdiction (whether or not it is subject to a restraining order under this Act), or (c) that the Supreme Court is satisfied would not be available to satisfy a proceeds assessment order or unexplained wealth order against the person (assuming such an order were to be made against the person). 16B Maximum legal expenses that can be met from restrained property (1) Despite provision in a restraining order for the meeting of legal expenses out of any property to which the order applies, a legal expense is not to be met out of that property to the extent that the amount payable for any legal service concerned exceeds any maximum allowable cost for the service that is fixed under this section. (2) For the purposes of this Act, the regulations may fix maximum allowable costs for legal services provided in connection with an application for a restraining order or confiscation order or the defending of a criminal charge. (3) Regulations under this section can fix costs by applying, adopting or incorporating, with or without modification, the provisions of any Act or any instrument made under an Act (for example, regulations under the Legal Profession Uniform Law Application Act 2014) or of any other publication, whether of the same or a different kind, as in force on a particular day or as in force for the time being. (4) This section operates only to limit the amount of the legal expenses that are authorised to be met out of property that is subject to a restraining order and does not limit or otherwise affect any entitlement of an Australian legal practitioner to be paid or to recover for a legal service any amount that exceeds any applicable maximum. 17 Order for taxation of legal expenses (1) If a restraining order makes provision for meeting a person's reasonable legal expenses— (a) the Commission, or (b) the NSW Trustee and Guardian if the order provides for the NSW Trustee and Guardian to take control of an interest in the property, may apply to the Supreme Court for an order under this section. (2) The NSW Trustee and Guardian or the Commission must give to the person notice of an application under this section. (3) On an application under this section, the Court must order that the expenses be taxed as provided in the order. (4) After an application is made for an order under this section, the NSW Trustee and Guardian need not, except as ordered by the Court, take any steps for the purpose of meeting the expenses as provided by the restraining order unless and until— (a) an order under this section in relation to the expenses is complied with, or (b) the application, and any appeal arising out of it, are finally determined, or otherwise disposed of, otherwise than by the making of such an order. 18, 19 (Repealed) 20 Effect on restraining order of refusal to make confiscation order (1) If, while a restraining order is in force, the Supreme Court does not make an assets forfeiture order or an order under section 31A in respect of interests in property to which the restraining order relates or a proceeds assessment order, an unexplained wealth order or an order under section 31B in respect of any person whose interests in property are affected by the restraining order, the Court may— (a) if it considers it appropriate, make an order in relation to the period for which the restraining order is to remain in force, and (b) make such other order or orders as it considers appropriate in relation to the operation of the restraining order. (2) An order under subsection (1) may be made to take effect— (a) forthwith, or (b) at a specified time, or (c) on the happening of a specified event. 21 (Repealed) Part 3 Confiscation Division 1A Administrative forfeiture of certain property Subdivision 1 Preliminary 21A Definitions In this Division— claimant—see section 21G(3). dispute period of an assets forfeiture notice means— (a) a period of 60 days after the publication of the notice, or (b) a longer period specified in the notice by the Commission. final notice—see section 21F(2). investigative agency has the same meaning as in the Crime Commission Act 2012. property means— (a) property seized or otherwise in the possession of an investigative agency, or held on behalf of an investigative agency, in connection with an investigation carried out by the investigative agency or another investigative agency, and (b) does not include real property. 21B Review of Division (1) The Minister must review this Division to determine whether— (a) the policy objectives of the provisions remain valid, and (b) the terms of the provisions remain appropriate for securing those objectives. (2) The review must be undertaken as soon as possible after the period of 3 years from the commencement of this Division. (3) A report on the outcome of the review must be tabled in each House of Parliament within 12 months after the end of the period of 3 years. Subdivision 2 Issue of assets forfeiture notice 21C Commission may issue assets forfeiture notice (1) The Commission may issue a notice of intention to forfeit property (an assets forfeiture notice) if reasonably satisfied the interest in the property is one or more of the following kinds— (a) an interest in property of a person suspected of engaging in serious crime related activity, whether or not a particular person is suspected of engaging in the serious crime related activity, (b) an interest in property suspected of being serious crime derived property because of serious crime related activity, (c) an interest in property held in a false name and suspected to be fraudulently acquired property that is illegally acquired property, (d) an interest in property suspected of being— (i) an available interest relating to serious crime use property, or (ii) an interest capable of being the subject of a substituted serious crime use property declaration in relation to the serious crime related activity concerned. (2) The Commission must give the notice— (a) to each person the Commission knows or reasonably suspects has a beneficial interest in the property, and (b) in accordance with the regulations. (3) The notice must include the following information— (a) a description of the property, (b) the grounds on which the property is held by the relevant investigative agency, including the details of the seizure, (c) the grounds on which the Commission has issued the notice, (d) information about how to dispute the forfeiture, including the dispute period. (4) The notice must be published, as soon as practicable after the notice is issued— (a) in the Gazette, and (b) in a daily newspaper circulating throughout New South Wales, and (c) in the way approved by the Commission. (5) In this section— substituted serious crime use property declaration has the same meaning as in section 22AA(2). 21D Commission must notify investigative agency in possession of property (1) The Commission must, as soon as practicable after issuing an assets forfeiture notice in relation to property, give written notice to— (a) the investigative agency in possession of the property, and (b) if the property is being held by another person on behalf of the investigative agency—the other person. (2) The notice must direct the investigative agency or the other person— (a) to continue to hold the property, or (b) to transfer the property to the NSW Trustee and Guardian. (3) A notice directing the investigative agency or other person to hold the property has the effect of authorising the agency or other person to hold the property until— (a) the forfeiture occurs, or (b) the property is required to be returned under this Division. (4) If the Commission directs the investigative agency or other person to transfer the property to the NSW Trustee and Guardian, the Commission must, by written notice, direct the NSW Trustee and Guardian to take control of the property until— (a) the forfeiture occurs, or (b) the property is required to be returned under this Division. 21E Commission may order sale during dispute period (1) The Commission may, during the dispute period of an assets forfeiture notice, direct the person or investigative agency in possession of the property to which the notice relates to sell an interest in the property if— (a) the property is subject to waste or substantial loss of value, or (b) in the opinion of the NSW Trustee and Guardian, the cost of controlling the interest during the dispute period would exceed the value of the interest, or (c) the retention of the property would constitute a danger to— (i) public health and safety, or (ii) the health of other animals, plants or agricultural produce because the property is a live animal, or (iii) public health because the property is perishable or a live animal. (2) The proceeds of the sale of an interest in the property must be held by the person or investigative agency until— (a) the forfeiture occurs, or (b) the property is required to be returned under this Division. 21F Effect of assets forfeiture notice (1) An assets forfeiture notice takes effect— (a) immediately after the end of the dispute period, or (b) if a dispute claim is made—on the day the dispute claim is finally dismissed and the right of appeal under section 21I is exhausted. (2) The Commission must, as soon as practicable after an assets forfeiture notice takes effect, give written notice of the forfeiture (a final notice) to— (a) each person who was given a notice under section 21C, and (b) a person who made a dispute claim in relation to the notice. (3) On an assets forfeiture notice taking effect in relation to an interest in property— (a) the interest is forfeited to the Crown and vests in the NSW Trustee and Guardian on behalf of the Crown, and (b) if the person forfeiting the interest was in, or entitled to, possession of the property—the NSW Trustee and Guardian may take possession of the property on behalf of the Crown. (4) An interest forfeited under this section must be disposed of by the NSW Trustee and Guardian in accordance with the directions of the Treasurer. (5) The proceeds must be— (a) paid to the Treasurer, and (b) credited to the Proceeds Account. (6) The Treasurer may delegate the power to give directions under this section. Subdivision 3 Dispute claims and appeals 21G Making of dispute claim (1) A person may make a dispute claim in relation to an assets forfeiture notice during the dispute period of the notice. (2) The dispute claim must be made in writing to the Commission. (3) The dispute claim must include the following information— (a) the name, date of birth and address of the person making the claim (the claimant), (b) the basis of the claim, including t