South Australia: Criminal Assets Confiscation Act 2005 (SA)

South Australia Criminal Assets Confiscation Act 2005 An Act to provide for the confiscation of proceeds and instruments of crime; to provide for the confiscation of property of certain drug offenders as an additional punishment for their offending; and for other purposes. Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Meaning of abscond 5 Meaning of convicted of an offence 6 Meaning of effective control 6A Meaning of prescribed drug offender 7 Meaning of proceeds and instrument of an offence 8 Meaning of quashing a conviction 8A Certain property and benefits not subject to proceedings under Act 9 Act binds Crown 10 Application of Act 11 Interaction with other Acts 11A Application of Personal Property Securities Act 12 Corresponding laws 13 Delegation 14 Jurisdiction of Magistrates Court Part 2—Freezing orders 15 Interpretation 16 Commissioner may authorise police officers for purposes of Part 17 Authorised police officer may apply for freezing order 18 Urgent applications 19 Notice of freezing order to be given to financial institution 20 Effect of freezing order 21 Duration of freezing order 22 Failure to comply with freezing order 23 Offence to disclose existence of freezing order Part 3—Restraining orders Division 1—Restraining orders 24 Restraining orders 25 Notice of application 26 Refusal to make an order for failure to give undertaking 27 Order allowing expenses to be paid out of restrained property 28 Excluding property from or revoking restraining orders in certain cases when expenses are not allowed Division 2—Giving effect to restraining orders 29 Notice of a restraining order 30 Registering restraining orders 31 Notifying registration authorities of exclusions from or variations to restraining orders 32 Court may set aside a disposition contravening a restraining order 33 Contravening restraining orders Division 3—Excluding property from restraining orders 34 Court may exclude property from restraining order 35 Application to exclude property from a restraining order after notice of the application for the order 36 Application to exclude property from a restraining order after notice of the order 37 Application not to be heard unless DPP has had reasonable opportunity to conduct an examination 38 Giving security etc to exclude property from a restraining order Division 4—Further orders 39 Court may order Administrator to take custody and control of property 40 Ancillary orders 41 Contravening ancillary orders relating to foreign property Division 5—Duration of restraining orders 42 When a restraining order comes into force 43 Application to revoke a restraining order 44 Giving security etc to revoke a restraining order 45 Notice of revocation of a restraining order 46 Cessation of restraining orders Part 4—Forfeiture Division 1—Forfeiture orders Subdivision 1—Forfeiture orders 47 Forfeiture orders 48 Instrument substitution declarations 49 Additional application for a forfeiture order 50 Notice of application 51 Procedure on application 52 Amending an application 53 Forfeiture orders can extend to other interests in property 54 Forfeiture orders must specify the value of forfeited property 55 Declaration by court in relation to buying back interests in forfeited property 56 Court may make supporting directions Subdivision 1A—Deemed forfeiture orders 56A Prescribed drug offenders 56B Court may declare that property has been forfeited under this Subdivision Subdivision 2—Reducing the effect of forfeiture orders 57 Relieving certain dependants from hardship 58 Making exclusion orders before forfeiture order made 59 Making exclusion orders after forfeiture 59A Exclusion orders based on cooperation with law enforcement agency 59B Exclusion orders based on financial interests of Crown etc 60 Applying for exclusion orders 61 Making compensation orders 62 Applying for compensation orders 62A No exclusion or compensation where forfeiture taken into account in sentencing Subdivision 3—The effect of acquittals and quashing of convictions 63 Certain forfeiture orders unaffected by acquittal or quashing of conviction 64 Discharge of conviction based forfeiture order on quashing of conviction 65 Notice of application for confirmation of forfeiture order 66 Procedure on application for confirmation of forfeiture order 67 Court may confirm forfeiture order 68 Effect of court's decision on confirmation of forfeiture order 69 Administrator must not deal with forfeited property before the court decides on confirmation of forfeiture order 70 Giving notice if a forfeiture order is discharged on appeal or by quashing of a conviction 71 Returning property etc following the discharge of a forfeiture order Subdivision 4—Buying back interests in forfeited property etc 72 A person may buy back interest in forfeited property 73 A person may buy out another person's interest in forfeited property Division 2—Forfeiture on conviction of a serious offence Subdivision 1—Forfeiture on conviction of a serious offence 74 Forfeiting restrained property without forfeiture order if person convicted of serious offence 75 Extended period 76 Excluding property from forfeiture under this Division 76AA Excluding property based on cooperation with law enforcement agency 76A No exclusion where forfeiture taken into account in sentencing 77 Court may declare that property has been forfeited under this Division Subdivision 2—Recovery of forfeited property 78 Court may make orders relating to transfer of forfeited property etc 79 Court may make orders relating to buying back forfeited property 80 Applying for orders under sections 78 and 79 81 A person may buy back interest in forfeited property 82 A person may buy out another person's interest in forfeited property Subdivision 3—The effect of acquittals and quashing of convictions 83 The effect on forfeiture of convictions being quashed 84 Notice of application for confirmation of forfeiture 85 Procedure on application for confirmation of forfeiture 86 Court may confirm forfeiture 87 Effect of court's decision on confirmation of forfeiture 88 Administrator must not deal with forfeited property before the court decides on confirmation of forfeiture 89 Giving notice if forfeiture ceases to have effect on quashing of a conviction Division 3—Forfeited property 90 What property is forfeited and when 91 When the Crown can begin dealing with property specified in a forfeiture order 92 When the Crown can begin dealing with property forfeited under section 74 93 How forfeited property must be dealt with 94 Dealings with forfeited property Part 5—Other confiscation orders Division 1—Pecuniary penalty orders Subdivision 1—Pecuniary penalty orders 95 Making pecuniary penalty orders 96 Additional application for pecuniary penalty order 97 Pecuniary penalty orders made in relation to serious offence convictions 98 Making of pecuniary penalty order if person has absconded 98A Property subject to a person's effective control Subdivision 2—Pecuniary penalty order amounts 99 Determining penalty amounts 100 Evidence the court is to consider in assessing the value of benefits 101 Value of benefits derived 102 Value of benefits may be as at time of assessment 103 Matters that do not reduce the value of benefits 104 Benefits and instruments already the subject of pecuniary penalty 106 Effect of property vesting in an insolvency trustee 107 Reducing penalty amounts to take account of forfeiture and proposed forfeiture 108 Reducing penalty amounts to take account of fines etc 109 Varying pecuniary penalty orders to increase penalty amounts Division 2—Literary proceeds orders Subdivision 1—Literary proceeds orders 110 Meaning of literary proceeds 111 Making literary proceeds orders 112 Matters taken into account in deciding whether to make literary proceeds orders Subdivision 2—Literary proceeds amounts 113 Determining literary proceeds amounts 114 Deductions from literary proceeds amounts 115 Varying literary proceeds orders to increase literary proceeds amounts Subdivision 3—Literary proceeds amounts may cover future literary proceeds 116 Literary proceeds orders can cover future literary proceeds 117 Enforcement of literary proceeds orders in relation to future literary proceeds Division 3—Matters generally applicable to orders under this Part Subdivision 1—Applications for confiscation orders under this Part 118 Notice of application 119 Amending an application Subdivision 2—Ancillary orders 120 Ancillary orders Subdivision 3—Reducing pecuniary penalty amount or literary proceeds amount 121 Reducing penalty amounts and literary proceeds amounts to take account of tax paid Subdivision 4—Enforcement 122 Enforcement of confiscation orders under this Part 123 Property subject to a person's effective control Subdivision 5—Effect of acquittals and quashing of convictions 124 Acquittals do not affect confiscation orders under this Part 125 Discharge of confiscation order under this Part if made in relation to a conviction 126 Confiscation order under this Part unaffected if not made in relation to a conviction 127 Notice of application for confirmation of confiscation order under this Part 128 Procedure on application for confirmation of confiscation order under this Part 129 Court may confirm confiscation order under this Part 130 Effect of court's decision on confirmation of confiscation order under this Part Part 6—Information gathering Division 1—Examinations Subdivision 1—Examination orders 131 Examination orders relating to restraining orders 132 Examination orders relating to applications for confirmation of forfeiture Subdivision 2—Examination notices 133 Examination notices 134 Form and content of examination notices Subdivision 3—Conducting examinations 135 Time and place of examination 136 Requirements made of person examined 137 Examination to take place in private 138 Role of the examinee's legal practitioner during examination 139 Record of examination 140 Questions of law 141 DPP may restrict publication of certain material 142 Protection of DPP etc Subdivision 4—Offences 143 Failing to attend an examination 144 Offences relating to appearance at an examination 145 Self-incrimination 146 Unauthorised presence at an examination 147 Breaching conditions on which records of statements are provided 148 Breaching directions preventing or restricting publication Division 2—Production orders 149 Interpretation 150 Making production orders 151 Contents of production orders 152 Powers under production orders 153 Retaining produced documents 154 Self-incrimination 155 Varying production orders 156 Making false statements in applications 157 Disclosing existence or nature of production orders 158 Failing to comply with a production order 159 Destroying etc a document subject to a production order Division 3—Notices to financial institutions 160 Giving notices to financial institutions 161 Immunity from liability 162 Making false statements in notices 163 Disclosing existence or nature of notice 164 Failing to comply with a notice Division 4—Monitoring orders 165 Making monitoring orders 166 Contents of monitoring orders 167 Immunity from liability 168 Making false statements in applications 169 Disclosing existence or operation of monitoring order 170 Failing to comply with monitoring order Division 5—Search and seizure Subdivision 1—Preliminary 171 Interpretation Subdivision 2—Search warrants 172 Warrants authorising seizure of property 173 Applications for warrants 174 Powers conferred by warrant 175 Hindering execution of warrant 176 Person with knowledge of a computer or a computer system to assist access etc 177 Providing documents after execution of a search warrant Subdivision 3—Seizure without warrant 178 Seizure without warrant allowed in certain circumstances 179 Stopping and searching vehicles Subdivision 4—Dealing with material liable to seizure under this Act 180 Receipts for material seized 181 Responsibility for material seized 182 Effect of obtaining forfeiture orders 183 Returning seized material 184 Magistrate may order that material be retained 185 Return of seized material to third parties 186 Return of seized material if applications are not made for restraining orders or forfeiture orders 187 Effect of obtaining restraining orders 188 Effect of refusing applications for restraining orders or forfeiture orders Subdivision 5—Miscellaneous 189 Making false statements in applications Part 7—Administration Division 1—Powers and duties of the Administrator Subdivision 1—Preliminary 190 Appointment of Administrator 191 Property to which the Administrator's powers and duties under this Division apply Subdivision 2—Obtaining information about controlled property 192 Access to documents 193 Suspect to assist Administrator 194 Power to obtain information and evidence 195 Self-incrimination 196 Failure of person to attend 197 Refusal to be sworn or give evidence etc Subdivision 3—Dealings relating to controlled property 198 Preserving controlled property 199 Rights attaching to shares 200 Destroying or disposing of property 201 Objection to proposed destruction or disposal 202 Procedure if person objects to proposed destruction or disposal 203 Proceeds from sale of property Subdivision 4—Discharging pecuniary penalty orders and literary proceeds orders 204 Direction by a court to the Administrator 205 Administrator not to carry out directions during appeal periods 206 Discharge of pecuniary penalty orders and literary proceeds orders Division 2—Legal assistance 207 Payments to Legal Services Commission for representing suspects and other persons 208 Disclosure of information to Legal Services Commission Division 3—Credits to funds 209 Credits to Victims of Crime Fund 209A Credits to Justice Rehabilitation Fund Division 3A—National cooperative scheme on unexplained wealth 209B Interpretation 209C Application of Division—National Cooperative Scheme 209D Notification of shareable proceeds 209E Contribution by foreign jurisdiction 209F Net amount 209G CJC subcommittee 209H Payment to contributing non-participating State 209I Payment to contributing CJC members 209J Payment period 209K Payment to Victims of Crime Fund or Justice Rehabilitation Fund Division 4—Charges on property Subdivision 1—Charge to secure certain amounts payable to the Crown 210 Charge on property subject to restraining order Subdivision 2—Charge to secure certain amounts payable to Legal Services Commission 211 Legal Services Commission charges Subdivision 3—Registering and priority of charges 212 Charges may be registered 213 Priority of charges Part 8—Miscellaneous 214 Authorised officers to be issued identity cards 216 Manner of giving notices etc 217 Registration of orders made under corresponding laws 218 Certain proceedings to be civil 219 Consent orders 220 Onus and standard of proof 221 Applications to certain courts 222 Proof of certain matters 223 Stay of proceedings 224 Effect of confiscation scheme on sentencing 225 Deferral of sentencing pending determination of confiscation order 226 Appeals 227 Costs and exemplary or punitive damages 228 Interest 229 Effect of a person's death 229A Annual report relating to prescribed drug offenders 230 Regulations Schedule 1—Transitional provisions Part 7—Transitional provisions 11 Transitional provision Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Criminal Assets Confiscation Act 2005. 3—Interpretation (1) In this Act, unless the contrary intention appears— abscond—see section 4; account means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for— (a) a fixed term deposit; and (b) a safety deposit box or other safe custody facility; Administrator means the person appointed as the Administrator under section 190; agent includes, if the agent is a corporation, the officers and agents of the corporation; Australia, when used in a geographical sense, includes the external Territories; authorised officer means— (a) the DPP; or (b) a police officer; or (c) a member, officer or employee of an enforcement agency who is authorised in writing by the head of that agency for the purposes of this Act; benefit includes a service or advantage; charged—a person is charged with an offence if an information or complaint is laid against the person for the offence whether or not— (a) a summons to require the attendance of the person to answer the information or complaint has been issued; or (b) a warrant for the arrest of the person has been issued; compensation order means an order made under section 61; confiscation order means a forfeiture order, a pecuniary penalty order or a literary proceeds order; controlled property means property subject to an order under section 39; convicted—see section 5; conviction day—see section 5; conviction offence, in relation to a prescribed drug offender, has the meaning given in section 6A; corresponding law means a law declared to be a corresponding law under section 12; court means— (a) the Supreme Court; or (b) the District Court; or (c) subject to section 14, the Magistrates Court; data includes data in any form in which it may be stored or processed in a computer (including a computer program or part of a computer program); data storage device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device; deal with—dealing with a person's property includes— (a) if a debt is owed to the person—making a payment to a person in reduction of the amount of the debt; and (b) removing the property from the State; and (c) receiving or making a gift of the property; and (d) if the property is covered by a restraining order—engaging in a transaction that has the direct or indirect effect of reducing the value of the person's interest in the property; dependant of a person means— (a) a spouse or domestic partner of the person; or (b) a child of the person who depends on the person for support; or (c) a member of the person's household who depends on the person for support; derived—a person derives proceeds, a benefit or literary proceeds if — (a) the person; or (b) another person at the request or direction of the first person, derives the proceeds, benefit or literary proceeds, whether directly or indirectly; director, in relation to a financial institution or a corporation, means— (a) if the institution or corporation is a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory—a constituent member of the body corporate; and (b) any person occupying or acting in the position of director of the institution or corporation, by whatever name called and whether or not validly appointed to occupy, or duly authorised to act in, the position; and (c) any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act, other than when those directors only do so— (i) in the proper performance of the functions attaching to the person's professional capacity; or (ii) in their business relationship with the person; document includes— (a) any paper or other material on which there is writing; and (b) any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and (c) any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device; and (d) any map, plan, drawing, graph or photograph; domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not; DPP means the Director of Public Prosecutions and includes a person acting in the position of Director of Public Prosecutions; drug means a substance that is a controlled drug within the meaning of the Controlled Substances Act 1984; effective control—see section 6; encumbrance, in relation to property, includes any interest, mortgage, charge, right, claim or demand in respect of the property; enforcement agency means— (a) the DPP; or (b) an agency prescribed by regulation as an enforcement agency for the purposes of this Act or specified provisions of this Act; examination notice means a notice given under section 133; examination order means an order under section 131 or 132 that is in force; exclusion order means an order under section 58 or 59; executive officer in relation to a financial institution or a corporation, means any person, by whatever name called and whether or not the person is a director of the institution or corporation, who is concerned, or takes part, in the management of the institution or corporation; financial institution means— (a) an ADI; or (b) a friendly society; or (c) an institution of a kind declared by regulation to be a financial institution; foreign forfeiture order has the same meaning as in the Mutual Assistance Act; foreign offence includes an offence against international law; foreign pecuniary penalty order has the same meaning as in the Mutual Assistance Act; foreign restraining order has the same meaning as in the Mutual Assistance Act; forfeiture order means an order under section 47 that is in force; freezing order means an order under section 17 that is in force; instrument—see section 7; instrument substitution declaration means a declaration under section 48; interest, in relation to property or a thing, means— (a) a legal or equitable estate or interest in the property or thing; or (b) a right, power or privilege in connection with the property or thing, whether present or future and whether vested or contingent; legal assistance costs means the costs of providing legal assistance to an assisted person under the Legal Services Commission Act 1977 (see section 5(2) of that Act); literary proceeds—see section 110; literary proceeds amount—see section 113; literary proceeds order means an order under section 111 that is in force; monitoring order means an order under section 165 that is in force; Mutual Assistance Act means the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth as in force from time to time; officer, in relation to a financial institution or a corporation, means a director, secretary, executive officer or employee; pecuniary penalty order means an order under section 95 that is in force; penalty amount—see section 99; premises means a building, structure or place (whether built on or not and whether enclosed or unenclosed) and includes an aircraft, vessel or vehicle; prescribed drug offender—see section 6A; proceeds—see section 7; production order means an order under section 150 that is in force; property means real or personal property (tangible or intangible) including— (a) a chose in action; and (b) an interest in property; property-tracking document—see section 149; protected property of a person means property owned by or subject to the effective control of the person that is of a class declared by regulation for the purposes of this definition; quashed—see section 8; reciprocating State means a State or Territory in which a corresponding law is in force; recognised Australian forfeiture order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition; recognised Australian pecuniary penalty order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition; recognised Australian restraining order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition; registrable property means property the title to which is passed by registration on a register kept pursuant to a provision of a law of the State or any other law; registration authority means an authority responsible for administering a law providing for registration of title to, or charges over, property of a particular kind; related offence—an offence is related to another offence if the physical elements of the 2 offences are substantially the same acts or omissions; responsible custodian, in relation to property or other material seized under this Act, means— (a) if the property or other material is seized by the DPP—the DPP; or (b) in any other case—the head of the enforcement agency of the authorised officer who seized the property or other material; restraining order means an order under section 24 that is in force; search warrant means a warrant issued under section 172 that is in force; serious and organised crime has the same meaning as in the Australian Crime Commission (South Australia) Act 2004; serious offence means— (a) an indictable offence; or (c) an offence against— (i) section 68(3) of the Criminal Law Consolidation Act 1935; or (ii) an offence against section 52, 53, 72 or 74 of the Fisheries Management Act 2007; or (iii) section 99 of the Liquor Licensing Act 1997; or (iv) a provision of the Lottery and Gaming Act 1936; or (v) section 47, 48, 48A, 51 or 60 of the National Parks and Wildlife Act 1972; or (vi) section 28(1)(a) or 41 of the Summary Offences Act 1953; or (d) a foreign offence declared by the regulations to be within the ambit of this definition; spouse—a person is the spouse of another if they are legally married; sufficient consideration, in relation to an acquisition or disposal of property, means consideration that is sufficient and that reflects the value of the property, having regard solely to commercial considerations; suspect, in relation to a restraining order or a confiscation order, means a person who— (a) has been convicted of; or (b) has been charged with, or is proposed to be charged with; or (c) if the order is a restraining order—is suspected of having committed; or (d) if the order is a confiscation order—committed, the offence or offences to which the order relates; tainted property means— (a) proceeds of a serious offence; or (b) an instrument of a serious offence or property subject to an instrument substitution declaration; or (c) property owned by, or subject to the effective control of, a prescribed drug offender on the conviction day for the conviction offence (other than protected property of the prescribed drug offender); or (d) property owned by, or subject to the effective control of, a person who has been charged with, or is proposed to be charged with, an offence where the person would, if convicted of the offence, become a prescribed drug offender (other than protected property of the person); unlawful activity means an unlawful act or omission— (a) that constitutes a serious offence; or (b) that would, if committed in this State, constitute a serious offence; vehicle includes an aircraft or vessel; Victims of Crime Fund means the fund of that name continued in existence under the Victims of Crime Act 2001. (2) A reference in this Act to an indictable offence includes an indictable offence of a kind that is required to be prosecuted, and dealt with by the Magistrates Court, as a summary offence under a provision of any Act. 4—Meaning of abscond (1) For the purposes of this Act, a person is taken to abscond in connection with an offence if— (a) an information or complaint is laid alleging the person committed the offence; and (b) a warrant for the person's arrest is issued in relation to that information or complaint; and (c) at the end of the period of 6 months commencing on the day on which the warrant is issued either— (i) the person— (A) cannot be found; or (B) is, for any other reason, not amenable to justice and, if the person is in a jurisdiction outside Australia, extradition proceedings are not on foot in that jurisdiction; or (ii) — (A) the person is, because he or she is in a jurisdiction outside Australia, not amenable to justice; and (B) extradition proceedings are on foot in that jurisdiction, and subsequently those proceedings terminate without an order for the person's extradition being made. (2) For the purposes of subsection (1), extradition proceedings are not taken to be on foot in a jurisdiction unless the person is in custody, or is on bail, in that jurisdiction. 5—Meaning of convicted of an offence (1) For the purposes of this Act, a person is taken to be convicted of an offence if— (a) the person is convicted, whether summarily or on indictment, of the offence (and in such a case the conviction day for the purposes of this Act is the day on which the person was convicted, whether or not the court passed sentence on that day); or (b) the person is charged with, and found guilty of, the offence but is discharged without conviction (and in such a case the conviction day for the purposes of this Act is the day on which the person was discharged without conviction); or (c) a court, with the consent of the person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another offence (and in such a case the conviction day for the purposes of this Act is the day on which the court took the offence into account in passing the sentence); or (d) the person absconds in connection with the offence (and in such a case the conviction day for the purposes of this Act is the day on which the person is taken to have absconded); or (e) a court has, under Part 8A Division 2 of the Criminal Law Consolidation Act 1935, recorded findings that— (i) the person is mentally incompetent to commit the offence; and (ii) the objective elements of the offence are established, (and in such a case the conviction day for the purposes of this Act is the day on which the court recorded those findings or, if those findings were recorded on different days, the later of the days); or (f) a court has, under Part 8A Division 3 of the Criminal Law Consolidation Act 1935, recorded findings that— (i) the person is mentally unfit to stand trial on a charge of the offence; and (ii) the objective elements of the offence are established, (and in such a case the conviction day for the purposes of this Act is the day on which the court recorded those findings or, if those findings were recorded on different days, the later of the days). (2) If subsection (1)(d), (1)(e) or (1)(f) applies to a person, the person is taken— (a) to have committed the offence; and (b) to have been convicted of the offence before an appropriate court. 6—Meaning of effective control (1) For the purposes of this Act, the following principles apply when determining whether property is subject to the effective control of a person: (a) property may be subject to the effective control of a person whether or not the person has an interest in the property; (b) property that is held on trust for the ultimate benefit of a person is taken to be subject to the effective control of the person; (c) if a person is one of 2 or more beneficiaries under a discretionary trust, the following undivided proportion of the trust property is taken to be subject to the effective control of the person: (d) if property is initially owned by a person and, within 6 years (whether before or after) of— (i) an application for a restraining order or a confiscation order being made; or (ii) the person becoming a prescribed drug offender, is disposed of to another person without sufficient consideration, then the property is taken still to be subject to the effective control of the first person; (e) property may be subject to the effective control of a person even if one or more other persons have joint control of the property. (2) In determining whether or not property is subject to the effective control of a person, regard may be had to— (a) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property; and (b) a trust that has a relationship to the property; and (c) family, domestic and business relationships between 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), and other persons. 6A—Meaning of prescribed drug offender (1) For the purposes of this Act, a person is a prescribed drug offender if the person is convicted of a serious drug offence (the conviction offence) committed after the commencement of this section and— (a) the conviction offence is a commercial drug offence; or (b) the person has at least 2 other convictions for prescribed drug offences and those offences and the conviction offence were all committed on separate occasions within a period of 10 years, not including any period during which the person was in government custody. (2) A conviction may be taken into account for the purposes of subsection (1)(b)— (a) whether the offence to which the conviction relates was committed before or after the commencement of this section; and (b) whether or not the offence to which the conviction relates has previously been taken into account for the purposes of any proceeding under this Act. (3) In this section— commercial drug offence means— (a) an offence against section 32(1) or (2), section 33(1) or (2), section 33A(1) or (2), section 33B(1) or (2) or section 33C(1) or (2) of the Controlled Substances Act 1984; or (b) an offence against Part 5 Division 3 of the Controlled Substances Act 1984 involving a commercial quantity or large commercial quantity of a controlled drug; detainee means a person who— (a) is detained in a training centre within the meaning of the Young Offenders Act 1993; or (b) is detained as a result of being declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935; external serious drug offence means an offence against a law or former law of the Commonwealth, of another State or of a Territory of a kind prescribed by regulation; government custody means— (a) custody as a prisoner or detainee; or (ab) custody under a home detention order under Part 3 Division 7 Subdivision 1 of the Sentencing Act 2017; or (b) custody under a law of another jurisdiction in the nature of custody referred to in paragraph (a) or (ab); prescribed drug offence means— (a) a serious drug offence; or (b) an offence against a former law of the State of a kind prescribed by regulation; or (c) an external serious drug offence; serious drug offence means an offence against Part 5 Division 2 or 3 of the Controlled Substances Act 1984 that is an indictable offence. 7—Meaning of proceeds and instrument of an offence (1) For the purposes of this Act, the following rules apply when determining whether property is proceeds or an instrument of an offence: (a) property is proceeds of an offence if it is— (i) wholly derived or realised, whether directly or indirectly, from the commission of the offence; or (ii) partly derived or realised, whether directly or indirectly, from the commission of the offence, whether the property is situated within or outside the State; (b) property is an instrument of an offence if it is— (i) used in, or in connection with, the commission of an offence; or (ii) intended to be used in, or in connection with, the commission of an offence, whether the property is situated within or outside the State; (c) property becomes proceeds of an offence or an instrument of an offence (as the case requires) if it is— (i) wholly or partly derived or realised from the disposal of, or other dealing with, proceeds of the offence or an instrument of the offence; or (ii) wholly or partly acquired using proceeds of the offence or an instrument of the offence, including as a result of a previous application of this section; (d) property remains proceeds of an offence or an instrument of an offence even if it is— (i) credited to an account; or (ii) disposed of or otherwise dealt with; (e) property can be proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence. (2) Subject to this section, property only ceases to be proceeds of an offence or an instrument of an offence if— (a) it is acquired by a third party for sufficient consideration without the third party knowing, and in circumstances that would not arouse a reasonable suspicion, that the property was proceeds of an offence or an instrument of an offence (as the case requires); or (b) it vests in a person from the distribution of the estate of a deceased person, having been previously vested in a person from the distribution of the estate of another deceased person while the property was still proceeds of an offence or an instrument of an offence (as the case requires); or (ba) it vests in a person from the distribution of the estate of a deceased person in accordance with the forfeiture rule or a forfeiture modification order under the Forfeiture Act 2024 or otherwise vests in a person pursuant to an order of the Supreme Court under that Act; or (c) it has been distributed in accordance with— (i) an order in proceedings under the Family Law Act 1975 of the Commonwealth with respect to the property of the parties to a marriage or de facto relationship, or either of them; or (ii) a financial agreement or Part VIIIAB financial agreement within the meaning of that Act, and 6 years have elapsed since that distribution; or (d) it has been distributed in accordance with an order in proceedings under the Domestic Partners Property Act 1996 and 6 years have elapsed since that distribution; or (e) it is acquired by a person as payment for reasonable legal expenses incurred in connection with an application under this Act or defending a criminal charge; or (f) a forfeiture order in respect of the property is satisfied; or (g) a recognised Australian restraining order or a recognised Australian forfeiture order is satisfied in respect of the property; or (h) it is otherwise sold or disposed of under this Act; or (i) in any other circumstances specified in the regulations. (3) If— (a) a person once owned property that was proceeds of an offence or an instrument of an offence; and (b) the person ceased to be the owner of the property and (at that time or a later time) the property stopped being proceeds of an offence or an instrument of the offence under subsection (2) (other than under subsection (2)(f)); and (c) the person acquires the property again, then the property becomes proceeds of an offence or an instrument of the offence again (as the case requires). (4) Subsection (2)(c) does not apply if, despite the distribution referred to in that paragraph, the property is still subject to the effective control of a person who— (a) has been convicted of; or (b) has been charged with, or who is proposed to be charged with; or (c) has committed, or is suspected of having committed, the offence in question. 8—Meaning of quashing a conviction For the purposes of this Act, a person's conviction of an offence is taken to be quashed if— (a) if the person is taken to have been convicted of the offence because of section 5(1)(a)—the conviction is quashed or set aside; or (b) if the person is taken to have been convicted of the offence because of section 5(1)(b)—the finding of guilt is quashed or set aside; or (c) if the person is taken to have been convicted of the offence because of section 5(1)(c)—either of the following events occur: (i) the person's conviction of the other offence referred to in that paragraph is quashed or set aside; (ii) the decision of the court to take the offence into account in passing sentence for that other offence is quashed or set aside; or (d) if the person is taken to have been convicted of the offence because of section 5(1)(d)—after the person is brought before a court in respect of the offence, the person is discharged in respect of the offence or a conviction of the person for the offence is quashed or set aside; or (e) if the person is taken to have been convicted of the offence because of section 5(1)(e) or 5(1)(f)—the finding that the objective elements of the serious offence have been established is set aside or reversed. 8A—Certain property and benefits not subject to proceedings under Act (1) Despite any provision of this Act, if an unexplained wealth order has been made against a person, any property or benefits that were taken into account as wealth of the person that was not lawfully acquired for the purposes of that order may not be made the subject of proceedings under this Act for a restraining order or a confiscation order (provided that the person is the suspect for the purposes of those proceedings). (2) In this section— unexplained wealth order means an unexplained wealth order under the Serious and Organised Crime (Unexplained Wealth) Act 2009 or a corresponding unexplained wealth order within the meaning of that Act. 9—Act binds Crown This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, the Crown in all its other capacities, but not so as to impose any criminal liability on the Crown. 10—Application of Act Subject to any express provision to the contrary, this Act applies to— (a) property within or outside the State; and (b) a serious offence committed at any time whether the offence occurred— (i) in the case of a serious offence that is a foreign offence—before or after the foreign offence was declared to be a serious offence under this Act; and (ii) in any case—before or after the commencement of this Act, and whether or not a person is convicted of the offence; and (c) a person's conviction of a serious offence (whether the conviction occurred before or after the commencement of this Act). 11—Interaction with other Acts This Act is in addition to, and does not limit or derogate from, the provisions of any other Act. 11A—Application of Personal Property Securities Act Section 73(2) of the Personal Property Securities Act 2009 of the Commonwealth applies to an interest in property that arises by being created, arising or being provided for under this Act. 12—Corresponding laws The Governor may, by proclamation— (a) declare a law of the Commonwealth, another State or a Territory to be a corresponding law for the purposes of this Act; or (b) vary or revoke a declaration previously made under this section. 13—Delegation (1) The DPP or the Administrator may, by instrument in writing, delegate a power or function under this Act— (a) to a particular person; or (b) to the person for the time being occupying a particular position. (2) A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated. (3) A delegation— (a) may be absolute or conditional; and (b) does not derogate from the power of the delegator to act personally in a matter; and (c) is revocable at will. 14—Jurisdiction of Magistrates Court (1) Despite any provision of the Magistrates Court Act 1991, the Magistrates Court has jurisdiction to hear and determine any application that may be made to a court under this Act unless the application involves property with a value exceeding $300 000. (2) If the Magistrates Court makes an order under this Act requiring a person to pay to any other person, or to the Crown, a monetary amount exceeding the amount specified under the Magistrates Court Act 1991 as the monetary limit on the Court's civil jurisdiction in relation to actions to recover a debt— (a) the Principal Registrar of the Magistrates Court must issue a certificate containing the particulars specified in the regulations in relation to the order; and (b) the certificate may be registered, in accordance with the regulations, in the District Court and, on registration, is enforceable in all respects as a final judgment of the District Court. (3) For the avoidance of doubt, no monetary limit applies in relation to the jurisdiction conferred on a magistrate under Part 2. Part 2—Freezing orders 15—Interpretation In this Part— authorised police officer means a police officer, or a police officer of a class, authorised under section 16. 16—Commissioner may authorise police officers for purposes of Part (1) The Commissioner of Police may authorise— (a) a police officer; or (b) a specified class of police officers, for the purposes of this Part. (2) An authorisation under this section— (a) must be by instrument in writing; and (b) may be subject to conditions specified in the authorisation; and (c) may be varied or revoked at any time by the Commissioner of Police by notice in writing. 17—Authorised police officer may apply for freezing order (1) A magistrate may, on application by an authorised police officer, make an order (a freezing order) that a specified financial institution must not allow any person to make transfers or withdrawals from a specified account or an account of a specified class (except in the manner and circumstances, if any, specified in the order) if satisfied that— (a) there are reasonable grounds to suspect that the person in whose name the account is held or a person who has an interest in that account— (i) has committed, or is about to commit, a serious offence; or (ii) was involved in the commission, or is about to be involved in the commission, of such an offence; or (iii) has derived a benefit, or is about to derive a benefit, from the commission of such an offence; and (b) an application for a restraining order is likely to be made in respect of property in which— (i) the person in whose name the account is held has an interest; or (ii) the person who has an interest in the account has an interest; and (c) it is otherwise appropriate to make the order. (2) In determining whether it is appropriate to make a freezing order, the magistrate— (a) must have regard to any hardship that may reasonably be expected to be caused to any person by the operation of the order; and (b) may have regard to— (i) the amount of money in the account to be frozen; and (ii) whether the account is held in the name of more than one person; and (iii) any other relevant matter. (3) Subject to section 18, the applicant for a freezing order must submit evidence in support of the application in the form of an affidavit. 18—Urgent applications (1) An application for a freezing order may be made by telephone if, in the opinion of the applicant, the order is urgently required and there is not enough time to make the application personally. (2) If an application for a freezing order is made by telephone— (a) the applicant must inform the magistrate— (i) of the applicant's name and rank; and (ii) that he or she is an authorised police officer for the purposes of this Part, and the magistrate, on receiving that information, is entitled to assume, without further inquiry, that the applicant is so authorised; and (b) the applicant must inform the magistrate of the purpose for which the order is required, the grounds on which it is sought and any other information that the magistrate is required to have regard to in considering an application for a freezing order; and (c) if it appears to the magistrate from the information given by the applicant that it would be appropriate to make a freezing order, the magistrate must inform the applicant of the facts that justify, in the magistrate's opinion, the making of the order, and must not proceed to make the order unless the applicant undertakes to make an affidavit verifying those facts; and (d) if the applicant gives such an undertaking, the magistrate may then make the order, noting on the order the facts that justify, in the magistrate's opinion, the making of the order and informing the applicant of the terms of the order; and (e) the applicant must, as soon as practicable after the making of the order, forward to the magistrate an affidavit verifying the facts referred to in paragraph (c); and (f) the magistrate must, as soon as practicable after the making of the order, forward to the applicant a copy of the order. (3) A magistrate who makes an order under this section must file the order, or a copy of the order, and the affidavit verifying the grounds on which the application for the order was made, in the Magistrates Court. 19—Notice of freezing order to be given to financial institution (1) A freezing order issued in relation to an account at a financial institution takes effect on the date and at the time that notice of the order is given to the financial institution in accordance with this section. (2) Notice of a freezing order may be given to a financial institution— (a) by giving the financial institution a copy of the freezing order; or (b) if the applicant for the order was not given a copy of the order at the time the order was made—by giving the financial institution a notice in the prescribed form. (3) If notice of a freezing order is not given to the relevant financial institution within 72 hours after the order was made, the order will be of no force or effect. 20—Effect of freezing order (1) For the purposes of a freezing order, it is irrelevant whether or not money is deposited into the account in relation to which the freezing order was made after the order takes effect. (2) A freezing order does not prevent a financial institution from making withdrawals from an account for the purpose of meeting a liability imposed on the financial institution in connection with that account by any law of the State or the Commonwealth. 21—Duration of freezing order (1) Subject to this section, a freezing order ceases to be in force on— (a) the making of a restraining order in respect of the money in the account; or (b) the expiration of the period of 7 days commencing when the freezing order takes effect, whichever occurs first. (2) An authorised police officer may apply to a magistrate for an extension of the duration of a freezing order. (3) On an application under subsection (2), the magistrate— (a) must have regard to the matters specified in section 17(2)(a) (and may have regard to any matter specified in section 17(2)(b)); and (b) must not extend the duration of the freezing order unless satisfied that an application for a restraining order in respect of the money in the account is to be made or has been made but not yet determined. (4) An extension of the duration of a freezing order issued in relation to an account at a financial institution takes effect on the date and at the time that notice of the extension is given to the financial institution in accordance with this section. (5) Notice of the extension may be given to a financial institution by giving the financial institution a notice in the prescribed form. (6) If the duration of a freezing order is extended in accordance with this section, the freezing order ceases to be in force when the application for the restraining order referred to in subsection (3)(b) has been determined (and if a restraining order is not made in respect of the money in the account, the applicant for the extension must give the financial institution a notice in the prescribed form advising the financial institution of the cessation of the freezing order). 22—Failure to comply with freezing order A financial institution that has been given notice of a freezing order must not, without reasonable excuse, fail to comply with the order. Maximum penalty: $20 000. 23—Offence to disclose existence of freezing order (1) A financial institution that has been given notice of a freezing order made in relation to an account must not, while the order is in force, disclose the existence or operation of the order to any person except— (a) a police officer; or (b) an officer or agent of the financial institution, for the purpose of ensuring that the freezing order is complied with; or (c) a legal practitioner acting for the financial institution, for the purpose of obtaining legal advice or representation in relation to the freezing order; or (d) a person in whose name the account is held or who has an interest in the account. Maximum penalty: $20 000. (2) If the existence of a freezing order is disclosed to a person in accordance with subsection (1)(a), (b) or (c) in the course of the person performing duties as a police officer, an officer or agent of a financial institution or a legal practitioner, the person must not, while the order is in force, disclose to any other person the existence or operation of the order except— (a) for the purpose of performing duties as a police officer, an officer or agent of the financial institution or a legal practitioner (as the case may be); or (b) for the purposes of, or in connection with, legal proceedings; or (c) as otherwise required or authorised by this Act. Maximum penalty: $5 000 or imprisonment for 1 year. (3) A reference in this section to disclosing the existence or operation of a freezing order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the freezing order. Part 3—Restraining orders Division 1—Restraining orders 24—Restraining orders (1) A court must, on application by the DPP, make an order (a restraining order) that specified property must not be disposed of or otherwise dealt with by any person (except in the manner and circumstances, if any, specified in the order) if satisfied that— (a) a person has been convicted of, or has been charged with, a serious offence, or it is proposed that the person be charged with a serious offence; or (b) a person is suspected on reasonable grounds of having committed a serious offence; or (c) there are reasonable grounds to suspect that the property is the proceeds of, or is an instrument of, a serious offence (whether or not the identity of the person who committed the offence is known); or (d) there are reasonable grounds to suspect that a person has committed a serious offence and has derived literary proceeds in relation to the offence. (2) An application for an order under this section must specify the property to which the application relates. (3) The DPP may submit evidence in support of the application in the form of an affidavit. (4) Subject to subsections (5) and (5a) and Division 3, the court must specify in the restraining order all property specified in the application for the order. (5) The court may only specify property in a restraining order made under subsection (1)(a),(b) or (d) if satisfied that there are reasonable grounds to suspect that the property is— (a) in the case of a restraining order made under subsection (1)(a) or (b)— (i) property of the suspect; or (ii) property of another person (whether or not that other person's identity is known) that— (A) is subject to the effective control of the suspect; or (B) is proceeds of, or is an instrument of, the serious offence; or (b) in the case of a restraining order made under subsection (1)(d)— (i) property of the suspect; or (ii) property of another person (whether or not that other person's identity is known) that is subject to the effective control of the suspect. (5a) The court may not specify property in a restraining order that is protected property of a person unless subsection (1)(c) applies to the property. (6) The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with. (7) The court may specify that a restraining order covers property that is acquired by the suspect after the court makes the order. (8) A restraining order may be made subject to conditions. 25—Notice of application (1) Subject to subsection (4), the DPP must— (a) give written notice of an application for a restraining order covering property to— (i) the owner of the property (if the owner is known); and (ii) any other person the DPP reasonably believes may have an interest in the property; and (b) include with the notice a copy of the application and— (i) in the case of the owner—any affidavit supporting the application; or (ii) in any other case—a notice that the person may request the DPP give the person a copy of any affidavit supporting the application. (2) The DPP must comply with a request referred to in subsection (1)(b)(ii) as soon as practicable. (3) Subject to subsection (4), a court must not hear an application unless it is satisfied that the owner of the property to which the application relates has received reasonable notice of the application. (4) A court may, if the DPP requests, consider the application without notice having been given under subsection (1). (5) A court may, at any time before finally determining the application— (a) direct the DPP to give or publish notice of the application to a specified person or class of persons; and (b) specify the time and manner in which the notice is to be given or published. (6) A person who claims an interest in property may appear and adduce evidence at the hearing of the application. (7) A witness who is giving evidence relating to an application for a restraining order is not required to answer a question or produce a document if the court is satisfied that the answer or document may prejudice the investigation of, or the prosecution of a person for, an offence. 26—Refusal to make an order for failure to give undertaking (1) A court may refuse to make a restraining order if the Crown refuses or fails to give the court an appropriate undertaking with respect to the payment of damages or costs, or both, for the making and operation of the order. (2) The DPP may give such an undertaking on behalf of the Crown. 27—Order allowing expenses to be paid out of restrained property (1) A court that has made a restraining order may (when the restraining order is made or at a later time) order that one or more of the following may be met out of property, or a specified part of property, covered by the restraining order: (a) the reasonable living expenses of the person whose property is restrained; (b) the reasonable living expenses of any of the dependants of that person; (c) the reasonable business expenses of that person; (d) a specified debt incurred in good faith by that person. (2) The court may only make an order under subsection (1) if— (a) the person whose property is restrained has applied for the order; and (b) the person has notified the DPP, in writing, of the application and the grounds for the application; and (c) the person has disclosed all of his or her interests in property, and his or her liabilities, in a statement on oath that has been filed in the court; and (d) the court is satisfied that the expense or debt does not, or will not, relate to legal costs that the person has incurred, or will incur, in connection with— (i) proceedings under this Act; or (ii) proceedings for an offence against a law of the Commonwealth, a State or a Territory; and (e) the court is satisfied that the person cannot meet the expense or debt out of property that is not covered by— (i) a restraining order; or (ii) a recognised Australian restraining order; or (iii) a foreign restraining order that is registered under the Mutual Assistance Act. (3) Property that is covered by— (a) a restraining order; or (b) a recognised Australian restraining order; or (c) a foreign restraining order that is registered under the Mutual Assistance Act, is taken, for the purposes of subsection (2)(e), not to be covered by the order if it would not be reasonably practicable for the Administrator to take custody and control of the property. 28—Excluding property from or revoking restraining orders in certain cases when expenses are not allowed (1) If— (a) because of the operation of section 27(3), property that is covered by a restraining order is taken for the purposes of section 27(2)(e) not to be covered by the order; and (b) as a result, and for no other reason, the court refuses an application to make an order under section 27(1), the court may— (c) exclude the property from the restraining order; or (d) if the property is the only property covered by the restraining order—revoke the restraining order. (2) The court must not exclude the property or revoke the order unless satisfied that the property is needed to meet one or more of the following: (a) the reasonable living expenses of the person whose property is restrained; (b) the reasonable living expenses of any of the dependants of that person; (c) the reasonable business expenses of that person; (d) a specified debt incurred in good faith by that person. (3) If the court excludes the property from, or revokes, the restraining order, the DPP must give written notice of the exclusion or revocation to— (a) the owner of the property (if the owner is known); and (b) any other person the DPP reasonably believes may have an interest in the property, however, the DPP need not give notice to the applicant for the order under section 27(1). Division 2—Giving effect to restraining orders 29—Notice of a restraining order (1) If a court makes a restraining order covering property, the DPP must give written notice of the order to the owner of the property. (2) The DPP must, if the documents have not already been given to the owner, include with the notice— (a) a copy of the application; and (b) a copy of any affidavit supporting the application. (3) However, the court may, at the request of the DPP, order— (a) that all or part of the application or affidavit is not to be given to the owner; or (b) that the DPP delay giving the notice (and any documents required to be included with the notice) for a specified period, if the court considers it appropriate in order to protect the integrity of any investigation or prosecution. (4) If the court orders the DPP to delay giving the notice (and the documents required to be included with the notice) for a specified period, the DPP must give the notice or documents as soon as practicable after the end of the period. 30—Registering restraining orders (1) A registration authority that keeps a register of property of a particular kind must, on the application of the DPP, record in the register particulars of a restraining order covering property of that kind. (2) If particulars of a restraining order covering property are recorded in a register in accordance with this section, each person who subsequently deals with the property is, in the absence of evidence to the contrary— (a) taken not to be acting in good faith for the purposes of section 32; and (b) taken to have notice of the restraining order for the purposes of section 33. 31—Notifying registration authorities of exclusions from or variations to restraining orders (1) If the DPP has made an application to a registration authority under section 30 in relation to particular property, the DPP must notify the registration authority if— (a) the property is no longer covered by the order because— (i) it is excluded from the order under section 34; or (ii) the property covered by the order is varied under section 40; or (b) a condition to which a restraining order is subject is varied under section 40. (2) A registration authority must, on being notified under subsection (1), vary the record of the restraining order made under section 30 accordingly. 32—Court may set aside a disposition contravening a restraining order (1) The DPP may apply to the court to set aside a disposition or dealing with property that contravenes a restraining order if that disposition or dealing was— (a) not for sufficient consideration; or (b) not in favour of a person who acted in good faith. (2) The DPP must give, to each party to the disposition or dealing, written notice of both the application and the grounds on which it seeks the setting aside of the disposition or dealing. (3) On an application under this section the court may— (a) set aside the disposition or dealing from the day it occurred; or (b) set aside the disposition or dealing from the day on which the order is made and declare the rights of any persons who acquired interests in the property on or after the day of the disposition or dealing and before the day on which the order is made. 33—Contravening restraining orders (1) A person is guilty of an offence if— (a) the person disposes of, or otherwise deals with, property covered by a restraining order; and (b) the person knows or is reckless as to the fact that— (i) the property is covered by a restraining order; and (ii) the disposition