Western Australia: Criminal Property Confiscation Act 2000 (WA)

Western Australia Criminal Property Confiscation Act 2000 Western Australia Criminal Property Confiscation Act 2000 Contents Part 1 — Preliminary 1. Short title 2 2. Commencement 2 3. Terms used (Glossary) 2 4. What is confiscable property 2 5. Application of Act to confiscable property 3 Part 2 — Confiscation of property 6. When property is confiscated 4 7. When frozen property is confiscated automatically 4 8. Declared drug trafficker, certain property of confiscated 4 9. Registrable real property, time and effect of confiscation of under s. 6, 7 or 8 5 10. Other property, time and effect of confiscation of under s. 6, 7 or 8 6 Part 3 — Identifying and recovering confiscable property Division 1 — Unexplained wealth 11. Unexplained wealth declarations, applying for 7 12. Unexplained wealth declarations, making 7 13. Unexplained wealth, assessing value of 8 14. Unexplained wealth declaration, effect of 9 Division 2 — Criminal benefits 15. Criminal benefits declarations, applying for 9 16. Criminal benefits declarations for crime‑derived property, making 9 17. Criminal benefits declarations for unlawfully acquired property, making 10 18. Criminal benefits declarations, limits on making and ancillary orders for 10 19. Criminal benefits, assessing value of 11 20. Criminal benefits declaration, effect of 11 Division 3 — Crime‑used property substitution 21. Crime‑used property substitution declaration, applying for 12 22. Crime‑used property substitution declarations, making 12 23. Crime‑used property, assessing value of 13 24. Crime‑used property substitution declaration, effect of 14 Division 4 — Recovery of confiscable property 25. Amounts payable under s. 14, 20 and 24, when payable and recovery of 14 26. Frozen property, use of to meet liability under s. 14, 20 or 24 14 27. Confiscable property declarations, applying for 15 28. Confiscable property declarations, making 15 29. Property available to meet liability under s. 14, 20 or 24 16 30. Declarations of confiscation, applying for and making 16 31. Applicant's duty to lodge memorial of confiscation 16 32. Varying declarations 17 Part 4 — Preventing dealings in confiscable property Division 1 — Seizure of crime‑used and crime‑derived property 33. Property, powers to seize etc. 18 Division 2 — Freezing notices for crime‑used and crime‑derived property 34. Freezing notices, application for and issue of 19 35. Freezing notices, contents of 20 36. Freezing notices, service, notice and filing of 21 37. Person served with freezing notice to declare any other interested party 22 38. Freezing notices for registrable real property, duration of and notices about 22 39. Freezing notices for other property, duration of and notices about 24 40. Freezing notices, cancelling etc. 25 Division 3 — Freezing orders for confiscable property 41. Freezing orders, applying for 25 42. Proceedings for freezing orders, court's powers in 26 43. Freezing orders, making 26 44. Freezing orders, court's duties when considering applications for 28 45. Freezing orders, court's powers when making 28 46. Freezing orders, service and notice of 29 47. Person served with freezing order to declare any other interested party 30 48. Freezing orders for registrable real property, duration of and notices about 31 49. Freezing orders for other property, duration of and notices about 33 Division 4 — Dealing with seized or frozen property 50. Prohibited dealings 36 51. Effect of prohibited dealings in frozen property 37 52. Permitted dealings in mortgaged property 37 Part 5 — Investigation and search Division 1 — Preliminary inquiries 53. Financial institutions may volunteer information 38 54. Financial institutions may be required to give information 38 55. Financial institution giving information under s. 53 or 54, protection for 40 56. Financial institution giving false or misleading information under s. 53 or 54, offence 40 Division 2 — Examinations 57. Examination of person, applying for order for 40 58. Court and CCC powers when making examination order 41 59. Examination orders, service of 42 60. Examinations, conduct of and representation at 42 60A. Examination by CCC 43 61. Examination orders, contravening and admissibility of information given under 43 Division 3 — Production of documents 62. Production orders, applying for 45 63. Production orders, making 45 64. Property‑tracking documents, inspection etc. of 46 65. Production orders, contravening and admissibility of information given under 47 66. Production orders, varying 48 Division 4 — Monitoring financial transactions 67. Monitoring orders and suspension orders, applying for 49 68. Monitoring orders and suspension orders, making 49 69. Contravening monitoring order or suspension order, offence 51 Division 5 — Secrecy requirements 70. Disclosure of certain information restricted, offence 51 71. Who restricted disclosures may be made to 52 72. Disclosure to court 55 Division 6 — Detention, search and seizure 73. Confiscable property etc., powers to search etc. people for 55 74. Search warrants 56 75. Search of person under s. 73 or 74, who may perform 57 76. Additional powers for powers under s. 73 and 74 58 77. Warrant under s. 74 extends to documents produced later 59 78. Other laws on search warrants not affected 59 Part 6 — Objections to confiscation 79. Confiscation of frozen property, objecting to 60 80. Objection proceedings, State is party to 60 81. On objection, court may release frozen property under s. 82, 83 or 84 60 82. Crime‑used property, release of 61 83. Crime‑derived property, release of 62 84. Other frozen property, release of 64 85. Confiscated property, applying for release of 64 86. Application under s. 85, State is party to 64 87. Confiscated property, release of 64 Part 7 — Management of seized, frozen and confiscated property Division 1 — Control and management of property 88. Seized property, control etc. of 67 89. Frozen and confiscated property, control etc. of 67 90. Capacity of DPP or CCC to carry out transactions 68 91. Control etc. of frozen property by owner, court may order 68 92. Person controlling etc. property, duties of 69 Division 2 — Disposal of deteriorating or undesirable property 93. Destruction of seized etc. property on grounds of public interest, court may order 69 94. Deteriorating frozen property, sale of 69 95. Frozen property, valuation and inventory of 70 Division 3 — Management of property by Public Trustee 96. Public Trustee may appoint person to control etc. property 71 97. Taxes etc. on frozen property, Public Trustee's liability for 71 98. Interstate property, management of 71 99. Public Trustee entitled to fees for controlling etc. frozen or confiscated property 72 100. Obstructing Public Trustee, offence 72 Part 8 — Court jurisdiction and evidentiary matters 101. Courts' jurisdiction for this Act 73 102. Proceedings, general provisions about 74 103. Attorney General entitled to appear in proceedings 74 104. Stays of proceedings 75 105. Opinion evidence of some people admissible 75 106. Findings that property is crime‑used or crime‑derived, making 76 107. Evidence as to confiscation offence may be used in confiscation proceedings 76 108. Examination orders, admissibility of transcript of proceedings under 76 109. Hearsay evidence etc., use of 77 110. Production orders, admissibility of documents produced etc. 77 111. Misuse of Drugs Act 1981 s. 38(2), effect of certificate under 77 112. Enforcing compliance with Act or court order 77 Part 9 — Interests in registrable property 113. Memorials for land titles, Registrar of Titles' functions as to and effect of 79 114. Registrars under Acts other than Transfer of Land Act 1893, duty of 81 115. Knowledge that property is frozen, imputation of 81 116. Documents lodged with the Registrar of Titles, form of 82 Part 10 — Mutual recognition of freezing orders and confiscation of property Division 1 — Registration of WA orders in other jurisdictions 117. Freezing notices and orders, content of for interstate registration and effect of interstate 83 Division 2 — Recognition of orders of other jurisdictions 118. Interstate orders, registration of 83 119. Registered interstate freezing orders, effect of 84 120. Registered interstate confiscation declarations, effect of 84 121. Registered interstate freezing orders etc., duration of 84 122. Registered interstate freezing orders etc., cancelling 85 Division 3 — Charges on interstate property 123. Creation of charge 85 124. Cessation of charge 86 125. Priority of charge 86 126. Charge on land, registration of memorial of 87 127. Charge on property other than land, registration of 87 Part 11 — Miscellaneous 128. Act binds States, Territories and Commonwealth 89 129. Property protected from seizure and confiscation 89 130. Confiscation Proceeds Account, creation and administration of 90 131. Confiscation Proceeds Account, funds and purposes of 90 132. Obstructing police officers or authorised CCC officers 91 133. Subsequent applications, notices, orders etc. not prevented 92 134. Delegation by DPP 92 134A. CCC's power to delegate 93 135. Sham transactions, orders as to 93 136. Offences by body corporate, liability of officers of in case of etc. 94 137. Protection from personal liability 95 138. Death of owner, effect of 95 139. Legal professional privilege withdrawn 95 140. Regulations 96 140A. Review of 2018 amendments to Act 97 Part 12 — Interpretation 141. Term used: confiscation offence 98 142. Term used: confiscable 99 143. Term used: wealth 99 144. Term used: unexplained wealth 100 145. Term used: criminal benefit 101 146. Term used: crime‑used 101 147. Term used: criminal use 102 148. Term used: crime‑derived 102 149. Term used: lawfully acquired 105 150. Term used: service cut off date 105 151. Term used: deal (in relation to property) 106 152. Term used: value (in relation to property sold by or for the State) 106 153. Term used: innocent party 107 154. Term used: value (in relation to transfer of property) 108 155. Term used: property‑tracking document 108 156. Term used: effective control (in relation to property) 109 157. Term used: conviction (in relation to confiscation offence) 110 158. Term used: charge (in relation to an offence) 111 159. Term used: declared drug trafficker 111 160. Term used: abscond (in relation to an offence) 112 161. Term used: sham transaction 113 Glossary 1. Terms used 114 Notes Compilation table 122 Other notes 124 Defined terms Western Australia Criminal Property Confiscation Act 2000 An Act to provide for the confiscation in certain circumstances of property acquired as a result of criminal activity and property used for criminal activity, to provide for the reciprocal enforcement of certain Australian legislation relating to the confiscation of profits of crime and the confiscation of other property, and for connected purposes. Part 1 — Preliminary 1. Short title This Act may be cited as the Criminal Property Confiscation Act 2000. 2. Commencement This Act comes into operation on a day fixed by proclamation. 3. Terms used (Glossary) The Glossary at the end of this Act defines or affects the meaning of some of the words and expressions used in this Act. 4. What is confiscable property Property of the following kinds is confiscable to the extent provided by this Act — (a) property equal in value to any amount by which the total value of a person's wealth exceeds the value of the person's lawfully acquired wealth (unexplained wealth — see section 144); (b) certain property, services, advantages and benefits obtained by a person who has been involved in the commission of a confiscation offence (criminal benefits — see section 145); (c) property used in or in connection with the commission of a confiscation offence, or property of equal value (crime‑used property — see section 146); (d) property derived directly or indirectly from the commission of a confiscation offence (crime‑derived property — see section 148); (e) property owned, effectively controlled or given away by a person who is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981, or who absconds before a declaration can be made (declared drug trafficker — see section 159). 5. Application of Act to confiscable property (1) This Act applies to a person's unexplained wealth whether any property, service, advantage or benefit that is a constituent of the person's wealth was acquired before or after the commencement of this Act. (2) This Act applies to criminal benefits, crime‑used property and crime‑derived property — (a) whether the relevant confiscation offence was committed in Western Australia or elsewhere; and (b) whether the relevant confiscation offence was committed before or after the commencement of this Act; and (c) whether or not anyone has been charged with, or convicted of, the relevant confiscation offence; and (d) if someone has been convicted of the relevant confiscation offence — whether the conviction took place before or after the commencement of this Act. (3) This Act applies — (a) to property in Western Australia; and (b) to the fullest extent of the capacity of the Parliament to make laws with respect to property outside the State, to property outside Western Australia. Part 2 — Confiscation of property 6. When property is confiscated Property is confiscated when it is given or taken in satisfaction of a person's liability under section 14, 20 or 24 to pay the amount specified in an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration. 7. When frozen property is confiscated automatically (1) Frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after the service cut off date for the property. (2) If an objection to the confiscation of frozen property is filed on or before the 28th day after the service cut off date for the property, the property is confiscated if — (a) the objection, or each objection if there are more than one, is finally determined; and (b) where the property is subject to a freezing notice — the freezing notice is not cancelled or set aside; and (c) where the property is subject to a freezing order — the freezing order is not set aside. (3) However, property frozen under a freezing notice is not confiscated under subsection (1) or (2) until the freezing notice is filed in accordance with section 36(6)(a). 8. Declared drug trafficker, certain property of confiscated (1) When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated — (a) all the property that the person owns or effectively controls at the time the declaration is made; (b) all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act. (2) When a person is taken to be a declared drug trafficker under section 159(2), the following property is confiscated — (a) all the property that the person owned or effectively controlled at the time that the person absconded; (b) all property that the person gave away at any time before the person absconded, whether the gift was made before or after the commencement of this Act. (3) Nothing in subsection (1) or (2) prevents the confiscation of crime‑derived property or crime‑used property owned, effectively controlled or given away by a person, whether the relevant confiscation offence was committed, or is likely to have been committed, before or after the commencement of this Act. (4) Nothing in subsection (1) or (2) prevents a criminal benefits declaration from being made against a person, whether the relevant confiscation offence was committed, or is likely to have been committed, before or after the commencement of this Act. (5) Nothing in subsection (1) or (2) prevents an unexplained wealth declaration from being made against a declared drug trafficker or a person who has been charged with an offence that may lead to his or her being declared a drug trafficker. 9. Registrable real property, time and effect of confiscation of under s. 6, 7 or 8 (1) Registrable real property that is confiscated under section 6, 7 or 8 vests absolutely in the State when — (a) the court declares under section 30 that the property has been confiscated; and (b) a memorial of the making of the declaration is registered under section 113(1). (2) When registrable real property vests in the State under subsection (1) — (a) the property vests free from all interests, whether registered or not, including trusts, mortgages, charges, obligations and estates, (except rights‑of‑way, easements and restrictive covenants); and (b) any caveat in force in relation to the property is taken to have been withdrawn; and (c) the title in the property passes to the State. (3) If registrable real property has been confiscated under section 6, 7 or 8, but has not vested in the State under subsection (1), sections 50 and 51 and Part 7 apply to the property as if it were subject to a freezing order. 10. Other property, time and effect of confiscation of under s. 6, 7 or 8 (1) Property (except registrable real property) that is confiscated under section 6, 7 or 8 vests absolutely in the State when the section takes effect in relation to the property. (2) When property (except registrable real property) that is registrable under the Personal Property Securities Act 2009 (Commonwealth) or an enactment is confiscated, the DPP or the CCC, as the case requires, must notify the relevant registrar of the confiscation. [Section 10 amended: No. 42 of 2011 s. 10; No. 10 of 2018 s. 27.] Part 3 — Identifying and recovering confiscable property Division 1 — Unexplained wealth 11. Unexplained wealth declarations, applying for (1) The DPP or the CCC may apply to the court for an unexplained wealth declaration against a person. (2) An application may be made in conjunction with an application for a freezing order, in proceedings for the hearing of an objection to confiscation, or at any other time. [Section 11 amended: No. 10 of 2018 s. 28.] 12. Unexplained wealth declarations, making (1) On hearing an application under section 11(1), the court must declare that the respondent has unexplained wealth if it is more likely than not that the total value of the respondent's wealth is greater than the value of the respondent's lawfully acquired wealth. (2) Any property, service, advantage or benefit that is a constituent of the respondent's wealth is presumed not to have been lawfully acquired unless the respondent establishes the contrary. (3) Without limiting the matters to which the court may have regard, for the purpose of deciding whether the respondent has unexplained wealth, the court may have regard to the amount of the respondent's income and expenditure at any time or at all times. (4) When making a declaration, the court is to — (a) assess the value of the respondent's unexplained wealth in accordance with section 13; and (b) specify the assessed value of the unexplained wealth in the declaration. (5) The court may make any necessary or convenient ancillary orders. [Section 12 amended: No. 10 of 2018 s. 29.] 13. Unexplained wealth, assessing value of (1) The value of the respondent's unexplained wealth is the amount equal to the difference between — (a) the total value of the respondent's wealth; and (b) the value of the respondent's lawfully acquired wealth. (2) For the purposes of subsection (1), the value of any property, service, advantage or benefit that has been given away, used, consumed or discarded, or that is for any other reason no longer available, is the greater of — (a) its value at the time that it was acquired; and (b) its value immediately before it was given away, or was used, consumed or discarded, or stopped being available. (3) The value of any other property, service, advantage or benefit is the greater of — (a) its value at the time that it was acquired; and (b) its value on the day that the application for the unexplained wealth declaration was made. (4) However, when assessing the value of the respondent's unexplained wealth, the court is not to take account of — (a) any property that has been confiscated under this Act or any other enactment; or (b) any property, service, advantage or benefit that was taken into account for the purpose of making an earlier unexplained wealth declaration against the respondent; or (c) any property, service, advantage or benefit in relation to which a criminal benefits declaration has been made. 14. Unexplained wealth declaration, effect of When the court makes an unexplained wealth declaration, the respondent is liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the respondent's unexplained wealth. Division 2 — Criminal benefits 15. Criminal benefits declarations, applying for (1) The DPP or the CCC may apply to the court for a criminal benefits declaration. (2) An application may be made in conjunction with an application for a freezing order, in proceedings for the hearing of an objection to confiscation, or at any other time. [Section 15 amended: No. 10 of 2018 s. 30.] 16. Criminal benefits declarations for crime‑derived property, making (1) On hearing an application under section 15(1), the court must declare that the respondent has acquired a criminal benefit if it is more likely than not that — (a) the property, service, advantage or benefit described in the application is a constituent of the respondent's wealth; and (b) the respondent is or was involved in the commission of a confiscation offence; and (c) the property, service, advantage or benefit was wholly or partly derived or realised, directly or indirectly, as a result of the respondent's involvement in the commission of the confiscation offence, whether or not it was lawfully acquired. (2) For the purposes of subsection (1)(b), if the respondent has been convicted of the confiscation offence, the respondent is conclusively presumed to have been involved in the commission of the offence. (3) The property, service, advantage or benefit is presumed to have been directly or indirectly acquired as a result of the respondent's involvement in a confiscation offence unless the respondent establishes otherwise. 17. Criminal benefits declarations for unlawfully acquired property, making (1) On hearing an application under section 15(1), the court must declare that the respondent has acquired a criminal benefit if it is more likely than not that — (a) the property, service, advantage or benefit described in the application is a constituent of the respondent's wealth; and (b) the property, service, advantage or benefit was not lawfully acquired. (2) If the respondent has been convicted of a confiscation offence, or it is more likely than not that the respondent is or has been involved in the commission of a confiscation offence, then it is presumed that the property, service, advantage or benefit was not lawfully acquired unless the respondent establishes the contrary. 18. Criminal benefits declarations, limits on making and ancillary orders for (1) The court is not to make a criminal benefits declaration in relation to any property, service, advantage or benefit if — (a) a criminal benefits declaration has already been made in relation to the property, service, advantage or benefit; or (b) the property, service, advantage or benefit has been confiscated under this Act or any other enactment; or (c) the property, service, advantage or benefit, or its value, has been taken into account for the purpose of making an unexplained wealth declaration against the respondent. (2) When making a criminal benefits declaration, the court is to — (a) assess the value of the criminal benefit acquired by the respondent in accordance with section 19; and (b) specify the assessed value of the criminal benefit in the declaration. (3) When making a criminal benefits declaration, the court may make any necessary or convenient ancillary orders. 19. Criminal benefits, assessing value of (1) The value of any property, service, advantage or benefit that has been given away, used, consumed or discarded, or that is for any other reason no longer available, is the greater of — (a) its value at the time that it was acquired; and (b) its value at the time that it was given away, or was used, consumed or discarded, or stopped being available. (2) The value of any other property, service, advantage or benefit is the greater of — (a) its value at the time that it was acquired; and (b) its value on the day that the application for the criminal benefits declaration was made. 20. Criminal benefits declaration, effect of When the court makes a criminal benefits declaration, the respondent is liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the criminal benefit acquired by the respondent. Division 3 — Crime‑used property substitution 21. Crime‑used property substitution declaration, applying for (1) The DPP may apply to the court for a crime‑used property substitution declaration against a person. (2) An application may be made in conjunction with an application for a freezing order, in proceedings for the hearing of an objection to the confiscation of property, or at any other time. 22. Crime‑used property substitution declarations, making (1) On hearing an application under section 21, the court must declare that property owned by the respondent is available for confiscation instead of crime‑used property if — (a) the crime‑used property is not available for confiscation as mentioned in subsection (2); and (b) it is more likely than not that the respondent made criminal use of the crime‑used property. (2) For the purposes of subsection (1)(a), the crime‑used property is not available for confiscation if — (a) the respondent does not own, and does not have effective control of, the property; or (b) where the property was or is owned or effectively controlled by the respondent, and was or is frozen — the freezing notice or freezing order has been or is to be set aside under section 82(3) in favour of the spouse, a de facto partner or a dependant of the respondent; or (c) in any other case — the property has been sold or otherwise disposed of, or cannot be found for any other reason. (3) If the respondent has been convicted of the relevant confiscation offence, it is presumed that the respondent made criminal use of the property unless the respondent establishes the contrary. (4) If the respondent has not been convicted of the relevant confiscation offence, but the applicant establishes that it is more likely than not that the crime‑used property was in the respondent's possession at the time that the offence was committed or immediately afterwards, then it is presumed that the respondent made criminal use of the property unless the respondent establishes the contrary. (5) In any circumstances except those set out in subsection (3) or (4), the applicant bears the onus of establishing that the respondent made criminal use of the property. (6) When making a declaration, the court is to — (a) assess the value of the crime‑used property in accordance with section 23; and (b) specify the assessed value of the crime‑used property in the declaration. (7) The court may make any necessary or convenient ancillary orders. [Section 22 amended: No. 28 of 2003 s. 40.] 23. Crime‑used property, assessing value of (1) The value of crime‑used property is the amount equal to the value of the property at the time that the relevant confiscation offence was or is likely to have been committed. (2) The value of the crime‑used property is taken to be its full value even if the respondent did not outlay any amount for the purpose of obtaining or making criminal use of the property, or did not outlay an amount equal to its full value for that purpose. (3) The court may make a crime‑used property substitution declaration against 2 or more respondents in respect of the same crime‑used property, whether or not the applications for the respective declarations are heard in the same proceedings. 24. Crime‑used property substitution declaration, effect of (1) When a court makes a crime‑used property substitution declaration, the respondent is liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the crime‑used property. (2) If a crime‑used property substitution declaration is made against 2 or more respondents in respect of the same crime‑used property, the respondents are jointly and severally liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the property. Division 4 — Recovery of confiscable property 25. Amounts payable under s. 14, 20 and 24, when payable and recovery of (1) The amount payable by a respondent under section 14, 20 or 24 is payable — (a) within one month after the date on which the respective unexplained wealth declaration, criminal benefits declaration or crime‑used property substitution declaration was made; or (b) within any further time allowed by the court. (2) The court may allow further time even if the due date has passed. (3) If part or all of the amount is not paid within the time allowed, the unpaid amount is recoverable from the respondent by the State in a court of competent jurisdiction as a debt due to the State. 26. Frozen property, use of to meet liability under s. 14, 20 or 24 (1) Frozen property owned by a respondent may be taken, with the respondent's consent, in payment or part‑payment of an amount payable by the respondent under section 14, 20 or 24. (2) However, if part or all of the amount payable by the respondent is not paid within the time allowed under section 25(1), then despite any other provision of this Act, any frozen property that is owned by the respondent is available for the purpose of satisfying the respondent's liability as if the property had been taken from the respondent's possession under a writ, warrant or other process of execution. (3) Nothing in subsection (1) or (2) limits any other means of satisfying a debt due to the State under section 25(3). 27. Confiscable property declarations, applying for (1) The DPP or the CCC may apply to the court for a confiscable property declaration. (2) An application may be made in the course of proceedings for an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration, or at any other time. [Section 27 amended: No. 10 of 2018 s. 31.] 28. Confiscable property declarations, making (1) On hearing an application under section 27 the court may declare that property that is not owned by the respondent is available to satisfy the respondent's liability under section 14, 20 or 24 if it is more likely than not that — (a) if the property is frozen — the respondent effectively controlled the property at the time that the freezing notice was issued or the freezing order was made for the property; or (b) if the property is not frozen — the respondent effectively controlled the property at the time that the application for the unexplained wealth declaration, criminal benefits declaration or crime‑used property substitution declaration was made; or (c) the respondent gave the property away at any earlier time. (2) It is presumed that the respondent effectively controlled the property at the material time, or gave the property away, unless the respondent establishes the contrary. (3) The court may make any necessary or convenient ancillary orders. 29. Property available to meet liability under s. 14, 20 or 24 (1) Property that is effectively controlled, or was given away, by a respondent is not available to satisfy the respondent's liability under section 14, 20 or 24 unless the property is specified in a confiscable property declaration against the respondent. (2) The property specified in a confiscable property declaration is only available to satisfy the respondent's liability — (a) in accordance with the declaration; and (b) to the extent that property owned by the respondent is not available or is insufficient to satisfy the liability. 30. Declarations of confiscation, applying for and making (1) The DPP or the CCC may apply to the court for a declaration that property has been confiscated. (2) On considering an application, if the court finds that the property described in the application has been confiscated under section 6, 7 or 8, the court must make a declaration to that effect. [Section 30 amended: No. 10 of 2018 s. 32.] 31. Applicant's duty to lodge memorial of confiscation (1) When the court declares under section 30 that registrable real property has been confiscated, the applicant for the declaration must lodge a memorial of the confiscation with the Registrar of Titles. (2) When the court declares under section 30 that property that is registrable under the Personal Property Securities Act 2009 (Commonwealth) or any enactment except the Transfer of Land Act 1893 has been confiscated, the applicant for the declaration must lodge with the relevant registrar — (a) a copy of the declaration; and (b) a notice giving particulars of the confiscation. [Section 31 amended: No. 42 of 2011 s. 11; No. 10 of 2018 s. 33.] 32. Varying declarations If the court has made a declaration under this Part, the applicant for the declaration may at any time apply to the court for a variation of the declaration, or for a further declaration, to give effect, or better to give effect, to the previous declaration. [Section 32 amended: No. 10 of 2018 s. 34.] Part 4 — Preventing dealings in confiscable property Division 1 — Seizure of crime‑used and crime‑derived property 33. Property, powers to seize etc. (1) A police officer may seize any property if there are reasonable grounds for suspecting that the property — (a) is crime‑used property; or (b) is crime‑derived property; or (c) is owned or effectively controlled by a person who has been charged with an offence, and who could be declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 if he or she is convicted of the offence. (2) A police officer may — (a) at any time remove the seized property from the place in which it was found and retain it; or (b) guard the property in the place in which it was found. (3) A police officer may retain or guard the property — (a) if a freezing notice is issued for the property within 72 hours after it was seized — while the freezing notice is in force; or (b) if not — for not more than 72 hours after the property was seized. (4) Any income or other property derived from seized property while it is being retained or guarded is taken for all purposes to be part of the seized property. Division 2 — Freezing notices for crime‑used and crime‑derived property 34. Freezing notices, application for and issue of (1) The DPP or a police officer may apply to a Justice of the Peace for the issue of a freezing notice. (2) A Justice of the Peace may issue a freezing notice for any property if there are reasonable grounds for suspecting that the property is crime‑used or crime‑derived. (3) A Justice of the Peace may issue a freezing notice for all or any property that is owned or effectively controlled by a person, or that the person has at any time given away if — (a) the person has been charged with an offence, or the applicant for the notice advises the Justice of the Peace that the person is likely to be charged with an offence within 21 days after the day on which the freezing notice is issued; and (b) the person could be declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 if he or she is convicted of the offence. (4) A freezing notice may be issued under subsection (3) for all or any property that is owned or effectively controlled by the person, whether or not any of the property is described or identified in the application. (5) A freezing notice may be issued under subsection (3) for all property acquired after the order is made — (a) by the person; or (b) by another person at the request or direction of the first‑mentioned person. (6) When considering an application for a freezing notice, a Justice of the Peace must — (a) consider each matter that is alleged by the applicant as a ground for issuing the freezing notice; and (b) if the justice decides to issue the freezing notice — set out in the notice each ground that the justice finds is a ground on which the notice may be issued. (7) Any income or other property derived from the property while the freezing notice is in force is taken to be part of the property. 35. Freezing notices, contents of (1) A freezing notice must — (a) describe the property covered by the notice; and (b) include an estimate of the value of the property; and (c) if the property has been removed from the place in which it was found — indicate where, when and from whom it was taken; and (d) summarise the effect of the notice; and (e) advise the recipient to the effect that the property described in the order may be confiscated automatically under this Act unless an objection to the confiscation of the property is filed in the court specified in the notice within 28 days after the date of service of the notice; and (f) tell the recipient that he or she may be eligible to file an objection to the confiscation of the property; and (g) give details of the recipient's obligations under section 37; and (h) give any directions necessary for the security and management of the property while the notice is in force. (2) For the purposes of subsection (1)(b), a police officer may estimate the value of the property, or may have the property valued by an appropriately qualified valuer. (3) For the purposes of subsection (1)(h), a police officer or the DPP may arrange for an inventory to be taken of any fittings, fixtures or moveable goods in or on the property. 36. Freezing notices, service, notice and filing of (1) As soon as practicable after a freezing notice is issued, the applicant for the notice must arrange for a copy of it to be served personally on each of the following persons — (a) if the property covered by the notice was taken from a person — that person; (b) if, at the time that the freezing notice is issued, the applicant is aware of any other person who is, or may be, or claims to be, an interested party — that person. (2) If the property is registrable real property, the applicant must lodge a memorial of the issue of the notice with the Registrar of Titles. (3) If the property is registrable under the Personal Property Securities Act 2009 (Commonwealth) or any enactment except the Transfer of Land Act 1893, the applicant must notify the relevant registrar of the issue of the notice. (4) If, as a result of information in a statutory declaration given, in accordance with section 37, by a person who was served with a copy of the freezing notice under subsection (1), the applicant becomes aware that any other person is or may be or claims to be an interested party, then the applicant must arrange for a copy of the notice to be served on the person personally, as soon as practicable. (5) Nothing in subsection (1) or (4) prevents the applicant from serving a copy of the notice at any time on any other person whom the applicant becomes aware is, or may be or claims to be an interested party, but the service cut off date for the property is not affected by any service outside the requirements of subsection (1) or (4). (6) The applicant must ensure that — (a) the freezing notice is filed in the court specified in the notice; and (b) an affidavit of service is endorsed on a copy of each copy of the freezing notice that is served on a person; and (c) each endorsed copy is filed in the court. [Section 36 amended: No. 42 of 2011 s. 12; No. 10 of 2018 s. 35.] 37. Person served with freezing notice to declare any other interested party (1) A person who is served with a copy of a freezing notice under section 36 must give a statutory declaration to the officer in charge of the police station specified in the notice. (2) The statutory declaration must be given within 7 days after the day on which the copy of the freezing notice was served on the person. (3) In the statutory declaration, the declarant must — (a) state the name and, if known, the address of any other person whom the declarant is aware is or may be, or claims to be, an interested party; or (b) if the declarant is not aware of any other person who is or may be, or claims to be, an interested party — make a statement to that effect. Penalty: $5 000. 38. Freezing notices for registrable real property, duration of and notices about (1) A freezing notice for registrable real property comes into force when a memorial of the issue of the freezing notice is registered under section 113(1). (2) A freezing notice for registrable real property stops being in force when a memorial under subsection (4) or (5) in relation to the property is registered under section 113(1). (3) However, if the freezing notice was issued on 2 or more grounds, but a memorial has not been lodged under subsection (4) or (5) in relation to each of those grounds, the freezing notice continues in force as if it had been made on each remaining ground. (4) If a freezing notice under section 34(2) is in force for registrable real property, the applicant for the freezing notice must lodge a memorial with the Registrar of Titles if — (a) the freezing notice is cancelled under section 40; or (b) the freezing notice is set aside under Part 6; or (c) the property is confiscated under section 6, 7 or 8. (5) If a freezing notice for registrable real property was issued under section 34(3) on the basis that a person has been or is likely to be charged with an offence, the applicant for the freezing notice must lodge a memorial with the Registrar of Titles if — (a) when the notice was issued on the basis of advice given under section 34(3)(a) — the person is not charged with the offence within 21 days after the date of the freezing notice; or (b) the charge against the person is disposed of; or (c) the charge is finally determined, but the person is not declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981; or (d) the freezing notice is cancelled under section 40; or (e) the freezing notice is set aside under Part 6; or (f) the property is confiscated under section 6, 7 or 8. 39. Freezing notices for other property, duration of and notices about (1) A freezing notice for any property except registrable real property comes into force when the notice is issued. (2) A freezing notice issued under section 34(2) for any property except registrable real property stops being in force as soon as any of the following happens — (a) the property is confiscated under section 6, 7 or 8; (b) the freezing notice is cancelled under section 40; (c) the freezing notice is set aside under Part 6. (3) A freezing notice for property (except registrable real property) issued under section 34(3) on the basis that a person has been or is likely to be charged with an offence stops being in force as soon as one of the following happens — (a) where the notice was issued on the basis of advice given under section 34(3)(a) — the person is not charged with the offence within 21 days after the date of the freezing notice; or (b) the charge against the person is disposed of; or (c) the charge is finally determined, but the person is not declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981; or (d) the freezing notice is cancelled under section 40; or (e) the freezing notice is set aside under Part 6; or (f) the property is confiscated under section 6, 7 or 8. (4) However, if the freezing notice was issued on 2 or more grounds, but the notice has not ceased to be in force under subsection (3) or (4) in relation to each of those grounds, the freezing order continues in force as if it had been made on each remaining ground. (5) When a freezing notice stops being in force for property (except registrable real property) that is registrable under the Personal Property Securities Act 2009 (Commonwealth) or an enactment, the applicant for the notice must notify the relevant registrar to that effect. [Section 39 amended: No. 42 of 2011 s. 13; No. 10 of 2018 s. 36.] 40. Freezing notices, cancelling etc. (1) A police officer or the DPP must cancel a freezing notice issued under section 34(2) for property if the grounds for suspecting that the property is crime‑used or crime‑derived no longer exist. (2) A police officer or the DPP must ensure that — (a) notice of the cancellation is served personally, as soon as practicable, on each person on whom a copy of the notice was served under section 36; and (b) if the notice has been filed in a court — a notice of the cancellation is filed in the court; and (c) any property covered by the notice that is being guarded under section 33(2)(b) is released from guard; and (d) any property covered by the notice that is being retained under section 33(3) is returned to the person from whom it was seized unless it is to be otherwise dealt with under this Act or another enactment; and (e) if the police officer or the DPP is aware that the person to whom the property is to be returned under paragraph (d) is not the owner of the property — the owner is notified, where practicable, of the cancellation and return. Division 3 — Freezing orders for confiscable property 41. Freezing orders, applying for (1) The DPP or the CCC may apply to the court for a freezing order for property. (2) An application may be made ex parte. [Section 41 amended: No. 10 of 2018 s. 37.] 42. Proceedings for freezing orders, court's powers in In proceedings for a freezing order, the court may do any or all of the following — (a) order that the whole or any part of the proceedings is to be heard in closed court; (b) order that only persons or classes of persons specified by the court may be present during the whole or any part of the proceedings; (c) make an order prohibiting the publication of a report of the whole or any part of the proceedings or of any information derived from the proceedings. 43. Freezing orders, making (1) The court may make a freezing order for property if — (a) an examination order, a monitoring order or a suspension order obtained by the applicant for the freezing order is in force in relation to the property; or (b) the applicant for the freezing order advises the court that the applicant has applied for an examination order, monitoring order or suspension order in relation to the property or is likely to apply for such an order within 21 days after the freezing order is made; or (c) the CCC advises the court that the CCC has made an examination order in relation to the property, or is likely to make an examination order in relation to the property within 21 days after the freezing order is made. (2) The court may make a freezing order under subsection (1) whether or not the person against whom the examination order, monitoring order or suspension order is made, or is to be sought, owns or effectively controls the property. (3) The court may make a freezing order for all or any property that is owned or effectively controlled by the person or that the person has at any time given away if — (a) a production order has been made against the person; or (b) an application has been made against the person for an unexplained wealth declaration, criminal benefits declaration, crime‑used property substitution declaration or production order; or (c) the applicant for the freezing order advises the court that such an application is likely to be made within 21 days after the freezing order is made. (4) The court is not to refuse to make a freezing order for property under subsection (3) only because the value of the property exceeds, or could exceed, the amount that a person could be liable to pay under section 14, 20 or 24 if the declaration is made. (5) The court may make a freezing order for all or any property that is owned or effectively controlled by a person, or that the person has at any time given away if — (a) the person has been charged with an offence, or the DPP advises the court that a person is likely to be charged with an offence within 21 days after the day on which the freezing order is made; and (b) the person could be declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 if he or she is convicted of the offence. (6) A freezing order may be made under subsection (3) or (5) for all property owned or effectively controlled by the person, whether or not any of the property is described or identified in the application. (7) A freezing order may be made under subsection (3) or (5) for all property acquired after the order is made — (a) by the person; or (b) by another person at the request or direction of the first‑mentioned person. (8) The court may make a freezing order for property if there are reasonable grounds for suspecting that the property is crime‑used or crime‑derived. [Section 43 amended: No. 10 of 2018 s. 38.] 44. Freezing orders, court's duties when considering applications for When considering an application for a freezing order, the court must — (a) consider each matter that is alleged by the applicant, either in the application or in the course of the proceedings, as a ground for making the order; and (b) set out in the order each ground that the court finds is a ground on which the order may be made. 45. Freezing orders, court's powers when making In a freezing order, the court may do any or all of the following — (a) direct that any income or other property derived from the property while the order is in force is to be treated as part of the property; (b) if the property is moveable — direct that the property is not to be moved except in accordance with the order; (c) appoint the applicant for the order, the Public Trustee or the Commissioner of Police to manage the property while the order is in force; (d) give any other directions necessary to provide for the security and management of the property while the order is in force; (e) provide for meeting the reasonable living and business expenses of the owner of the property. [Section 45 amended: No. 10 of 2018 s. 39.] 46. Freezing orders, service and notice of (1) As soon as practicable after a freezing order is made, the applicant for the order must arrange for a copy of the order and a notice that complies with subsection (6) to be served personally on each of the following persons — (a) if the frozen property was taken from a person, or is in the custody of a person — that person; (b) if, at the time that the freezing order is made, the applicant is aware of any other person who is, or may be, or claims to be, an interested party — that person. (2) If the property is registrable real property, the applicant must lodge a memorial of the making of the order with the Registrar of Titles. (3) If the property is registrable under the Personal Property Securities Act 2009 (Commonwealth) or any enactment except the Transfer of Land Act 1893, the applicant must notify the relevant registrar of the making of the order. (4) If, as a result of information in a statutory declaration given, in accordance with section 47, by a person who was served with a copy of the freezing order under subsection (1), the applicant becomes aware that any other person is or may be or claims to be an interested party, then the applicant must arrange for a copy of the freezing order and a notice that complies with subsection (6) to be served on the person personally, as soon as practicable. (5) Nothing in subsection (1) or (4) prevents the applicant from serving a copy of the freezing order and a notice at any time on any other person whom the applicant becomes aware is, or may be or claims to be an interested party, but the service cut off date for the property is not affected by any service outside the requirements of subsection (1) or (4). (6) The notice must — (a) summarise the effect of the order; and (b) advise the recipient to the effect that the property described in the order may be confiscated automatically under this Act unless an objection to the confiscation of the property is filed in the court specified in the notice within 28 days after the date of service of the notice; and (c) tell the recipient that he or she may be eligible to file an objection to the confiscation of the property; and (d) give details of the recipient's obligations under section 47. (7) When service is effected on a person under this section, the server must file an affidavit to that effect stating the name and address of the person served. [Section 46 amended: No. 42 of 2011 s. 14; No. 10 of 2018 s. 40.] 47. Person served with freezing order to declare any other interested party (1) A person who is served under section 46 with a copy of a freezing order and a notice must give a statutory declaration to the applicant for the order. (2) The statutory declaration must be given within 7 days after the day on which the notice was served on the person. (3) In the statutory declaration, the declarant must — (a) state the name and, if known, the address of any other person whom the declarant is aware is or may be, or claims to be, an interested party; or (b) if the declarant is not aware of any other person who is or may be, or claims to be, an interested party — make a statement to that effect. Penalty: $5 000. [Section 47 amended: No. 10 of 2018 s. 41.] 48. Freezing orders for registrable real property, duration of and notices about (1) A freezing order for registrable real property comes into force when a memorial of the making of the order is registered under section 113(1). (2) A freezing order for registrable real property stops being in force when a memorial under subsection (4), (5), (6) or (7) in relation to the property is registered under section 113(1). (3) However, if the freezing order was made on 2 or more grounds, but a memorial has not been lodged under subsection (4) or (5) in relation to each of those grounds, the freezing order continues in force as if it had been made on each remaining ground. (4) If a freezing order for registrable real property was made under section 43(1) on the basis that an application for another order has been or is likely to be made, or that an examination order is likely to be made by the CCC, the applicant for the freezing order must lodge a memorial with the Registrar of Titles if — (a) where the freezing order was made on the basis of advice given to the court under section 43(1)(b) — an application for the other order is not made within 21 days after the date of the freezing order; or (ab) where the freezing order was made on the basis of advice given to the court under section 43(1)(c) that an examination order is likely to be made — the examination order is not made within 21 days after the date of the freezing order; or (b) the application for the other order is withdrawn; or (c) the application for the other order is finally determined but the court does not make the other order; or (d) the freezing order is set aside at the request of the applicant for the freezing order or in proceedings on an objection; or (e) the property is confiscated under section 6, 7 or 8. (5) If a freezing order for registrable real property was made under section 43(3) on the basis that an application for a declaration or another order has been or is likely to be made, the applicant for the freezing order must lodge a memorial with the Registrar of Titles if — (a) where the freezing order was made on the basis of advice given to the court under section 43(3)(c) — an application for the declaration or other order is not made within 21 days after the date of the freezing order; or (b) the application for the declaration or other order is withdrawn; or (c) the application for the declaration or other order is finally determined, but the court does not make the declaration or other order; or (d) in the case of a declaration — the declaration is made, and the respondent's liability to pay an amount under section 14, 20 or 24 is satisfied, whether or not any or all of the frozen property is given or taken in satisfaction of the liability; or (e) the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection; or (f) the property is confiscated under section 6, 7 or 8. (6) If a freezing order for registrable real property was made under section 43(5) on the basis that a person has been or is likely to be charged with an offence, the applicant for the freezing order must lodge a memorial with the Registrar of Titles if — (a) where the freezing order was made on the basis of advice given to the court under section 43(5)(a) — the person is not charged with the offence within 21 days after the date of the freezing order; or (b) the charge against the person is disposed of; or (c) the charge is finally determined, but the person is not declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981; or (d) the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection; or (e) the property is confiscated under section 6, 7 or 8. (7) If a freezing order was made under section 43(8) for registrable real property on the basis that the property was suspected of being crime‑used or crime‑derived, the applicant for the freezing order must lodge a memorial with the Registrar of Titles if — (a) the freezing order is set aside at the request of the applicant for the freezing order or in proceedings on an objection; or (b) the property is confiscated under section 6, 7 or 8. [Section 48 amended: No. 10 of 2018 s. 42.] 49. Freezing orders for other property, duration of and notices about (1) A freezing order for property (except registrable real property) comes into force when the freezing order is made. (2) If a freezing order for property (except registrable real property) was made under section 43(1) on the basis that an application for another order has been or is likely to be made, or that an examination order is likely to be made by the CCC, the freezing order stops being in force as soon as one of the following happens — (a) if the freezing order was made on the basis of advice given to the court under section 43(1)(b) — an application for the other order is not made within 21 days after the date of the order; (ab) if the freezing order was made on the basis of advice given to the court under section 43(1)(c) that an examination order is likely to be made — the examination order is not made within 21 days after the date of the freezing order; (b) the application for the other order is withdrawn; (c) the application for the other order is finally determined but the court does not make the other order; (d) the freezing order is set aside at the request of the applicant for the freezing order or in proceedings on an objection; (e) the property is confiscated under section 6, 7 or 8. (3) A freezing order for property (except registrable real property) made under section 43(3) on the basis that an application for a declaration or another order has been or is likely to be made stops being in force as soon as one of the following happens — (a) if the freezing order was made on the basis of advice given to the court under section 43(3)(c) — an application for the declaration or other order is not made within 21 days after the date of the freezing order; (b) the application for the declaration or other order is withdrawn; (c) the application for the declaration or other order is finally determined, but the court does not make the declaration or other order; (d) in the case of a declaration — the declaration is made, and the respondent's liability to pay an amount under section 14, 20 or 24 is satisfied, whether or not any or all of the frozen property is given or taken in satisfaction of the liability; (e) the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection; (f) the property is confiscated under section 6, 7 or 8. (4) A freezing order for property (except registrable real property) made under section 43(5) on the basis that a person has been or is likely to be charged with an offence stops being in force as soon as one of the following happens — (a) if the freezing order was made on the basis of advice given to the court under section 43(5)(a) — the person is not charged with the offence within 21 days after the date of the order; (b) the charge against the person is disposed of; (c) the charge is finally determined, but the person is not declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981; (d) the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection; (e) the property is confiscated under section 6, 7 or 8. (5) A freezing order made under section 43(8) for property (except registrable real property) on the basis that it was suspected of being crime‑used or crime‑derived stops being in force as soon as one of the following happens — (a) the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection; (b) the property is confiscated under section 6, 7 or 8. (6) However, if the freezing order was made on 2 or more grounds, but the order has not stopped being in force under subsection (2), (3), (4) or (5) in relation to each of those grounds, the freezing order continues in force as if it had been made on each remaining ground. [Section 49 amended: No. 10 of 2018 s. 43.] Division 4 — Dealing with seized or frozen property 50. Prohibited dealings (1) A person must not deal with seized or frozen property in any way. Penalty: $100 000 or the value of the property, whichever is greater, or imprisonment for 5 years, or both. (2) Subsection (1) does not apply to — (a) a person acting in accordance with an order under section 45(c), 91(2) or 93(2); or (b) in the case of seized property — a police officer acting under section 33, or a person acting under the direction of a police officer who is acting in accordance with this Act; or (c) in the case of frozen property — a person acting in accordance with the freezing notice or freezing order. (3) It is a defence to a prosecution for an offence under subsection (1) in relation to seized property if the accused establishes that he or she did not know, and can not reasonably be expected to have known, that the property was being retained or guarded under section 33(2) at the relevant time. (4) It is a defence to a prosecution for an offence under subsection (1) in relation to frozen property if the respondent establishes that he or she did not know, and can not reasonably be expected to have known, that the freezing notice or freezing order was in force at the material time. (5) Subsection (1) does not prevent a person from being dealt with for a contempt of the court for a contravention of a freezing order, but the person is not punishable for both a contempt and an offence under subsection (1) arising from the same contravention. [Section 50 amended: No. 84 of 2004 s. 82.] 51. Effect of prohibited dealings in frozen property Despite any other enactment, any dealing with property that contravenes section 50 has no effect, whether at law, in equity or otherwise, on the rights of the State under this Act. 52. Permitted dealings in mortgaged property If mortgaged property is frozen, nothing in this Act — (a) prevents the mortgagor from making payments to the mortgagee in accordance with the mortgage if the payments are made with money that has not been seized or frozen; or (b) prevent the mortgagee from accepting payments from the mortgagor in accordance with the mortgage. Part 5 — Investigation and search Division 1 — Preliminary inquiries 53. Financial institutions may volunteer information A financial institution that has information about a transaction with the institution may give the information to the DPP, a police officer or an authorised CCC officer if there are reasonable grounds for suspecting that the information — (a) may be relevant to the investigation of a confiscation