New South Wales Consolidated Acts

CONFISCATION OF PROCEEDS OF CRIME ACT 1989 - SECT 4

4 Definitions

(1) In this Act--

"account" means a facility or arrangement through which a financial institution accepts deposits or allows withdrawals, and includes a facility or arrangement for the following--

(a) a fixed term deposit or safety deposit box,

(b) the deposit or withdrawal of, or a transaction involving, digital currency, including a registrable digital currency exchange service.

"agent" includes, if the agent is a corporation, the officers and agents of the corporation.

"appeal" includes a proceeding in the nature of an appeal.

"appropriate court" means--

(a) the Supreme Court, or

(b) for a freezing notice--the court in which proceedings, including committal proceedings, for a serious offence on which the freezing notice is based are held, or

(c) otherwise--the court in which a person is convicted of a drug trafficking offence, a serious offence or a serious drug offence.

"appropriate officer" means--

(a) in any case--the Director of Public Prosecutions or Chief Commissioner of the Law Enforcement Conduct Commission, or

(b) in relation to restraining orders or freezing notices--the Commissioner for the Independent Commission Against Corruption, or

(c) in relation to a function exercised before or in relation to the Local Court (other than a function under Division 2 of Part 3)--the Commissioner of Police, or

(d) in relation to a function prescribed for the purposes of this paragraph by the regulations--a person so prescribed or a person of a class or description so prescribed.

"approved" means approved by the Minister in writing for the purposes of the provision in which the term occurs.

"authorised officer" means--

(a) a member of the Police Force, or

(b) a person authorised in writing by the Minister either generally or in a special case to act as an authorised officer for the purposes of section 43 (restraining orders), Division 1A of Part 3 or Part 4.

"benefit" includes service and advantage.

"confiscation order" means a forfeiture order, pecuniary penalty order or drug proceeds order.

"corresponding law" means a law of another State that is for the time being declared by the regulations to be a law that corresponds to this Act.

"Customs Act" means the Customs Act 1901 of the Commonwealth.

"Customs officer" means an officer of Customs within the meaning of the Customs Act.

"digital currency" has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth.

"director" , in relation to a financial institution or corporation, includes--

(a) if the institution or corporation is a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory--a 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.

"drug proceeds order" means an order made under section 29.

"drug trafficker declaration" has the same meaning as in section 34(1).

"drug trafficking" means any act constituting a drug trafficking offence.

"drug trafficking offence" means an offence under section 24A (possession of precursors for manufacture or production of prohibited drugs) or 25A (offence of supplying prohibited drugs on an ongoing basis) of the Drug Misuse and Trafficking Act 1985 or an offence, involving more than a small quantity of a prohibited plant or prohibited drug within the meaning of that Act, under any of the following sections of that Act--

(a) section 23 (offences with respect to prohibited plants),

(a1) section 23A (offences with respect to enhanced indoor cultivation of prohibited plants in presence of children),

(b) section 24 (manufacture and production of prohibited drugs),

(c) section 25 (supply of prohibited drugs),

(d) section 26 (conspiring),

(e) section 27 (aiding, abetting etc commission of offence in New South Wales),

(f) section 28 (conspiring to commit and aiding etc commission of offence outside New South Wales).

"encumbrance" , in relation to property, includes any interest, mortgage, charge, right, claim and demand in respect of the property.

"executive officer" , in relation to a financial institution or a corporation, means any person, by whatever name called and whether or not he or she is a director of the institution or corporation, who is concerned, or takes part, in the management of the institution or corporation.

"facsimile" includes a reference to any electronic communication device which transmits information in a form from which written material is capable of being reproduced with or without the aid of any other device or article.

"facsimile copy" means a copy obtained by facsimile transmission.

"financial institution" means the following, and includes a registrable digital currency exchange service--

(a) an authorised deposit-taking institution,

(b) a body corporate that is, or if it had been incorporated in Australia would be, a financial corporation within the meaning of the Commonwealth Constitution, section 51(xx).

"fixed term deposit" means an interest bearing deposit lodged for a fixed period.

"forfeiture order" means an order made under section 18 or 34A.

"freezing notice" means a notice issued under section 42C.

"interest" , in relation to property, means--

(a) a legal or equitable estate or interest in the property, or

(b) a right, power or privilege in connection with the property,

whether present or future and whether vested or contingent.

"interstate crime related property declaration" means a declaration or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.

"interstate forfeiture order" means an order or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.

"interstate pecuniary penalty order" means an order or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.

"interstate restraining order" means an order or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.

"interstate serious offence" means an offence (including a common law offence, where relevant) against the laws of another State, being an offence in relation to which an interstate forfeiture order or interstate pecuniary penalty order may be made under a corresponding law of that State.

"monitoring order" means an order made under section 69.

"officer" means a director, secretary, executive officer or employee.

"pecuniary penalty order" means an order made under section 24.

"penalty amount" means--

(a) in relation to a forfeiture order made against a person, the amount specified in relation to the forfeiture order under section 21 (2), or

(b) in relation to a pecuniary penalty order made against a person, the amount that the person is, under the pecuniary penalty order, liable to pay to the State, or

(c) in relation to a drug proceeds order made against a person, the amount that the person is, under the drug proceeds order, liable to pay to the State.

"premises" includes any structure, building, aircraft, vehicle, vessel and place (whether built on or not) and any part thereof.

"prescribed authority" means--

(a) the Commissioner of Police, or

(b) the New South Wales Crime Commission, or

(c) the Independent Commission Against Corruption, or

(d) the Corporate Affairs Commission, or

(e) the Law Enforcement Conduct Commission, or

(f) any other authority or person responsible for the enforcement of the laws of the Commonwealth or of a State or Territory prescribed for the purposes of this definition.

"proceeds" , in relation to a serious offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence.

"production order" means an order made under section 59.

"property" includes real and personal property and any estate or interest in real or personal property, and money, and any debt, and any cause of action for damages (including damages for personal injury), and any other chose in action, and any other right or interest.

"property-tracking document" , in relation to a serious offence, means--

(a) a document relevant to--

(i) identifying, locating or determining property of a person who committed the offence, or

(ii) identifying or locating any document necessary for the transfer of property of a person who committed the offence, or

(b) a document relevant to--

(i) identifying, locating or determining tainted property in relation to the offence, or

(ii) identifying or locating any document necessary for the transfer of tainted property in relation to the offence.

"public promotion" means any of the following--

(a) a film, slide, video tape or any other form of recording from which a visual image can be produced,

(b) a record, tape, compact disk or any other form of recording from which words or sounds can be produced,

(c) a book, newspaper, magazine or other written or pictorial matter,

(d) a radio or television production,

(e) a publication of matter on the Internet,

(f) a live entertainment of any kind.

"registrable digital currency exchange service" has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth.

"relevant offence" , in relation to tainted property, means an offence by reason of the commission of which the property is tainted property.

"relevant period" , in relation to the conviction of a person for a serious offence, means the period of 6 months after--

(a) where the person is to be taken to have been convicted of the offence because of section 5 (1) (a)--the day on which the person was sentenced for the offence, or

(b) where the person is to be taken to have been convicted of the offence because of section 5 (1) (b)--the day on which the order in relation to the offence was made under section 10 of the Crimes (Sentencing Procedure) Act 1999 , or

(c) where the person is to be taken to have been convicted of the offence because of section 5 (1) (c)--the day on which the court took the offence into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 , or

(d) where the person is to be taken to have been convicted of the offence because of section 5 (1) (d)--the day on which the person is taken to have absconded under section 6.

"restraining order" means an order made under section 43 or 43A.

"State" , when not used in a geographical sense, means the Crown in right of New South Wales, and (except in relation to the payment of money to the State) includes a State authority.

"State authority" means a Minister of the Crown, a statutory body representing the Crown, a member of the Police Force or a person or body prescribed by the regulations for the purposes of this definition or of a class or description so prescribed.

"substitutable tainted property" means any property or any interest in property that is capable of being the subject of a substituted tainted property declaration in relation to the serious offence concerned.

"substituted tainted property declaration" means a declaration under section 33.

"tainted property" means property that--

(a) was used in, or in connection with, the commission of a serious offence, or

(b) was substantially derived or realised, directly or indirectly, by any person, from property used in, or in connection with, the commission of a serious offence, or

(c) was substantially derived or realised, directly or indirectly, by any person, as a result of the commission of a serious offence, or

(d) was substantially derived or realised, directly or indirectly, by any person for the depiction of a serious offence, or the expression of the offender's thoughts, opinions or emotions regarding the offence, in any public promotion.

"telephone" includes radio, facsimile and any other communication device.

"unlawfully acquired" has the same meaning as in section 34A(7).

"unlawful activity" means an act or omission that constitutes an offence against a law in force in the Commonwealth, a State or a Territory.

Note : The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(2) A reference in this Act to a person being charged with an offence is a reference to a person being issued with a court attendance notice or being a person against whom an information has been laid.

(3) A reference in this Act to a benefit derived by a person includes a reference to--

(a) a benefit derived, directly or indirectly, by the person, and

(b) a benefit derived, directly or indirectly, by another person at the request or direction of the first person.

(4) A reference in this Act to the property of a person includes a reference to property in respect of which the person has a beneficial interest.

(5) A reference in this Act to acquiring property, or an interest in property, for sufficient consideration is a reference to acquiring the property, or the interest, for a consideration that is sufficient and that, having regard solely to commercial considerations, reflects the value of the property, or the interest.

(6) For the purposes of this Act, a person shall not be regarded as being a director of a financial institution or corporation within the meaning of paragraph (c) of the definition of
"director" in subsection (1) only because the directors act on advice given by that person in the proper performance of the functions attaching--

(a) to his or her professional capacity, or

(b) to his or her business relationship with the directors of the financial institution or corporation.

(7) In this Act--

(a) a reference to a function includes a reference to a power, authority and duty, and

(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

(8) For the purposes of this Act, the Northern Territory and the Australian Capital Territory are regarded as States.

(9) For the purposes of this Act, the
"value of property" (other than cash) in relation to any person holding the property--

(a) if any other person holds an interest in the property, is the market value of the first-mentioned person's beneficial interest in the property (less the amount required to discharge any encumbrance, other than a forfeiture order, on that interest), and

(b) in any other case, is its market value.

(10) Notes included in this Act do not form part of this Act.