South Australian Numbered Acts

CRIMINAL ASSETS CONFISCATION ACT 2005 (NO 19 OF 2005)

TABLE OF PROVISIONS

           Long Title

   PART 1--Preliminary

   1.      Short title
   2.      Commencement
   3.      Interpretation
   4.      Meaning of abscond
   5.      Meaning of convicted of an offence
   6.      Meaning of effective control
   7.      Meaning of proceeds and instrument of an offence
   8.      Meaning of quashing a conviction
   9.      Act binds Crown
   10.     Application of Act
   11.     Interaction with other Acts
   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 a 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 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
   60.     Applying for exclusion orders
   61.     Making compensation orders
   62.     Applying for compensation orders

              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 a forfeiture order if a person has been convicted of a serious offence
   75.     Making an extension order extending the period before property is forfeited
   76.     Excluding property from forfeiture under this Division
   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 a pecuniary penalty order
   97.     Pecuniary penalty orders made in relation to serious offence convictions
   98.     Making of pecuniary penalty order if person has absconded

              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 already the subject of pecuniary penalty
   105.    Property under a person’s effective control
   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--Victims of Crime Fund

   209.    Credits to the Victims of Crime 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
   215.    Immunity from civil liability
   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 the confiscation scheme on sentencing
   225.    Deferral of sentencing pending determination of confiscation order
   226.    Appeals
   227.    Costs
   228.    Interest
   229.    Effect of a person’s death
   230.    Regulations
           SCHEDULE 1--Related amendments, repeals and transitional provisions
           Legislative history