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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Property Confiscation Bill 2000
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Meaning of terms used in this Act 2
4. Confiscable property -- synopsis 2
5. Application of Act to confiscable property 3
Part 2 -- Confiscation of property
6. Unexplained wealth, criminal benefits, substituted
property 4
7. Automatic confiscation of certain property 4
8. Drug trafficker's property 4
9. Effect of confiscation -- registrable real property 6
10. Effect of confiscation -- other property 6
Part 3 -- Identifying and recovering
confiscable property
Division 1 -- Unexplained wealth
11. Applications for unexplained wealth declarations 7
12. Unexplained wealth declarations 7
13. Assessing the value of unexplained wealth 8
14. Unexplained wealth payable to State 9
Division 2 -- Criminal benefits
15. Applications for criminal benefits declarations 9
16. Criminal benefits declarations -- crime-derived
property 9
17. Criminal benefits declarations -- unlawfully acquired
property 10
page i
145--1
Criminal Property Confiscation Bill 2000
Contents
18. Limitations and ancillary orders 10
19. Assessing the value of criminal benefits 11
20. Criminal benefits payable to State 11
Division 3 -- Crime-used property substitution
21. Applications for crime-used property substitution
declaration 12
22. Crime-used property substitution declarations 12
23. Assessing the value of crime-used property 13
24. Substituted property payable to State 14
Division 4 -- Recovery of confiscable property
25. Recovery of unexplained wealth, criminal benefits or
substituted property 14
26. Use of frozen property to meet liability 15
27. Use of effectively controlled property or gifts to meet
liability 15
28. Confiscable property declarations 15
29. Restrictions on confiscation of declared confiscable
property 16
30. Declarations of confiscation 17
31. Notice of confiscation of registrable property 17
32. Variation of declarations 17
Part 4 -- Preventing dealings in confiscable
property
Division 1 -- Seizure of crime-used and crime-
derived property
33. Seizure of crime-used or crime-derived property 18
Division 2 -- Freezing notices for crime-used and
crime-derived property
34. Issue of freezing notices 19
35. Form of freezing notice 19
36. Service and filing of freezing notices 20
37. Statutory declarations required under freezing notice 21
38. Duration of freezing notice -- registrable real
property 22
39. Duration of freezing notice -- other property 22
40. Cancellation of freezing notices 23
page ii
Criminal Property Confiscation Bill 2000
Contents
Division 3 -- Freezing orders for confiscable
property
41. Applications for freezing orders 24
42. Proceedings for freezing orders 24
43. Freezing orders 24
44. Grounds specified in freezing orders 26
45. Scope of freezing orders 26
46. Service of freezing orders 27
47. Statutory declarations about frozen property 28
48. Duration of freezing orders -- registrable real
property 29
49. Duration of freezing orders -- other property 31
Division 4 -- Dealing with seized or frozen property
50. Prohibited dealings 33
51. Effect of dealings in frozen property 34
52. Permitted dealings in mortgaged property 34
Part 5 -- Investigation and search
Division 1 -- Preliminary inquiries
53. Information volunteered by financial institutions 35
54. Preliminary inquiries from financial institutions 35
55. Protection for financial institutions 36
56. Giving false or misleading information 37
Division 2 -- Examinations
57. Applications for orders for examination 37
58. Orders for examination 37
59. Service of orders for examination 39
60. Conduct of examinations 39
61. Complying with examination orders 39
Division 3 -- Production of documents
62. Application for production orders 41
63. Production orders 41
64. Inspection of property-tracking documents 42
65. Complying with production orders 42
66. Variation of production orders 44
Division 4 -- Monitoring financial transactions
67. Applications for monitoring and suspension orders 44
page iii
Criminal Property Confiscation Bill 2000
Contents
68. Monitoring orders and suspension orders 44
69. Compliance with monitoring or suspension order 46
Division 5 -- Secrecy requirements
70. Restricted disclosures 46
71. Making restricted disclosures 47
72. Disclosure to court 49
Division 6 -- Detention, search and seizure
73. Power to detain persons 49
74. Search warrants 50
75. Searching detained persons 51
76. Additional powers 51
77. Later-made documents 53
78. Warrants under other enactments 53
Part 6 -- Objections to confiscation
79. Objections to confiscation of frozen property 54
80. Parties to objection proceedings 54
81. Release of frozen property 54
82. Release of crime-used property 55
83. Release of crime-derived property 56
84. Setting aside orders: other frozen property 57
85. Applications for release of confiscated property 57
86. Parties to proceedings 57
87. Orders to release confiscated property 58
Part 7 -- Management of seized, frozen and
confiscated property
Division 1 -- Control and management of property
88. Management of seized property 60
89. Management of frozen or confiscated property 60
90. DPP's capacity to carry out transactions 61
91. Applications by owner for control and management 61
92. Duties of responsible person 61
Division 2 -- Disposal of deteriorating or
undesirable property
93. Destruction of property on grounds of public interest 62
94. Sale of deteriorating property 62
95. Valuation and inventory of frozen property 63
page iv
Criminal Property Confiscation Bill 2000
Contents
Division 3 -- Management of property by Public
Trustee
96. Public Trustee's power to appoint a manager 63
97. Public Trustee's liability for charges on frozen
property 63
98. Managing interstate property 64
99. Fees payable to Public Trustee 64
100. Obstructing Public Trustee 64
Part 8 -- Court jurisdiction and evidentiary
matters
101. Courts' jurisdiction 65
102. Proceedings 66
103. Appearance by Attorney General 66
104. Stays of proceedings 67
105. Opinion evidence 67
106. Evidence that property is crime-used or crime-derived 68
107. Evidence of offence proceedings 68
108. Transcripts of examinations 68
109. Hearsay evidence 69
110. Evidence of compliance with production orders 69
111. Certificates under Misuse of Drugs Act 1981 69
112. Enforcing compliance with Act or court order 69
Part 9 -- Interests in registrable property
113. Registration of interests in registrable real property 70
114. Registration of interests in other property 71
115. Imputation of knowledge that property is frozen 71
116. Instruments lodged with the Registrar of Titles 72
Part 10 -- Mutual recognition of freezing
orders and confiscation of property
Division 1 -- Registration of WA orders in other
jurisdictions
117. Interstate registration of freezing notices and orders 73
page v
Criminal Property Confiscation Bill 2000
Contents
Division 2 -- Recognition of orders of other
jurisdictions
118. Registration of interstate orders 73
119. Effect of registration of interstate freezing orders 74
120. Effect of registration of interstate confiscation
declarations 74
121. Duration of registration of interstate orders 74
122. Cancellation of registration of interstate orders 75
Division 3 -- Charges on interstate property
123. Creation of charge 75
124. Cessation of charge 76
125. Priority of charge 77
126. Registration of charge on land 77
127. Registration of charge on property except land 77
Part 11 -- Miscellaneous
128. Act binds States and Commonwealth 79
129. Property protected from seizure and confiscation 79
130. Confiscation Proceeds Account 80
131. Payments into and out of the Confiscation Proceeds
Account 80
132. Obstructing police officers 82
133. Later applications, notices, orders or findings 82
134. DPP's power to delegate 82
135. Orders relating to sham transactions 83
136. Proceedings against body corporate 83
137. Liability for carrying out functions under this Act 84
138. Effect of owner's death 84
139. Regulations 85
Part 12 -- Interpretation
140. Confiscation offences 87
141. Confiscable property 87
142. The constituents of a person's wealth 88
143. Unexplained wealth 89
144. Acquiring criminal benefits 89
145. Crime-used property 90
146. Criminal use of property 91
147. Crime-derived property 91
page vi
Criminal Property Confiscation Bill 2000
Contents
148. Lawful acquisition of property 92
149. Service cut off date 92
150. Dealing with property 93
151. Value of property sold by State 93
152. Innocent parties 94
153. Transfer of property for value 95
154. Property-tracking documents 95
155. Effective control of property 96
156. Conviction of a confiscation offence 96
157. Charges for an offence 98
158. Drug traffickers and declared drug traffickers 98
159. Absconding in connection with an offence 99
160. Sham transactions 99
Glossary
page vii
Western Australia
LEGISLATIVE ASSEMBLY
Criminal Property Confiscation Bill 2000
A Bill for
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.
The Parliament of Western Australia enacts as follows:
page 1
Criminal Property Confiscation Bill 2000
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Criminal Property Confiscation
Act 2000.
5 2. Commencement
This Act comes into operation on a day fixed by proclamation.
3. Meaning of terms used in this Act
The Glossary at the end of this Act defines or affects the
meaning of some of the words and expressions used in this Act.
10 4. Confiscable property -- synopsis
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
15 person's lawfully acquired wealth ("unexplained
wealth" -- see section 143);
(b) certain property, services, advantages and benefits
obtained by a person who has been involved in the
commission of a confiscation offence ("criminal
20 benefits" -- see section 144);
(c) property used in or in connection with the commission
of a confiscation offence, or property of equal value
("crime-used property" -- see section 145);
(d) property derived directly or indirectly from the
25 commission of a confiscation offence ("crime-derived
property" -- see section 147);
page 2
Criminal Property Confiscation Bill 2000
Preliminary Part 1
s. 5
(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
5 drug trafficker" -- see section 158).
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
10 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;
15 (b) whether the relevant confiscation offence was
committed before or after the commencement of this
Act;
(c) whether or not anyone has been charged with, or
convicted of, the relevant confiscation offence; and
20 (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
25 (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.
page 3
Criminal Property Confiscation Bill 2000
Part 2 Confiscation of property
s. 6
Part 2 -- Confiscation of property
6. Unexplained wealth, criminal benefits, substituted property
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
5 amount specified in an unexplained wealth declaration, a
criminal benefits declaration or a crime-used property
substitution declaration.
7. Automatic confiscation of certain property
(1) Frozen property is confiscated if an objection to the confiscation
10 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 --
15 (a) the objection, or each objection if there are more than
one, is finally determined;
(b) where the property is subject to a freezing notice -- the
freezing notice is not withdrawn; and
(c) where the property is subject to a freezing order -- the
20 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. Drug trafficker's property
25 (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
page 4
Criminal Property Confiscation Bill 2000
Confiscation of property Part 2
s. 8
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;
5 (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 158(2), the following property is confiscated --
10 (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.
15 (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
20 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
25 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.
page 5
Criminal Property Confiscation Bill 2000
Part 2 Confiscation of property
s. 9
9. Effect of confiscation -- registrable real property
(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
5 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) --
10 (a) any caveat in force in relation to the property is taken to
have been withdrawn; and
(b) 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),
15 sections 50 and 51 and Part 7 apply to the property as if it were
subject to a freezing order.
10. Effect of confiscation -- other property
(1) Property (except registrable real property) that is confiscated
under section 6, 7 or 8 vests absolutely in the State when the
20 section takes effect in relation to the property.
(2) When property (except registrable real property) that is
registrable under an enactment is confiscated, the DPP must
notify the registrar of the confiscation.
page 6
Criminal Property Confiscation Bill 2000
Identifying and recovering confiscable property Part 3
Unexplained wealth Division 1
s. 11
Part 3 -- Identifying and recovering confiscable
property
Division 1 -- Unexplained wealth
11. Applications for unexplained wealth declarations
5 (1) The DPP 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.
10 12. Unexplained wealth declarations
(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 person's wealth is
greater than the value of the person's lawfully acquired wealth.
15 (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
20 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
25 in accordance with section 13; and
(b) specify the assessed value of the unexplained wealth in
the declaration.
page 7
Criminal Property Confiscation Bill 2000
Part 3 Identifying and recovering confiscable property
Division 1 Unexplained wealth
s. 13
(5) The court may make any necessary or convenient ancillary
orders.
13. Assessing the value of unexplained wealth
(1) The value of the respondent's unexplained wealth is the amount
5 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,
10 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
15 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
20 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;
25 (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;
(c) any property, service, advantage or benefit in relation to
which a criminal benefits declaration has been made; or
page 8
Criminal Property Confiscation Bill 2000
Identifying and recovering confiscable property Part 3
Criminal benefits Division 2
s. 14
(d) any property, service, advantage or benefit that has been
taken into account for the purpose of making a crime-
used property substitution declaration against the
respondent.
5 14. Unexplained wealth payable to State
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.
10 Division 2 -- Criminal benefits
15. Applications for criminal benefits declarations
(1) The DPP may apply to the court for a criminal benefits
declaration.
(2) An application may be made in conjunction with an application
15 for a freezing order, in proceedings for the hearing of an
objection to confiscation, or at any other time.
16. Criminal benefits declarations -- crime-derived property
(1) On hearing an application under section 15(1), the court must
declare that the respondent has acquired a criminal benefit if it
20 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;
(b) the respondent is or was involved in the commission of a
confiscation offence; and
25 (c) the property, service, advantage or benefit was directly
or indirectly acquired as a result of the respondent's
involvement in the commission of the confiscation
offence, whether or not it was lawfully acquired.
page 9
Criminal Property Confiscation Bill 2000
Part 3 Identifying and recovering confiscable property
Division 2 Criminal benefits
s. 17
(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.
5 (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 -- unlawfully acquired
10 property
(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
15 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
20 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. Limitations and ancillary orders
25 (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;
page 10
Criminal Property Confiscation Bill 2000
Identifying and recovering confiscable property Part 3
Criminal benefits Division 2
s. 19
(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
5 an unexplained wealth order or a crime-used property
substitution 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
10 (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. Assessing the value of criminal benefits
15 (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,
20 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
25 benefits declaration was made.
20. Criminal benefits payable to State
When the court makes a criminal benefits declaration, the
respondent is liable to pay to the State an amount equal to the
page 11
Criminal Property Confiscation Bill 2000
Part 3 Identifying and recovering confiscable property
Division 3 Crime-used property substitution
s. 21
amount specified in the declaration as the assessed value of the
criminal benefit acquired by the respondent.
Division 3 -- Crime-used property substitution
21. Applications for crime-used property substitution
5 declaration
(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
10 objection to the confiscation of property, or at any other time.
22. Crime-used property substitution declarations
(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 --
15 (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
20 not available for confiscation if --
(a) the respondent does not own, and does not have
effective control of, the property;
(b) where the property was or is owned or effectively
controlled by the respondent, and was or is frozen -- the
25 freezing notice or freezing order has been or is to be set
aside under section 82(3) in favour of the spouse or a
dependant of the respondent; or
page 12
Criminal Property Confiscation Bill 2000
Identifying and recovering confiscable property Part 3
Crime-used property substitution Division 3
s. 23
(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
5 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
10 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
15 (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
20 (b) specify the assessed value of the crime-used property in
the declaration.
(7) The court may make any necessary or convenient ancillary
orders.
23. Assessing the value of crime-used property
25 (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
page 13
Criminal Property Confiscation Bill 2000
Part 3 Identifying and recovering confiscable property
Division 4 Recovery of confiscable property
s. 24
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
5 crime-used property, whether or not the applications for the
respective declarations are heard in the same proceedings.
24. Substituted property payable to State
(1) When a court makes a crime-used property substitution
declaration, the respondent is liable to pay to the State an
10 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
15 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. Recovery of unexplained wealth, criminal benefits or
substituted property
20 (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
25 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.
page 14
Criminal Property Confiscation Bill 2000
Identifying and recovering confiscable property Part 3
Recovery of confiscable property Division 4
s. 26
(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.
5 26. Use of frozen property to meet liability
(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
10 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
15 other process of execution.
(3) Nothing in subsection (1) or (2) limits any other means of
satisfying a debt due to the State under subsection 25(3).
27. Use of effectively controlled property or gifts to meet
liability
20 (1) The DPP 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
25 time.
28. Confiscable property declarations
(1) On hearing an application under section 27 the court may
declare that property that is not owned by the respondent is
page 15
Criminal Property Confiscation Bill 2000
Part 3 Identifying and recovering confiscable property
Division 4 Recovery of confiscable property
s. 29
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
5 notice was issued or the freezing order was made for the
property;
(b) if the property is not frozen -- the respondent
effectively controlled the property at the time that the
application for the unexplained wealth declaration,
10 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
15 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. Restrictions on confiscation of declared confiscable property
20 (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
25 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.
page 16
Criminal Property Confiscation Bill 2000
Identifying and recovering confiscable property Part 3
Recovery of confiscable property Division 4
s. 30
30. Declarations of confiscation
(1) The DPP may apply to the court for a declaration that property
has been confiscated.
(2) On considering an application, if the court finds that the
5 property described in the application has been confiscated under
section 6, 7 or 8, the court must make a declaration to that
effect.
31. Notice of confiscation of registrable property
(1) When the court declares under section 30 that registrable real
10 property has been confiscated, the DPP 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 any enactment except the Transfer of Land
Act 1893 has been confiscated, the DPP must lodge with the
15 registrar --
(a) a copy of the declaration; and
(b) a notice giving particulars of the confiscation.
32. Variation of declarations
If the court has made a declaration under this Part, the DPP may
20 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.
page 17
Criminal Property Confiscation Bill 2000
Part 4 Preventing dealings in confiscable property
Division 1 Seizure of crime-used and crime-derived property
s. 33
Part 4 -- Preventing dealings in confiscable property
Division 1 -- Seizure of crime-used and crime-derived property
33. Seizure of crime-used or crime-derived property
(1) A police officer may seize any property if there are reasonable
5 grounds for suspecting that the property --
(a) is crime-used property;
(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
10 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
15 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
20 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
25 be part of the seized property.
page 18
Criminal Property Confiscation Bill 2000
Preventing dealings in confiscable property Part 4
Freezing notices for crime-used and crime-derived property Division 2
s. 34
Division 2 -- Freezing notices for crime-used and
crime-derived property
34. Issue of freezing notices
(1) The DPP or a police officer may apply to a Justice of the Peace
5 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
10 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 court that the person
is likely to be charged with an offence within 21 days
15 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) Any income or other property derived from the property while
20 the freezing notice is in force is taken to be part of the property.
35. Form of freezing notice
(1) A freezing notice must --
(a) describe the property covered by the notice;
(b) include an estimate of the value of the property;
25 (c) if the property has been removed from the place in
which it was found -- indicate where, when and from
whom it was taken;
(d) summarise the effect of the notice;
page 19
Criminal Property Confiscation Bill 2000
Part 4 Preventing dealings in confiscable property
Division 2 Freezing notices for crime-used and crime-derived property
s. 36
(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
5 within 28 days after the date of service of the notice;
(f) tell the recipient that he or she may be eligible to file an
objection to the confiscation of the property;
(g) give details of the recipient's obligations under section
37; and
10 (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.
15 (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. Service and filing of freezing notices
(1) As soon as practicable after a freezing notice is issued, the
20 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
25 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.
page 20
Criminal Property Confiscation Bill 2000
Preventing dealings in confiscable property Part 4
Freezing notices for crime-used and crime-derived property Division 2
s. 37
(3) If the property is registrable under any enactment except the
Transfer of Land Act 1893, the applicant must notify the
registrar of the issue of the notice.
(4) If, as a result of information in a statutory declaration given, in
5 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
10 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
15 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;
20 (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.
37. Statutory declarations required under freezing notice
25 (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
30 person.
page 21
Criminal Property Confiscation Bill 2000
Part 4 Preventing dealings in confiscable property
Division 2 Freezing notices for crime-used and crime-derived property
s. 38
(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
5 (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. Duration of freezing notice -- registrable real property
10 (1) A freezing notice for registrable real property takes effect 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 (3) in relation to the
15 property is registered under section 113(1).
(3) If --
(a) registrable real property is confiscated under section 6, 7
or 8, but was subject to a freezing notice immediately
before confiscation; or
20 (b) a freezing notice for registrable real property is
cancelled under section 40, or set aside under Part 6,
then the applicant for the freezing notice must lodge a memorial
of the confiscation, cancellation or setting aside with the
Registrar of Titles.
25 39. Duration of freezing notice -- other property
(1) A freezing notice for any property except registrable real
property comes into force when the notice is issued.
page 22
Criminal Property Confiscation Bill 2000
Preventing dealings in confiscable property Part 4
Freezing notices for crime-used and crime-derived property Division 2
s. 40
(2) A freezing notice 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;
5 (b) the freezing notice is cancelled under section 40;
(c) the freezing notice is set aside under Part 6.
(3) When a freezing notice stops being in force for property (except
registrable real property) that is registrable under an enactment, the
applicant for the notice must notify the registrar to that effect.
10 40. Cancellation of freezing notices
(1) A police officer or the DPP must cancel a freezing notice 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 --
15 (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;
(b) if the notice has been filed in a court -- a notice of the
cancellation is filed in the court;
20 (c) any property covered by the notice that is being guarded
under section 33(2)(b) is released from guard;
(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
25 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
30 and return.
page 23
Criminal Property Confiscation Bill 2000
Part 4 Preventing dealings in confiscable property
Division 3 Freezing orders for confiscable property
s. 41
Division 3 -- Freezing orders for confiscable property
41. Applications for freezing orders
(1) The DPP may apply to the court for a freezing order for
property.
5 (2) An application may be made ex parte.
42. Proceedings for freezing orders
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
10 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
15 the whole or any part of the proceedings or of any
information derived from the proceedings.
43. Freezing orders
(1) The court may make a freezing order for property if --
(a) an examination order, a monitoring order or a
20 suspension order is in force in relation to the property;
or
(b) the DPP advises the court that an application for an
examination order, a monitoring order or a suspension
order is likely to be made in relation to the property
25 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 order is made, or is
to be sought, owns or effectively controls the property.
page 24
Criminal Property Confiscation Bill 2000
Preventing dealings in confiscable property Part 4
Freezing orders for confiscable property Division 3
s. 43
(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) an application has been made against the person for an
5 unexplained wealth declaration, criminal benefits
declaration, crime-used property substitution declaration
or production order; or
(b) the DPP advises the court that such an application is
likely to be made within 21 days after the freezing order
10 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
15 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
20 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
25 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
30 property acquired after the order is made --
(a) by the person; or
page 25
Criminal Property Confiscation Bill 2000
Part 4 Preventing dealings in confiscable property
Division 3 Freezing orders for confiscable property
s. 44
(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
5 crime-used or crime-derived.
44. Grounds specified in freezing orders
When considering an application for a freezing order, the court
must --
(a) consider each matter that is alleged by the applicant,
10 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. Scope of freezing orders
15 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;
20 (b) if the property is moveable -- direct that the property is
not to be moved except in accordance with the order;
(c) appoint the DPP, the Public Trustee or the
Commissioner of Police to manage the property while
the order is in force;
25 (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.
page 26
Criminal Property Confiscation Bill 2000
Preventing dealings in confiscable property Part 4
Freezing orders for confiscable property Division 3
s. 46
46. Service of freezing orders
(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
5 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
10 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 any enactment except the
15 Transfer of Land Act 1893, the applicant must notify the
registrar of the issue of the notice.
(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
20 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.
25 (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
30 requirements of subsection (1) or (4).
page 27
Criminal Property Confiscation Bill 2000
Part 4 Preventing dealings in confiscable property
Division 3 Freezing orders for confiscable property
s. 47
(6) The notice must --
(a) summarise the effect of the order;
(b) advise the recipient to the effect that the property
described in the order may be confiscated automatically
5 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;
(c) tell the recipient that he or she may be eligible to file an
objection to the confiscation of the property; and
10 (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.
15 47. Statutory declarations about frozen property
(1) A person who is served in accordance with section 46 with a
copy of a freezing order and a notice must give a statutory
declaration to the officer in charge of the police station specified
in the notice.
20 (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
25 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.
page 28
Criminal Property Confiscation Bill 2000
Preventing dealings in confiscable property Part 4
Freezing orders for confiscable property Division 3
s. 48
48. Duration of freezing orders -- registrable real property
(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).
5 (2) A freezing order for registrable real property stops being in
force when a memorial under subsection (3), (4), (5) or (6) in
relation to the property is registered under section 113(1).
(3) If a freezing order for registrable real property was made under
section 43(1) on the basis that an application for another order
10 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(1)(b) -- an
application for the other order is not made within
15 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
20 for the freezing order or in proceedings on an objection; or
(e) the property is confiscated under section 6, 7 or 8.
(4) 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
25 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)(b) -- an
application for the declaration or other order is not made
30 within 21 days after the date of the freezing order;
page 29
Criminal Property Confiscation Bill 2000
Part 4 Preventing dealings in confiscable property
Division 3 Freezing orders for confiscable property
s. 48
(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
5 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
10 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; or
(f) the property is confiscated under section 6, 7 or 8.
15 (5) 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
20 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;
(b) the charge against the person is disposed of;
(c) the charge is finally determined, but the person is not
25 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; or
30 (e) the property is confiscated under section 6, 7 or 8.
page 30
Criminal Property Confiscation Bill 2000
Preventing dealings in confiscable property Part 4
Freezing orders for confiscable property Division 3
s. 49
(6) 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
5 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.
10 49. Duration of freezing orders -- other property
(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
15 for another order has been or is likely to be made, 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
20 application for the other order is not made within
21 days after the date of the 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;
25 (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 made under section 43(3) on the
30 basis that an application for a declaration or another order has
page 31
Criminal Property Confiscation Bill 2000
Part 4 Preventing dealings in confiscable property
Division 3 Freezing orders for confiscable property
s. 49
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)(b) -- an
5 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
10 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
15 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;
20 (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 --
25 (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;
30 (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;
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Criminal Property Confiscation Bill 2000
Preventing dealings in confiscable property Part 4
Dealing with seized or frozen property Division 4
s. 50
(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 (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
10 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.
Division 4 -- Dealing with seized or frozen property
50. Prohibited dealings
15 (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 --
20 (a) a person acting in accordance with an order under
section 45(c), 91(2) or 93;
(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
25 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 defendant
page 33
Criminal Property Confiscation Bill 2000
Part 4 Preventing dealings in confiscable property
Division 4 Dealing with seized or frozen property
s. 51
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 subsection 33(2) at the relevant time.
(4) It is a defence to a prosecution for an offence under
5 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
10 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.
51. Effect of dealings in frozen property
15 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 --
20 (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
25 the mortgagor in accordance with the mortgage.
page 34
Criminal Property Confiscation Bill 2000
Investigation and search Part 5
Preliminary inquiries Division 1
s. 53
Part 5 -- Investigation and search
Division 1 -- Preliminary inquiries
53. Information volunteered by financial institutions
A financial institution that has information about a transaction
5 with the institution may give the information to the DPP or a
police officer if there are reasonable grounds for suspecting that
the information --
(a) may be relevant to the investigation of a confiscation
offence;
10 (b) may assist a court in deciding whether or not to make an
unexplained wealth declaration, a criminal benefits
declaration or a crime-used property substitution
declaration; or
(c) may otherwise facilitate the operation of this Act or the
15 regulations.
54. Preliminary inquiries from financial institutions
(1) For the purposes of any proceedings under this Act, or for the
purposes of deciding whether to apply for a freezing notice, or
for any order, declaration or warrant under this Act, the DPP or
20 a police officer may require a financial institution to do any or
all of the following --
(a) give information about whether a person described in
the requirement holds an account with the institution;
(b) give information about whether or not an account
25 described in the requirement is held with the institution;
(c) identify an account held with the institution;
(d) identify the holder of an account held with the
institution;
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Division 1 Preliminary inquiries
s. 55
(e) give information about the existence of any other kind
of transaction between the institution and a person
described in the requirement;
(f) if a transaction referred to in paragraph (e) has taken
5 place, is taking place or is to take place -- give
prescribed particulars of the transaction.
(2) A requirement must --
(a) be in writing served on the institution; and
(b) specify the information required.
10 (3) Service of the requirement on the institution may be effected by
properly addressed email or fax, or by any other means provided
by section 76 of the Interpretation Act 1984.
(4) The financial institution must comply with the requirement.
Penalty: $500 000.
15 55. Protection for financial institutions
(1) An action, suit or proceeding in relation to the giving of
information under section 53 does not lie against --
(a) the financial institution that gives the information; or
(b) an officer of the institution acting within his or her
20 authority.
(2) An action, suit or proceeding in relation to a financial
institution's response to a requirement under section 54 does not
lie against --
(a) the financial institution; or
25 (b) an officer of the financial institution who is acting
within his or her authority.
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Investigation and search Part 5
Examinations Division 2
s. 56
56. Giving false or misleading information
A financial institution commits an offence if the institution
knowingly --
(a) provides false or misleading information under
5 section 53; or
(b) provides false or misleading information in purported
compliance with a requirement under section 54.
Penalty: $500 000.
Division 2 -- Examinations
10 57. Applications for orders for examination
(1) The DPP may apply to the District Court for an order for the
examination of a person.
(2) An application may be made ex parte.
58. Orders for examination
15 (1) The court may order a person to submit to an examination about
any or all of the following --
(a) the nature, location and source of frozen property;
(b) the nature, location and source of property that is not
frozen, but is suspected on reasonable grounds of being
20 confiscable;
(c) the wealth, liabilities, income and expenditure of a
person who has been convicted of a confiscation
offence;
(d) the wealth, liabilities, income and expenditure of a
25 person who is suspected on reasonable grounds of being
involved or of having been involved in the commission
of a confiscation offence;
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Division 2 Examinations
s. 58
(e) the wealth, liabilities, income and expenditure of a
person who has, or is suspected on reasonable grounds
of having, unexplained wealth;
(f) the wealth, liabilities, income and expenditure of a
5 declared drug trafficker;
(g) the nature, location and source of any property-tracking
documents.
(2) The examination order may do any or all of the following --
(a) require the person to give to the court any documents
10 (including property-tracking documents) or information
in the person's possession or control about the property
described in the order;
(b) require the person to give to the court any documents
(including property-tracking documents) or information
15 in the person's possession or control about the person's
wealth, liabilities, expenditure or income;
(c) require the person to give to the court any documents
(including property-tracking documents) or information
in the person's possession or control about another
20 person's wealth, liabilities, expenditure or income;
(d) require the person to give to the court any information in
the person's possession or control that could help to
locate, identify or quantify any property, property-
tracking documents, other documents or information
25 referred to in subsection (1);
(e) require the person to give any required information by
affidavit, or require the person to attend the court for
examination, or both;
(f) give any directions, or make any ancillary orders, that
30 are necessary or convenient for giving effect to the
examination order or for ensuring that the person
complies with the order.
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Investigation and search Part 5
Examinations Division 2
s. 59
59. Service of orders for examination
(1) The applicant for an examination order must arrange for a copy
of the order to be served personally on the person to be
examined.
5 (2) A copy of the order is not to be served on anyone except the
person to be examined.
60. Conduct of examinations
(1) An examination is to be held in camera.
(2) The person to be examined may be represented by his or her
10 legal representative.
61. Complying with examination orders
(1) If an owner of frozen property, who is to be examined in
connection with the property under an examination order,
contravenes the order or the examiner's requirements under the
15 order --
(a) the owner is not entitled to file an objection to the
confiscation of the property;
(b) if the owner has already filed an objection -- the
objection is of no effect; and
20 (c) the owner commits an offence.
(2) A person who commits an offence under subsection (1)(c) is
liable --
(a) to a maximum fine of an amount equal to the value of
the frozen property or of $100 000, whichever is greater;
25 (b) to imprisonment for a maximum of 5 years; or
(c) to both a fine under paragraph (a) and imprisonment
under paragraph (b).
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Division 2 Examinations
s. 61
(3) If a person examined under an examination order in connection
with another person's wealth, liabilities, income or expenditure
contravenes the order, or the examiner's requirements under the
order, the person commits an offence and is liable --
5 (a) to a maximum fine of an amount equal to the value of
the frozen property or of $50 000, whichever is greater;
(b) to imprisonment for a maximum of 2 years; or
(c) to both a fine under paragraph (a) and imprisonment
under paragraph (b).
10 (4) Without limiting subsection (1), (2) or (3), a person who is
examined under an examination order contravenes the order for
the purposes of the respective subsection if --
(a) the person fails to disclose material information, or
gives false information or a false document, in purported
15 compliance with the order; and
(b) the person was aware, or could reasonably have been
expected to have been aware, that the information was
material, or that the information or document was false.
(5) A person is not entitled to contravene an examination order or
20 the examiner's requirements under the order on the grounds that
complying with the order --
(a) might incriminate the person or might render him or her
liable to a penalty; or
(b) could result in the confiscation of property.
25 (6) A person is not excused from complying with an examination
order on the grounds that complying with the order would be in
breach of an obligation of the person not to disclose
information, or not to disclose the existence or contents of a
document, whether the obligation arose under an enactment or
30 otherwise.
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Production of documents Division 3
s. 62
(7) A statement or disclosure made by a person in the course of
complying with an examination order is admissible as evidence
against the person --
(a) in a proceeding against the person for an offence under
5 this section;
(b) in any civil proceeding; and
(c) in any proceeding under this Act that could lead to the
confiscation of property owned, effectively controlled or
given away by the person, but only for the purpose of
10 facilitating the identification of such property.
Division 3 -- Production of documents
62. Application for production orders
(1) The DPP may apply to the District Court for a production order
for a property-tracking document.
15 (2) An application may be made ex parte.
63. Production orders
(1) On hearing an application under section 62, the court must
order a person identified in the application to produce the
property-tracking document described in the application if there
20 are reasonable grounds for suspecting that the person has the
document in his or her possession or control.
(2) The order may direct the person --
(a) to give the property-tracking document to the DPP or a
police officer; or
25 (b) to make it available to the DPP or a police officer for
inspection.
(3) The order must specify the time and place for the document to
be given or made available.
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Part 5 Investigation and search
Division 3 Production of documents
s. 64
64. Inspection of property-tracking documents
(1) When a property-tracking document is given to the DPP
or a police officer in accordance with a direction under
section 63(2)(a), the DPP or police officer may do any
5 or all of the following --
(a) inspect the document;
(b) take extracts from the document;
(c) make copies of the document;
(d) retain the document for as long as its retention is
10 reasonably required for the purposes of this Act.
(2) If the DPP or police officer retains the property-tracking
document, the DPP or police officer must, on the request of the
person required by the order to produce the document --
(a) permit the person to inspect the document, take extracts
15 from it or make copies of it; or
(b) give the person a copy of the document certified by the
DPP or police officer in writing to be a true copy of the
document.
(3) When a property-tracking document is made available to the
20 DPP or a police officer for inspection in accordance with a
direction under section 63(2)(b), the DPP or police officer may
do any one or more of the following --
(a) inspect the document;
(b) take extracts from the document;
25 (c) make copies of the document.
65. Complying with production orders
(1) A person who contravenes a production order without
reasonable excuse commits an offence.
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Criminal Property Confiscation Bill 2000
Investigation and search Part 5
Production of documents Division 3
s. 65
(2) A person commits an offence if the person, in purported
compliance with a production order, produces or makes
available to the DPP or a police officer a document that the
person knows, or could reasonably be expected to know, is false
5 or misleading in a material particular.
(3) However, the person does not commit an offence under
subsection (2) if, as soon as practicable after becoming aware
that the document is false or misleading, the person --
(a) tells the DPP or a police officer that the document is
10 false or misleading;
(b) indicates the respects in which it is false or misleading;
and
(c) gives the DPP or a police officer any correct information
which is in the person's possession or control.
15 (4) A person convicted of an offence under subsection (1) or (2) is
liable to a fine not exceeding $100 000 or imprisonment for a
period not exceeding 5 years, or both.
(5) A person is not excused from complying with a production order
on the grounds that complying with the order would tend to
20 incriminate the person or render him or her liable to a penalty.
(6) A person is not excused from complying with a production
order on the grounds that complying with the order would be in
breach of an obligation of the person not to disclose the
existence or contents of the document, whether the obligation
25 arose under an enactment or otherwise.
(7) Any information contained in a property-tracking document
produced under a production order, or any statement or disclosure
made by a person in the course of complying with a production
order, is admissible in evidence against the person --
30 (a) in a proceeding against the person for an offence under
this section;
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Part 5 Investigation and search
Division 4 Monitoring financial transactions
s. 66
(b) in any civil proceeding; and
(c) in any proceeding under this Act that could lead to the
confiscation of property owned, effectively controlled or
given away by the person, but only for the purpose of
5 facilitating the identification of such property.
66. Variation of production orders
(1) If a production order requires a person to give a
property-tracking document to the DPP or a police officer, the
person may apply to the court that made the order to vary it so
10 that it requires the person to make the document available to the
DPP or a police officer for inspection.
(2) The court may vary the order accordingly if it finds that the
document is essential to the business activities of the person.
Division 4 -- Monitoring financial transactions
15 67. Applications for monitoring and suspension orders
(1) The DPP may apply to the District Court for a monitoring order.
(2) The DPP may apply to the District Court for a suspension order.
(3) An application may be made ex parte.
68. Monitoring orders and suspension orders
20 (1) The court may order a financial institution to give information
to the DPP or a police officer about all transactions carried out
through an account held with the institution by a person named
in the order.
(2) The court may order a financial institution --
25 (a) to notify the DPP or a police officer immediately of any
transaction that has been initiated in connection with an
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Criminal Property Confiscation Bill 2000
Investigation and search Part 5
Monitoring financial transactions Division 4
s. 68
account held with the institution by a person named in
the order;
(b) to notify the DPP or a police officer immediately if there
are reasonable grounds for suspecting that a transaction
5 is about to be initiated in connection with the account;
and
(c) to refrain from completing or effecting the transaction
for 48 hours.
(3) The court may make a monitoring order or suspension order if
10 there are reasonable grounds for suspecting that the named
person --
(a) has been, or is about to be, involved in the commission
of a confiscation offence;
(b) has acquired, or is about to acquire, directly or
15 indirectly, any crime-derived property; or
(c) has benefited, or is about to benefit, directly or
indirectly, from the commission of a confiscation
offence.
(4) A monitoring order or suspension order applies to all
20 transactions carried out or to be carried out through the bank
account during the monitoring period or suspension period
specified in the order.
(5) The monitoring order or suspension order must specify --
(a) the financial institution to which the order applies;
25 (b) the name or names in which the account is believed to
be held;
(c) the class of information that the institution is required to
give;
(d) the manner in which the information is to be given; and
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Criminal Property Confiscation Bill 2000
Part 5 Investigation and search
Division 5 Secrecy requirements
s. 69
(e) the monitoring period, or suspension period, in
accordance with subsection (6).
(6) The monitoring period or suspension period --
(a) is not to commence earlier than the day on which notice
5 of the order is served on the financial institution; and
(b) is not to end more than 3 months after the date of the
order.
69. Compliance with monitoring or suspension order
A person commits an offence if the person knowingly --
10 (a) contravenes a monitoring order or suspension order; or
(b) provides false or misleading information in purported
compliance with the order.
Penalty: $100 000.
Division 5 -- Secrecy requirements
15 70. Restricted disclosures
(1) A person must not make a disclosure to anyone, except as
permitted under section 71, about --
(a) the fact that a financial institution, or an officer of a
financial institution, intends to give or has given
20 information to the DPP under section 53;
(b) the nature of any information given under section 53;
(c) the fact that a requirement or a response to it has been or
is to be made under section 54;
(d) the content of a requirement or response made under
25 section 54;
(e) the fact that the person or anyone else is or has been
subject to a production order, an examination order, a
monitoring order or a suspension order; or
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Criminal Property Confiscation Bill 2000
Investigation and search Part 5
Secrecy requirements Division 5
s. 71
(f) the contents of any examination order, production order,
monitoring order or suspension order.
Penalty: $100 000, or imprisonment for 5 years, or both.
(2) Without limiting subsection (1), a person makes a disclosure for
5 the purposes of the subsection if the person --
(a) discloses information to a person from which the person
could reasonably be expected to infer that a requirement
or response under section 54 has been or is to be made;
(b) discloses information to a person from which the person
10 could reasonably be expected to infer anything about the
nature or contents of a requirement or response under
section 54;
(c) makes or keeps a record of any information about a
requirement or response under section 54;
15 (d) discloses anything about the existence or operation of an
examination order, a production order, a monitoring
order or a suspension order;
(e) discloses information to a person from which the person
could reasonably be expected to infer anything about the
20 existence or operation of an examination order, a
production order, a monitoring order or a suspension
order; or
(f) makes or keeps a record of any information about the
existence or operation of an examination order, a
25 production order, a monitoring order or a suspension
order.
71. Making restricted disclosures
(1) A corporation, or an officer of a corporation, may make a
restricted disclosure to any one or more of the following --
30 (a) the DPP or a police officer;
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Division 5 Secrecy requirements
s. 71
(b) an officer of the corporation, for the purpose of giving
information under section 53;
(c) an officer of the corporation, for the purpose of ensuring
that a requirement under section 54 is complied with;
5 (d) an officer of the corporation, for the purpose of ensuring
that an examination order, a production order, a
monitoring order or a suspension order is complied with;
(e) a legal practitioner, for the purpose of obtaining legal
advice or representation in relation to giving information
10 under section 53 or complying with a requirement under
section 54;
(f) a legal practitioner, for the purpose of obtaining legal
advice or representation in relation to an examination
order, a production order, a monitoring order or a
15 suspension order.
(2) An individual who is not acting in the capacity of an officer of a
corporation or of a legal practitioner may make a restricted
disclosure to either or both of the following --
(a) the DPP or a police officer; or
20 (b) a legal practitioner, for the purpose of obtaining legal
advice or representation in relation to an examination
order.
(3) A legal practitioner to whom a restricted disclosure is made
under subsection (1) or (2) may make a restricted disclosure to a
25 person to whom the disclosure could have been made under the
respective subsection for the purpose of giving legal advice or
representing a person in relation to the matter disclosed.
(4) A person (except a legal practitioner) to whom a restricted
disclosure is made under subsection (1) or (2) may make a
30 restricted disclosure to a person to whom the disclosure could
have been made under the respective subsection.
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Detention, search and seizure Division 6
s. 72
(5) However, if a restricted disclosure about a particular matter may
only be made under subsection (1) or (2) in particular
circumstances or for a particular purpose, then a person must
not make a restricted disclosure under subsection (4) about the
5 matter except in those circumstances or for that purpose.
(6) If a person to whom a restricted disclosure about a particular
matter is made under this section stops being a person of a kind
to whom the disclosure may be made, the person must not, in
any circumstances, make a restricted disclosure about the matter
10 to anyone.
72. Disclosure to court
A person is not required to make a restricted disclosure to any
court for any purpose.
Division 6 -- Detention, search and seizure
15 73. Power to detain persons
(1) A police officer may, at any time, stop and detain a person if
there are reasonable grounds for suspecting that the person has
confiscable property, or property-tracking documents, in his or
her possession.
20 (2) A police officer may, at any time, stop and detain a person if
there are reasonable grounds for suspecting that another person
is holding confiscable property, or property-tracking documents,
on behalf of the person to be detained.
(3) For the purpose of exercising his or her functions under
25 subsection (1) or (2), a police officer may stop and detain a
vehicle.
(4) When a police officer detains a person under subsection (1)
or (2), the officer may --
(a) search the person in accordance with section 75; and
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Criminal Property Confiscation Bill 2000
Part 5 Investigation and search
Division 6 Detention, search and seizure
s. 74
(b) search any baggage, package, vehicle or anything else
apparently in the possession or under the control of the
person.
(5) When exercising his or her functions under this section, a police
5 officer may use any necessary force and any assistance the
officer thinks necessary.
74. Search warrants
(1) A police officer may apply to a Justice of the Peace for a search
warrant.
10 (2) A Justice of the Peace may issue a warrant to search any
vehicle, premises or place if satisfied, by information on oath,
that there are reasonable grounds for suspecting that any
confiscable property, or any property-tracking documents --
(a) is or are in or on the vehicle, premises or place; or
15 (b) will be in or on the vehicle, premises or place within the
next 72 hours.
(3) The search warrant may authorise a police officer to do any or
all of the following, using any necessary force and with any
assistance the officer thinks necessary --
20 (a) enter the vehicle, premises or place described in the
warrant;
(b) search the vehicle, premises or place;
(c) search any baggage, package or anything else found in
or on the vehicle, premises or place;
25 (d) detain any person in or on the vehicle, premises or place
and search the person in accordance with section 75.
(4) A warrant --
(a) may be executed at any time of night or day; and
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Investigation and search Part 5
Detention, search and seizure Division 6
s. 75
(b) continues in force for 30 days after the day on which it
was issued.
75. Searching detained persons
(1) When a police officer exercises his or her power to search a
5 person under section 73 or under a warrant under section 74, the
officer must ensure that the person is searched by a person of
the same sex or a medical practitioner.
(2) If a suitable person is not available to search the detained person
as required by subsection (1), the police officer may --
10 (a) continue to detain the person for as long as is reasonably
necessary for a suitable person to become available; and
(b) if appropriate, convey the person to a place where a
suitable person is available.
76. Additional powers
15 (1) When a police officer exercises any of his or her powers under
section 73 or under a warrant under section 74, the officer may
do any or all of the following --
(a) seize and detain any documents found in the course of
exercising those powers if there are reasonable grounds
20 for suspecting that they are property-tracking
documents;
(b) take extracts from or make copies of, or download or
print out, any property-tracking documents found in the
course of exercising those powers;
25 (c) require a person who has control of any property-
tracking documents found in the course of exercising
those powers to make copies of, or download or print
out, any property-tracking documents found in the
course of exercising those powers;
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Division 6 Detention, search and seizure
s. 76
(d) require a person to give to the officer any information
within the person's knowledge or control that is relevant
to locating property that is reasonably suspected of
being confiscable;
5 (e) require a person to give to the officer any information
within the person's knowledge or control that is relevant
to determining whether or not property is confiscable;
(f) require a person to give the officer, or arrange for the
officer to be given, any translation, codes, passwords or
10 other information necessary to gain access to or to
interpret and understand any property-tracking documents
or information located or obtained in the course of
exercising the officer's powers under the warrant.
(2) A person who, without lawful excuse, contravenes a
15 requirement commits an offence.
Penalty: $100 000 or imprisonment for 5 years, or both.
(3) Without limiting subsection (2), a person contravenes a
requirement if the person --
(a) does not disclose material information of which the
20 person had knowledge, or gives false information or a
false document, in purported compliance with the
requirement; and
(b) was aware, or could reasonably have been expected to
have been aware, that the information was material, or
25 that the information or document was false.
(4) A person is not excused from complying with a requirement on
the grounds that complying with it would tend to incriminate the
person or render him or her liable to a penalty, but any
information given in compliance with the requirement is not
30 admissible in evidence in proceedings against the person for any
offence except an offence under subsection (2).
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Investigation and search Part 5
Detention, search and seizure Division 6
s. 77
77. Later-made documents
If a warrant under section 74 authorises any action to be taken
in relation to a document that was in existence at the time that
the warrant was issued, but at the time that the warrant was
5 executed it was physically impossible for the document to be
produced, then a police officer may take the action when the
document becomes available.
78. Warrants under other enactments
Nothing in this Act affects the operation of any other enactment
10 requiring or authorising a police officer to obtain a warrant to
enter or search property.
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Criminal Property Confiscation Bill 2000
Part 6 Objections to confiscation
s. 79
Part 6 -- Objections to confiscation
79. Objections to confiscation of frozen property
(1) A person may file an objection to the confiscation of frozen
property.
5 (2) If a copy of the freezing notice or freezing order was served on
the objector, the objection must be filed --
(a) within 28 days after the day on which the copy of the
notice or order was served on the objector; or
(b) within any further time allowed by the court.
10 (3) If a copy of the freezing notice or freezing order was not served
on the objector, the objection must be filed --
(a) within 28 days after the day on which the objector
becomes aware, or could reasonably be expected to have
become aware, that the property has been frozen; or
15 (b) within any further time allowed by the court.
(4) The court may allow further time under subsection (2) or (3)
even if the time for filing the objection has expired.
80. Parties to objection proceedings
The State is a party to proceedings on an objection.
20 81. Release of frozen property
(1) On hearing an objection to the confiscation of frozen property,
the court may set aside the freezing notice or freezing order to
the extent permitted under section 82, 83 or 84.
(2) However, if the property was frozen on 2 or more grounds, but
25 the court does not set aside the freezing notice or freezing order
in relation to both or all the grounds, the freezing notice or
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Criminal Property Confiscation Bill 2000
Objections to confiscation Part 6
s. 82
freezing order continues in force as if it had been made on each
remaining ground.
82. Release of crime-used property
(1) The court may set aside a freezing notice or freezing order for
5 property that was frozen on the ground that it is crime-used if
the objector establishes that it is more likely than not that the
property is not crime-used.
(2) If the court finds that the property is crime-used, or is not
required to decide whether the property is crime-used, the court
10 may make an order under subsection (3) or (4).
(3) The court may set aside the freezing notice or freezing order for
the property if the objector establishes that it is more likely than
not that --
(a) the objector is the spouse or a dependant of an owner of
15 the property;
(b) the objector is an innocent party, or is less than 18 years
old;
(c) the objector was usually resident on the property at the
time the relevant confiscation offence was committed, or
20 is most likely to have been committed;
(d) the objector was usually resident on the property at the
time the objection was filed;
(e) the objector has no other residence at the time of hearing
the objection;
25 (f) the objector would suffer undue hardship if the property
is confiscated; and
(g) it is not practicable to make adequate provision for the
objector by some other means.
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Part 6 Objections to confiscation
s. 83
(4) The court may set aside the freezing notice or freezing order if
the objector establishes that is more likely than not that --
(a) the objector is the owner of the property, or is one of 2
or more owners of the property;
5 (b) the objector is an innocent party in relation to the
property; and
(c) each other owner (if there are more than one) is an
innocent party in relation to the property.
(5) If the objector establishes the matters set out in
10 paragraphs (4)(a) and (b), but fails to establish the matter
set out in subsection (4)(c), the court may order that, when the
property is sold after confiscation, the objector is to be paid an
amount equal to the amount that bears to the net proceeds of the
sale of the property the same proportion as the objector's share
15 of the property bears to the whole property.
(6) In an order under subsection (5), the court is to specify the
proportion that it finds to be the objector's share of the property.
(7) On the application of the DPP or an owner of the property, the
court may set aside the freezing notice or freezing order for the
20 property if it also orders the objector to pay to the State an
amount equal to the value of the property.
(8) Sections 22(6), 22(7), 23, 24, 25 and 26 apply in relation to
making an order under subsection (7) and to the objector as if
the order was a crime-used property substitution declaration and
25 the objector was the respondent in relation to the declaration.
83. Release of crime-derived property
The court may set aside a freezing notice or freezing order for
property that was frozen on the ground that it is crime-derived if
the objector establishes that it is more likely than not that the
30 property is not crime-derived.
page 56
Criminal Property Confiscation Bill 2000
Objections to confiscation Part 6
s. 84
84. Setting aside orders: other frozen property
(1) The court may set aside a freezing order for property that was
frozen under section 43(3) if the court finds that it is more likely
than not that the person who is or will be the respondent to the
5 unexplained wealth declaration, criminal benefits declaration or
crime-used property substitution declaration does not own or
effectively control the property, and has not at any time given it
away.
(2) The court may set aside a freezing order for property that was
10 frozen under section 43(5) if the court finds that it is more likely
than not that the person who is or will be charged with the
offence does not own or effectively control the property, and
has not at any time given it away.
(3) The court may make any necessary or convenient ancillary orders.
15 85. Applications for release of confiscated property
(1) A person may apply to the court for the release of property that
has been confiscated under section 6 or 7.
(2) The application must be made within 28 days after the person
became aware, or can reasonably be expected to have become
20 aware, that the property has been confiscated.
86. Parties to proceedings
The State is a party to proceedings on an application under
section 85.
page 57
Criminal Property Confiscation Bill 2000
Part 6 Objections to confiscation
s. 87
87. Orders to release confiscated property
(1) On hearing an application under section 85, the court may order
the release of any property except crime-derived property if it is
more likely than not that --
5 (a) immediately before the confiscation of the property, the
applicant owned the property, or was one of 2 or more
owners of the property;
(b) the applicant did not become aware, and can not
reasonably be expected to have become aware, until
10 after the property was confiscated, that the property was
liable to confiscation under section 6 or 7;
(c) the applicant is or was an innocent party in relation to
the property; and
(d) each other owner (if there are more than one) is or was
15 an innocent party in relation to the property.
(2) If the court orders the release of the property --
(a) if the property is money -- an amount equal to the
amount of the money is to be paid to the objector from
the Confiscation Proceeds Account;
20 (b) if the property is not money, and has not been disposed
of -- the property is to be given to the objector; and
(c) if the property is not money, and has been sold -- an
amount equal to the net proceeds of the sale is to be paid
to the objector from the Confiscation Proceeds Account.
25 (3) If the objector establishes the matters set out in
subsection (1)(a), (b) and (c), but fails to establish the matter
set out in subsection (1)(d), the court may order the release of
the objector's share of the property.
(4) In an order under subsection (3) the court is to specify the
30 proportion that it finds to be the objector's share of the property.
page 58
Criminal Property Confiscation Bill 2000
Objections to confiscation Part 6
s. 87
(5) If the court makes an order under subsection (3), the objector is
to be paid out of the Confiscation Proceeds Account --
(a) if the property is money -- an amount equal to the
objector's share of the money; and
5 (b) if the property is not money -- an amount equal to the
amount that bears to the net proceeds of the sale of the
property the same proportion as the objector's share of
the property bears to the whole property.
(6) The court may make any necessary or convenient ancillary
10 orders.
page 59
Criminal Property Confiscation Bill 2000
Part 7 Management of seized, frozen and confiscated property
Division 1 Control and management of property
s. 88
Part 7 -- Management of seized, frozen and
confiscated property
Division 1 -- Control and management of property
88. Management of seized property
5 (1) The Commissioner of Police has responsibility for the control
and management of property seized under section 33(1) or
under a warrant under section 74.
(2) The power conferred by section 9 of the Police Act 1892 is
taken to include power to make orders as to the performance by
10 members of the Police Force on behalf of the Commissioner of
Police of functions conferred on the Commissioner of Police by
this Act.
89. Management of frozen or confiscated property
(1) The DPP has responsibility for the control and management of
15 frozen property unless the court otherwise orders under
section 45(c) or 91(2).
(2) The DPP has responsibility for the control and management of
confiscated property until it is disposed of.
(3) The DPP may appoint any of the following persons to manage
20 property for which the DPP has responsibility under
subsection (1) or (2) --
(a) the Public Trustee;
(b) the Commissioner of Police;
(c) in the case of frozen property -- a person who owns the
25 property.
page 60
Criminal Property Confiscation Bill 2000
Management of seized, frozen and confiscated property Part 7
Control and management of property Division 1
s. 90
90. DPP's capacity to carry out transactions
To facilitate the destruction, sale or other disposal of property
under this Act, the DPP may enter into a contract, and may
execute a transfer or other instrument.
5 91. Applications by owner for control and management
(1) An owner of frozen property may apply to the court for an order
under subsection (2) in relation to the property.
(2) On hearing an application, the court may, if it thinks fit, by
order appoint the person --
10 (a) to control and manage the property while the freezing
notice or freezing order is in force; or
(b) to sell or destroy the property.
92. Duties of responsible person
A person who has responsibility for the control or management
15 of property under this Act or under an order under this Act,
must take reasonable steps to ensure that the property is
appropriately stored or appropriately managed, and that it is
appropriately maintained, until one of the following happens in
accordance with this Act --
20 (a) the property is returned to the person from whom it was
seized or to a person who owns it;
(b) another person becomes responsible for the control and
management of the property;
(c) the property is sold or destroyed; or
25 (d) the property is otherwise disposed of.
page 61
Criminal Property Confiscation Bill 2000
Part 7 Management of seized, frozen and confiscated property
Division 2 Disposal of deteriorating or undesirable property
s. 93
Division 2 -- Disposal of deteriorating or undesirable property
93. Destruction of property on grounds of public interest
(1) A person who has responsibility for the control or management
of seized, frozen or confiscated property may apply to the court
5 for an order under subsection (2).
(2) On hearing an application, the court may order that the property
is to be destroyed if it would not be in the public interest to
preserve the property.
94. Sale of deteriorating property
10 (1) A person who has responsibility for the control or management
of frozen property may apply to the court for an order under
subsection (2).
(2) The court may order that the property is to be sold if it is more
likely than not that --
15 (a) the property is or will be subject to substantial waste or
loss of value if it is retained until it is dealt with under
another provision of this Act; or
(b) the cost of managing or protecting the property will
exceed the value of the property if it is retained until it is
20 dealt with under another provision of this Act.
(3) If the Public Trustee has the control or management of frozen
property under this Act, the Public Trustee may sell the property
in the circumstances referred to in subsection (2), without
obtaining an order under that subsection, if --
25 (a) the Public Trustee gives adequate notice of the proposed
sale to the owner of the property; and
(b) the owner does not file an objection to the sale in the
court that made the freezing order.
page 62
Criminal Property Confiscation Bill 2000
Management of seized, frozen and confiscated property Part 7
Management of property by Public Trustee Division 3
s. 95
(4) When frozen property is sold under an order under
subsection (1), or under subsection (2), the net proceeds of the
sale are taken to be frozen property that is subject to the
freezing notice or freezing order made in respect of the sold
5 property.
95. Valuation and inventory of frozen property
(1) A person who has the control or management of frozen property
under this Act may do either or both of the following --
(a) arrange for the property to be valued by an appropriately
10 qualified valuer;
(b) arrange for an inventory to be taken of any fittings,
fixtures or moveable goods in or on the property.
(2) The person must arrange for a copy of the inventory to be
served on each person on whom a copy of the freezing notice or
15 freezing order was served under section 36 or 46.
Division 3 -- Management of property by Public Trustee
96. Public Trustee's power to appoint a manager
If the Public Trustee has the control or management of property
under this Act, the Public Trustee may appoint a person to
20 exercise all or any of the Public Trustee's functions in relation
to the property.
97. Public Trustee's liability for charges on frozen property
(1) If State taxes imposed on frozen or confiscated property fall due
while the property is under the control or management of the
25 Public Trustee, the Public Trustee is liable for the taxes only to
the extent of any rents and profits received by the Public Trustee
in respect of the property.
page 63
Criminal Property Confiscation Bill 2000
Part 7 Management of seized, frozen and confiscated property
Division 3 Management of property by Public Trustee
s. 98
(2) If the property is a business, the Public Trustee is not liable
for --
(a) any payment in respect of long service leave for which
the business or the owner of the business is liable; or
5 (b) any payment in respect of long service leave to which a
person employed by the Public Trustee to manage the
business, or the legal personal representative of such a
person, becomes entitled as a result of managing the
business, after the date of the freezing order.
10 98. Managing interstate property
(1) The Public Trustee may make an agreement for the management
of property frozen under a registered interstate freezing order
with an official who is required under the order to take control
of the property.
15 (2) The Public Trustee may exercise, in accordance with the
agreement, the same functions in relation to the property as the
official would be able to exercise under the order if the property
were in the State in which the order was made.
99. Fees payable to Public Trustee
20 The Public Trustee is entitled to receive the fees prescribed by
or under the Public Trustee Act 1941 for exercising its functions
under this Act in relation to frozen or confiscated property.
100. Obstructing Public Trustee
A person must not hinder or obstruct the Public Trustee, or a
25 Deputy Public Trustee, or an officer, servant or agent of the
Public Trustee, in exercising the functions of the Public Trustee
under this Act.
Penalty: $100 000 or imprisonment for 5 years, or both.
page 64
Criminal Property Confiscation Bill 2000
Court jurisdiction and evidentiary matters Part 8
s. 101
Part 8 -- Court jurisdiction and evidentiary matters
101. Courts' jurisdiction
(1) The Supreme Court has jurisdiction in any proceedings on an
application under this Act.
5 (2) The District Court has jurisdiction to hear and determine an
application under this Act in connection with property if --
(a) the property is not registrable real property; and
(b) the value of the property is not more than $250 000.
(3) A Local Court has jurisdiction to hear and determine an
10 application in relation to property for a declaration or order of a
kind listed in subsection (4) if --
(a) the property is not registrable real property; and
(b) the value of the property is not more than $25 000.
(4) For the purposes of subsection (3), the following declarations
15 and orders are listed --
(a) a criminal benefits declaration;
(b) a crime-used property substitution declaration;
(c) a freezing order;
(d) a production order;
20 (e) a monitoring order;
(f) a suspension order.
(5) With the consent of both the applicant and the respondent, the
court of petty sessions may hear and determine an objection or
an application for an unexplained wealth declaration, a criminal
25 benefits declaration or a crime-used property substitution
declaration.
page 65
Criminal Property Confiscation Bill 2000
Part 8 Court jurisdiction and evidentiary matters
s. 102
(6) A declaration, order, finding or decision of a court under this
Act in relation to property is not invalid only because the value
of the property exceeds the maximum permitted to be dealt with
by the court under this section.
5 (7) Part VI of the District Court of Western Australia Act 1969
applies to proceedings on an application under this Act as if a
reference in the first-mentioned Act to an action were a
reference to an application under this Act.
(8) Nothing in this section affects the jurisdiction of a court in
10 criminal proceedings under this Act.
102. Proceedings
(1) Proceedings on an application under this Act are taken to be
civil proceedings for all purposes.
(2) Except in relation to an offence under this Act --
15 (a) a rule of construction that is applicable only in relation
to the criminal law does not apply in the interpretation
of this Act;
(b) the rules of evidence applicable in civil proceedings
apply in proceedings under this Act;
20 (c) the rules of evidence applicable only in criminal
proceedings do not apply in proceedings under this Act;
and
(d) a question of fact to be decided by a court in
proceedings on an application under this Act is to be
25 decided on the balance of probabilities.
103. Appearance by Attorney General
The Attorney General may appear in any proceedings under this
Act in which the State has an interest, whether or not the DPP is
also a party to the proceedings.
page 66
Criminal Property Confiscation Bill 2000
Court jurisdiction and evidentiary matters Part 8
s. 104
104. Stays of proceedings
The fact that criminal proceedings under this Act or any other
enactment have been instituted or have commenced is not a
ground on which the court may stay proceedings under this Act
5 that are not criminal proceedings.
105. Opinion evidence
(1) For the purposes of making an unexplained wealth declaration
or a criminal benefits declaration, the court may receive
evidence of the opinion of a person of a kind listed in
10 subsection (2) who is experienced in the investigation of illegal
activities involving plants or drugs, about the following
matters --
(a) the amount that was the market value at a particular time
of a particular kind of plant or drug;
15 (b) the amount, or range of amounts, ordinarily paid at a
particular time for doing anything in relation to a
particular kind of plant or drug.
(2) For the purposes of subsection (1), the following persons are
listed --
20 (a) a police officer of Western Australia;
(b) a member of the Australian Federal Police;
(c) an officer of Customs within the meaning of the
Customs Act 1901 of the Commonwealth;
(d) the DPP.
25 (3) Subsections (1) and (2) have effect despite any other enactment,
or any practice, relating to hearsay evidence.
page 67
Criminal Property Confiscation Bill 2000
Part 8 Court jurisdiction and evidentiary matters
s. 106
106. Evidence that property is crime-used or crime-derived
A finding that particular property is crime-used or
crime-derived, or that there are reasonable grounds for
suspecting that it is crime-used or crime-derived, and any
5 decision, declaration or order based on such a finding --
(a) need not be based on a finding as to the commission of a
particular confiscation offence, but may be based on a
finding that some confiscation offence or other has been
committed;
10 (b) may be made whether or not anyone has been charged
with or convicted of the relevant confiscation offence; and
(c) may be made whether or not anyone who owns or
effectively controls the property has been identified.
107. Evidence of offence proceedings
15 In any proceedings under this Act in relation to property, if a
person has been convicted of the relevant confiscation offence,
the court may have regard to any or all of the following --
(a) a transcript of the evidence given in any proceedings for
the offence;
20 (b) the sentencing transcript;
(c) any statement, deposition, exhibit or other material
before a court in any proceedings for the offence;
(d) a copy of any statement that was served on the person,
or that would have been served on the person if the
25 person had not absconded.
108. Transcripts of examinations
For the purposes of section 61(7), the transcript of an
examination of a person under an examination order is
admissible in any proceedings under this Act or under any other
page 68
Criminal Property Confiscation Bill 2000
Court jurisdiction and evidentiary matters Part 8
s. 109
law in force in Western Australia as evidence of a statement or
disclosure made by the person in the course of complying with
the examination order.
109. Hearsay evidence
5 A decision under this Act, except under Part 6, about the
existence of grounds for doing or suspecting anything may be
based on hearsay evidence or hearsay information.
110. Evidence of compliance with production orders
When a person produces a document, or makes a document
10 available, under a production order, the production or making
available of the document, or any information, document or
anything else acquired as a direct or indirect consequence of
complying with the order, is not admissible against the person in
evidence in any criminal proceedings except proceedings for an
15 offence under section 65.
111. Certificates under Misuse of Drugs Act 1981
In any proceedings under this Act, a certificate referred to in
section 38(2) of the Misuse of Drugs Act 1981 is sufficient
evidence of the facts stated in the certificate.
20 112. Enforcing compliance with Act or court order
(1) If a person fails to take any action necessary to comply with or
give effect to this Act or an order under this Act --
(a) at the direction of the Supreme Court or a judge, the
Registrar of the Supreme Court may take the necessary
25 action; and
(b) the action of the Registrar has effect for all purposes as
if it had been done by the person.
(2) The person is liable to pay any costs incurred as a result of
taking the action.
page 69
Criminal Property Confiscation Bill 2000
Part 9 Interests in registrable property
s. 113
Part 9 -- Interests in registrable property
113. Registration of interests in registrable real property
(1) When a memorial is lodged under this Act with the Registrar of
Titles, the Registrar is to --
5 (a) register the memorial; and
(b) do anything else necessary to give effect to the change
of circumstances to which the memorial relates.
(2) Nothing in this Act prevents a person from lodging with the
Registrar of Titles --
10 (a) a caveat relating to frozen registrable real property;
(b) a memorial of a dealing or purported dealing in
registrable real property that is frozen at the time that the
memorial is lodged; or
(c) a memorial of a dealing or purported dealing in
15 registrable real property that was frozen at the time that
the dealing or purported dealing was carried out.
(3) Nothing in this Act prevents the Registrar of Titles from --
(a) giving notice to a person that a caveat has been lodged
in relation to frozen registrable real property;
20 (b) accepting a memorial of a dealing or purported dealing
in registrable real property that is frozen at the time that
the memorial is lodged; or
(c) accepting a memorial of a dealing or purported dealing
in registrable real property that was frozen at the time
25 that the dealing or purported dealing was carried out.
page 70
Criminal Property Confiscation Bill 2000
Interests in registrable property Part 9
s. 114
(4) However, if a memorial (other than a memorial lodged under
this Act) is lodged or registered in relation to frozen registrable
real property --
(a) the memorial and its lodgement or registration have no
5 effect, at law, in equity or otherwise, while the freezing
notice or freezing order is in force; and
(b) if the freezing notice or freezing order ceases to be in
force, and the property is not confiscated, then the
memorial, and its lodgement or registration (if any),
10 have effect as if the property had not been frozen at the
time that the memorial was lodged or registered.
114. Registration of interests in other property
If a registrar of property registered under any enactment except
the Transfer of Land Act 1893 is notified under this Act that a
15 freezing order or freezing order for the property has been issued
or made, or has ceased to be in force, or that the property has
been confiscated, the registrar is to note the relevant particulars
in the register.
115. Imputation of knowledge that property is frozen
20 (1) If a memorial of the issue of a freezing notice or the making of a
freezing order for registrable real property has been registered
under section 113(1), any person who deals with the property
while the freezing notice or freezing order is in force is taken to
have notice, for all purposes, that the freezing notice or freezing
25 order is in force.
(2) If particulars of a freezing notice or freezing order for any
property (except registrable real property) have been noted in
the register under section 114, any person who deals with the
property while the freezing notice or freezing order is in force is
30 taken to have notice, for all purposes, that it is in force.
page 71
Criminal Property Confiscation Bill 2000
Part 9 Interests in registrable property
s. 116
116. Instruments lodged with the Registrar of Titles
(1) The Registrar of Titles may approve the form of memorials or
any other instruments lodged with the Registrar under or for the
purposes of this Act.
5 (2) A memorial or other instrument lodged with the Registrar under
or for the purposes of this Act must be in a form approved under
subsection (1).
page 72
Criminal Property Confiscation Bill 2000
Mutual recognition of freezing orders and confiscation of Part 10
property
Registration of WA orders in other jurisdictions Division 1
s. 117
Part 10 -- Mutual recognition of freezing orders and
confiscation of property
Division 1 -- Registration of WA orders in other jurisdictions
117. Interstate registration of freezing notices and orders
5 (1) For the purpose of enabling a freezing notice or freezing order
to be registered under a corresponding law of another State or a
Territory, the notice or order may be expressed to apply to
property in the State or Territory.
(2) The notice or order does not apply to property in another State
10 or a Territory except to the extent that --
(a) a corresponding law of the State or Territory provides
that the notice or order has effect in the State or
Territory when it is registered under that law; or
(b) if the property is moveable -- when the order took
15 effect, the property was not located in a State or
Territory in which a corresponding law is in force.
Division 2 -- Recognition of orders of other jurisdictions
118. Registration of interstate orders
(1) If an interstate freezing order, or an interstate confiscation
20 declaration, expressly applies to property that is in this State, the
order may be registered under this Act.
(2) An order is registered under this Act when a copy of the order,
sealed by the court that made the order, is registered in
accordance with the rules of the Supreme Court.
25 (3) Any amendments made to an interstate freezing order or an
interstate confiscation declaration may be registered in the same
way, whether the amendments were made before or after the
page 73
Criminal Property Confiscation Bill 2000
Part 10 Mutual recognition of freezing orders and confiscation of
property
Division 2 Recognition of orders of other jurisdictions
s. 119
registration of the original declaration, but the amendments are
of no effect until they are registered.
(4) An application for registration may be made by the applicant for
the interstate order or declaration or amendments, by the DPP,
5 or by any person affected by the order or amendments.
119. Effect of registration of interstate freezing orders
(1) A registered interstate freezing order may be enforced in this
State as if the order had been made under section 43.
(2) This Act (except sections 41 and 46) applies to a registered
10 interstate freezing order as if the order had been made under
section 43.
120. Effect of registration of interstate confiscation declarations
(1) A registered interstate confiscation declaration may be enforced
in this State as if the property to which it relates had been
15 confiscated under section 6, 7 or 8.
(2) A registered interstate confiscation declaration does not operate
so as to vest property in any person or entity except this State.
(3) A registered interstate confiscation declaration does not operate
so as to vest property in this State if the order has already
20 operated to vest the property in the Commonwealth, a Territory
or another State, or in some other person or entity.
121. Duration of registration of interstate orders
A registered interstate freezing order or registered interstate
confiscation declaration is enforceable in this State under this
25 Act until its registration is cancelled under section 122, even if
the order has already ceased to be in force under the law of the
Commonwealth, or of the State or Territory, under which the
order was made.
page 74
Criminal Property Confiscation Bill 2000
Mutual recognition of freezing orders and confiscation of Part 10
property
Charges on interstate property Division 3
s. 122
122. Cancellation of registration of interstate orders
(1) The Supreme Court may cancel the registration of an interstate
freezing order or interstate confiscation declaration if --
(a) registration was improperly obtained; or
5 (b) the order ceases to be in force under the law of the
Commonwealth, or of the State or Territory, under
which the order was made.
(2) An application for the cancellation of the registration may be
made by the person who applied for its registration, by the DPP,
10 or by a person affected by the order.
Division 3 -- Charges on interstate property
123. Creation of charge
(1) A charge is created on property that is frozen under a registered
interstate freezing order if --
15 (a) the order was made in connection with a confiscation
offence committed interstate by the owner of the
property;
(b) an interstate criminal benefits declaration is made
against the person in connection with the confiscation
20 offence; and
(c) the interstate criminal benefits declaration is registered
in a court of this State under the Service and Execution
of Process Act 1992 of the Commonwealth.
(2) The charge is created as soon as both the interstate freezing
25 order and the interstate criminal benefits declaration are
registered in a court of this State.
page 75
Criminal Property Confiscation Bill 2000
Part 10 Mutual recognition of freezing orders and confiscation of
property
Division 3 Charges on interstate property
s. 124
(3) The charge is created to the extent necessary to secure the
payment of the amount due under the interstate criminal benefits
declaration.
124. Cessation of charge
5 (1) A charge created on property under section 123(1) ceases to
have effect as soon as any one of the following happens --
(a) the interstate criminal benefits declaration that gave rise
to the charge ceases to have effect;
(b) the declaration is set aside by a court;
10 (c) the amount due under or as a result of the declaration is
paid;
(d) the owner of the property becomes bankrupt;
(e) the property is sold to a purchaser in good faith for value
who, at the time of purchase, had no notice of the
15 charge;
(f) the property is sold or otherwise disposed of in
accordance with subsection (2).
(2) For the purposes of subsection (1)(f), property may be sold or
otherwise disposed of --
20 (a) under an order made by a court under the corresponding
law of the Commonwealth, or of the State or Territory,
under which the interstate criminal benefits declaration
was made;
(b) by the owner of the property with the consent of the
25 court that made the interstate criminal benefits
declaration; or
(c) where an order of a court directs a person to take control
of the property -- by the owner of the property with the
consent of the person.
page 76
Criminal Property Confiscation Bill 2000
Mutual recognition of freezing orders and confiscation of Part 10
property
Charges on interstate property Division 3
s. 125
125. Priority of charge
A charge created on property under section 123(1) --
(a) is subject to every encumbrance on the property that
came into existence before the charge and that would,
5 apart from this subsection, have priority over the charge;
(b) has priority over all other encumbrances; and
(c) subject to section 124, is not affected by any change of
ownership of the property.
126. Registration of charge on land
10 (1) If a charge is created on land under section 123, the DPP or the
Public Trustee may lodge a memorial of a charge on an interest
in land under the Transfer of Land Act 1893 or the Registration
of Deeds Act 1856 and the memorial may be registered in
accordance with the respective Act.
15 (2) Anyone who purchases or otherwise acquires an interest in the
property after the memorial is lodged is taken to have notice of
the charge, for the purposes of section 124(1)(e), at the time of
the purchase or acquisition.
(3) If the charge ceases to have effect, the DPP or the Public
20 Trustee may withdraw the memorial in accordance with the Act
under which it was registered, and the registration may be
cancelled in accordance with that Act.
127. Registration of charge on property except land
(1) The DPP or the Public Trustee may lodge a memorial of a
25 charge on property of a kind other than land under any
enactment that provides for the registration of interests in
property of that kind, and the memorial may be registered in
accordance with the enactment.
page 77
Criminal Property Confiscation Bill 2000
Part 10 Mutual recognition of freezing orders and confiscation of
property
Division 3 Charges on interstate property
s. 127
(2) Anyone who purchases or otherwise acquires an interest in the
property after the memorial is lodged is taken to have notice of
the charge, for the purposes of section 124(1)(e), at the time of
the purchase or acquisition.
5 (3) If the charge ceases to have effect, the DPP or the Public
Trustee may withdraw the memorial in accordance with the
enactment, and the registration of the memorial may be
cancelled in accordance with the enactment.
page 78
Criminal Property Confiscation Bill 2000
Miscellaneous Part 11
s. 128
Part 11 -- Miscellaneous
128. Act binds States and Commonwealth
(1) This Act binds this State, the Commonwealth, each other State,
the Australian Capital Territory and the Northern Territory, to
5 the extent that the legislative power of Parliament permits.
(2) Nothing in this Act renders this State, the Commonwealth,
another State or a Territory liable to prosecution for an offence.
129. Property protected from seizure and confiscation
(1) Property of any of the following kinds is protected from
10 confiscation if it is not crime-used property --
(a) family photographs;
(b) family portraits;
(c) necessary clothing.
(2) Property of any of the following kinds is protected from
15 confiscation if it is not crime-used property or crime-derived
property --
(a) ordinary tools of trade;
(b) professional instruments;
(c) reference books.
20 (3) However, ordinary tools of trade, professional instruments and
reference books that are owned or effectively controlled by the
same person are protected from confiscation only to the extent
that the combined value of the tools, instruments and books
does not exceed the amount prescribed for the purposes of
25 section 75(1)(c) of the Fines, Penalties and Infringement
Notices Enforcement Act 1994.
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Criminal Property Confiscation Bill 2000
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(4) Property that is protected from confiscation --
(a) is not confiscated under section 6, 7 or 8;
(b) is not to be frozen;
(c) is not to be taken, under a warrant of execution or
5 otherwise, for the purpose of satisfying a person's
liability under section 14, 20 or 24; and
(d) is not to be seized under this Act or under a warrant
under this Act.
130. Confiscation Proceeds Account
10 (1) An account called the Confiscation Proceeds Account is
established as part of the Trust Fund provided for by section 9
of the Financial Administration and Audit Act 1985.
(2) The provisions of the Financial Administration and Audit
Act 1985 regulating the financial administration, audit and
15 reporting of departments apply to the Confiscation Proceeds
Account.
(3) For the purposes of section 52 of the Financial Administration
and Audit Act 1985, the administration of the Confiscation
Proceeds Account is to be regarded as a service of the
20 department principally assisting the Minister in the
administration of this Act.
131. Payments into and out of the Confiscation Proceeds Account
(1) The following are to be paid into the Confiscation Proceeds
Account --
25 (a) money that, under this Act, is paid to the State,
recovered by the State or confiscated;
(b) proceeds of the disposal of other confiscated property;
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(c) money paid to the State under the Proceeds of Crime
Act 1987 of the Commonwealth from the Confiscated
Assets Reserve established under that Act or any other
fund established for a similar purpose under a law of the
5 Commonwealth.
(2) Money may be paid out of the Confiscation Proceeds Account
at the direction of the Attorney General, as reimbursement or
otherwise --
(a) for a purpose associated with the administration of this
10 Act;
(b) for the development and administration of programmes
or activities designed to prevent or reduce drug-related
criminal activity and the abuse of prohibited drugs;
(c) to provide support services and other assistance to
15 victims of crime;
(d) to carry out operations authorised by the Commissioner
of Police for the purpose of identifying or locating
persons involved in the commission of a confiscation
offence;
20 (e) to carry out operations authorised by the Commissioner
of Police for the purpose of identifying or locating
confiscable property;
(f) to cover any costs of storing, seizing or managing frozen
or confiscated property that are incurred by the Police
25 Force, the DPP or a person appointed under this Act to
manage the property; and
(g) for any other purposes in aid of law enforcement.
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132. Obstructing police officers
(1) A person commits an offence if the person wilfully delays or
obstructs a police officer in the exercise of the functions of a
police officer under this Act, or a person assisting a police
5 officer in the exercise of those functions.
Penalty: $100 000 or imprisonment for 5 years, or both.
(2) A person commits an offence if the person wilfully does not
produce any property to, or wilfully conceals or attempts to
conceal any property from, a police officer in the exercise of the
10 police officer's functions under this Act, or a person assisting a
police officer in the exercise of those functions.
Penalty: $100 000 or imprisonment for 5 years, or both.
133. Later applications, notices, orders or findings
The fact that a freezing notice has been issued for property or
15 that an application, order or finding has been made under this
Act in relation to any property, person or confiscation offence
does not prevent another freezing notice from being issued for
the property, or prevent another application, order or finding, or
a different application, order or finding, from being made under
20 this Act in relation to the property, the person or the offence.
134. DPP's power to delegate
(1) The DPP may delegate the performance of any of the functions
of the DPP under this Act, except this power of delegation, to an
officer referred to in section 30 of the Director of Public
25 Prosecutions Act 1991.
(2) A delegation --
(a) must be made by written instrument;
(b) is made on behalf of and subject to the direction and
control of the DPP; and
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s. 135
(c) may be made generally or as otherwise provided by the
instrument.
135. Orders relating to sham transactions
(1) The DPP may apply to the court for an order under
5 subsection (2).
(2) On hearing an application, if the court is satisfied that a person
is carrying out, or has carried out, a sham transaction, the court
may, to defeat the purpose of the transaction, by order --
(a) declare that the transaction is void in whole or in part; or
10 (b) vary the operation of the transaction in whole or in part.
(3) The court may make any ancillary orders that are just in the
circumstances for or with respect to any consequential or related
matter, including orders relating to --
(a) dealing with property;
15 (b) the disposition of any proceeds from the sale of
property;
(c) making payments of money; and
(d) creating a charge on property in favour of any person
and the enforcement of the charge.
20 (4) The court may rescind or vary an order made under this section.
136. Proceedings against body corporate
(1) If a body corporate commits an offence under this Act and it is
proved that the offence occurred with the consent or connivance
of an officer of the body corporate, or a person purporting to act
25 as an officer of the body corporate, that person, as well as the
body corporate, commits the offence.
(2) If the affairs of a body corporate are managed by its members,
subsection (1) applies in relation to the acts and defaults of a
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Criminal Property Confiscation Bill 2000
Part 11 Miscellaneous
s. 137
member in connection with the member's functions of
management as if the member were a director of the body
corporate.
(3) If, in proceedings under this Act, it is necessary to establish the
5 state of mind of a body corporate in relation to particular
conduct, it is sufficient to show that --
(a) the conduct was engaged in by an officer of the body
corporate within the scope of his or her actual or
apparent authority; and
10 (b) the officer had that state of mind.
(4) If an officer of a body corporate engages in conduct on behalf of
the body corporate within the scope of his or her actual
authority then, for the purposes of proceedings under this Act,
the body corporate is taken also to have engaged in the conduct
15 unless the body corporate establishes that it took reasonable
precautions and exercised due diligence to avoid the conduct.
137. Liability for carrying out functions under this Act
A person on whom this Act confers a function is not personally
liable in civil proceedings, and the State is not liable, for
20 anything done or default made by the person in good faith for
the purpose of carrying this Act into effect.
138. Effect of owner's death
(1) A reference in this Act to property of a person who is dead is to
be read as a reference to property owned or effectively
25 controlled by the person immediately before his or her death, or
given away by the person at any time before his or her death.
(2) An order may be applied for and made under this Act --
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Criminal Property Confiscation Bill 2000
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s. 139
(a) in respect of property that is or was owned or effectively
controlled or given away by a person even if the person
is dead; and
(b) on the basis of the activities of a person who is dead.
5 (3) If a person who owns frozen property dies, this Act continues to
apply to the property in all respects as if the person had not
died, regardless of whether the administrator of the person's
estate or any other person in whom the property vests as a result
of the death is an innocent party in relation to the property.
10 (4) Without limiting the remainder of this section, if a person who
is a joint tenant of frozen property dies --
(a) the person's death does not operate to vest the property
in the surviving joint tenant or tenants; and
(b) the freezing notice or freezing order continues to apply
15 to the property as if the person had not died.
139. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed, for giving effect to
20 this Act.
(2) Without limiting subsection (1), the regulations may --
(a) provide for carrying out the destruction of property
under an order under section 93;
(b) provide for carrying out the sale of deteriorating
25 property under an order under section 94;
(c) provide for obtaining possession of confiscated
property;
(d) provide for the storage and management of confiscated
property;
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Criminal Property Confiscation Bill 2000
Part 11 Miscellaneous
s. 139
(e) provide for the disposal of confiscated property that has
vested in the State; and
(f) authorise persons or persons in a class of persons to
carry out any or all of the functions of a police officer
5 under this Act.
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Interpretation Part 12
s. 140
Part 12 -- Interpretation
140. Confiscation offences
(1) In this Act, "confiscation offence" means --
(a) an offence against a law in force anywhere in Australia
5 that is punishable by imprisonment for 2 years or more;
or
(b) any other offence that is prescribed for the purposes of
this definition.
(2) An offence of a kind referred to in paragraph (1)(a) is a
10 confiscation offence even if a charge against a person for the
offence is dealt with by a court whose jurisdiction is limited to
the imposition of sentences of imprisonment of less than
2 years.
141. Confiscable property
15 Property is confiscable for the purposes of this Act if the
property is --
(a) owned or effectively controlled, or has at any time been
given away, by a person who has unexplained wealth;
(b) owned or effectively controlled, or has at any time been
20 given away, by a person who has acquired a criminal
benefit;
(c) crime-used property;
(d) crime-derived property; or
(e) owned or effectively controlled, or has at any time been
25 given away, by a declared drug trafficker.
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s. 142
142. The constituents of a person's wealth
(1) The following property, services, advantages and benefits
together constitute a person's wealth --
(a) all property that the person owns, whether the property
5 was acquired before or after the commencement of this
Act;
(b) all property that the person effectively controls, whether
the person acquired effective control of the property
before or after the commencement of this Act;
10 (c) all property that the person has given away at any time,
whether before or after the commencement of this Act;
(d) all other property acquired by the person at any time,
whether before or after the commencement of this Act,
including consumer goods and consumer durables that
15 have been consumed or discarded;
(e) all services, advantages and benefits that the person has
acquired at any time, whether before or after the
commencement of this Act; and
(f) all property, services, advantages and benefits acquired,
20 at the request or direction of the person, by another
person at any time, whether before or after the
commencement of this Act, including consumer goods
and consumer durables that have been consumed or
discarded.
25 (2) Without limiting subsection (1), a reference in that subsection to
property, services, advantages or benefits acquired by a person
or by another person at the request or direction of the
first-mentioned person is to be read as including a reference to
any thing of monetary value acquired, in Australia or elsewhere,
30 from the commercial exploitation of any product, or of any
broadcast, telecast or other publication, where the commercial
value of the product, broadcast, telecast or other publication
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Interpretation Part 12
s. 143
depends on or is derived from the first-mentioned person's
involvement in the commission of a confiscation offence,
whether or not the thing was lawfully acquired and whether or
not the first-mentioned person has been charged with or
5 convicted of the offence.
143. Unexplained wealth
(1) For the purposes of this Act, a person has unexplained wealth if
the value of the person's wealth under subsection (2) is greater
than the value of the person's lawfully acquired wealth under
10 subsection (3).
(2) The value of the person's wealth is the amount equal to the sum
of the values of all the items of property, and all the services,
advantages and benefits, that together constitute the person's
wealth.
15 (3) The value of the person's lawfully acquired wealth is the
amount equal to the sum of the values of each item of property,
and each service, advantage and benefit, that both is a
constituent of the person's wealth and was lawfully acquired.
144. Acquiring criminal benefits
20 (1) For the purposes of this Act, a person has acquired a criminal
benefit if --
(a) any property, service, advantage or benefit that is a
constituent of the person's wealth was directly or
indirectly acquired as a result of the person's
25 involvement in the commission of a confiscation
offence, whether or not the property, service, advantage
or benefit was lawfully acquired; or
(b) the person has been involved in the commission of a
confiscation offence, and any property, service,
30 advantage or benefit that is a constituent of the person's
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Criminal Property Confiscation Bill 2000
Part 12 Interpretation
s. 145
wealth was not lawfully acquired, whether or not the
property, service, advantage or benefit was acquired as a
result of the person's involvement in the commission of
the offence.
5 (2) Without limiting subsection (1), the person has acquired a
criminal benefit --
(a) whether the property, service, advantage or benefit was
acquired before, during or after the confiscation offence
was or is likely to have been committed;
10 (b) whether or not the property, service, advantage or
benefit was acquired before or after the commencement
of this Act; and
(c) whether or not the confiscation offence was committed
before or after the commencement of this Act.
15 145. Crime-used property
(1) For the purposes of this Act, property is crime-used if --
(a) the property is or was used, or intended for use, directly
or indirectly, in or in connection with the commission of
a confiscation offence, or in or in connection with
20 facilitating the commission of a confiscation offence;
(b) the property is or was used for storing property that was
acquired unlawfully in the course of the commission of
a confiscation offence; or
(c) any act or omission was done, omitted to be done or
25 facilitated in or on the property in connection with the
commission of a confiscation offence.
(2) Without limiting subsection (1), property described in that
subsection is crime-used whether or not --
(a) the property is also used, or intended or able to be used,
30 for another purpose;
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Criminal Property Confiscation Bill 2000
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s. 146
(b) anyone who used or intended to use the property as
mentioned in subsection (1) has been identified;
(c) anyone who did or omitted to do anything that
constitutes all or part of the relevant confiscation
5 offence has been identified; or
(d) anybody has been charged with or convicted of the
relevant confiscation offence.
(3) Without limiting subsection (1) or (2), any property in or on
which an offence under Chapter XXII or XXXI of The Criminal
10 Code is committed is crime-used property.
146. Criminal use of property
For the purposes of this Act, a person makes criminal use of
property if the person, alone or with anyone else (who need not
be identified) uses or intends to use the property in a way that
15 brings the property within the definition of crime-used property.
147. Crime-derived property
(1) Property that is wholly or partly derived or realised, directly or
indirectly, from the commission of a confiscation offence is
crime-derived, whether or not --
20 (a) anyone has been charged with or convicted of the
offence;
(b) anyone who directly or indirectly derived or realised the
property from the commission of the offence has been
identified; or
25 (c) anyone who directly or indirectly derived or realised the
property from the commission of the offence was
involved in the commission of the offence.
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s. 148
(2) Without limiting subsection (1), property of the following kinds
is crime-derived --
(a) stolen property;
(b) property bought with or exchanged for crime-derived
5 property;
(c) property acquired by legitimate means that could not
have been acquired if crime-derived property had not
been used for other purposes;
(d) any thing of monetary value acquired, in Australia or
10 elsewhere, from the commercial exploitation of any
product, or of any broadcast, telecast or other
publication, where the commercial value of the product,
broadcast, telecast or other publication depends on or is
derived from a person's involvement in the commission
15 of a confiscation offence, whether or not the thing was
lawfully acquired and whether or not anyone has been
charged with or convicted of the offence.
148. Lawful acquisition of property
Any property, service, advantage or benefit is lawfully acquired
20 only if --
(a) the property, service, advantage or benefit was lawfully
acquired; and
(b) any consideration given for the property, service,
advantage or benefit was lawfully acquired.
25 149. Service cut off date
For the purpose of determining when frozen property is
confiscated under section 7, the service cut off date is --
(a) for property frozen under a freezing notice -- the date of
the last day on which a copy of the freezing notice was
30 served on anyone under section 36(4); and
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s. 150
(b) for property frozen under a freezing order -- the date of
the last day on which a copy of the freezing order was
served on anyone under section 46(4).
150. Dealing with property
5 A reference in this Act to dealing with property includes a
reference to doing or attempting to do any of the following --
(a) sell the property or give it away;
(b) dispose of the property in any other way;
(c) move or use the property;
10 (d) accept the property as a gift;
(e) take any profit, benefit or proceeds from the property;
(f) create, increase or alter any legal or equitable right or
obligation in relation to the property;
(g) effect a change in the effective control of the property.
15 151. Value of property sold by State
(1) If property is sold by or for the State under this Act, the value of
the property is taken to be equal to the proceeds of the sale after
taking account of the following --
(a) costs, charges and expenses arising from the sale;
20 (b) if a freezing notice or freezing order is or was in force
for the property -- expenses incurred by the State or a
person appointed to manage the property while the
notice or order was in force;
(c) if the property has been confiscated -- any expenses
25 incurred by the State or a person appointed to manage
the property after it was confiscated;
(d) any charges on the property.
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Criminal Property Confiscation Bill 2000
Part 12 Interpretation
s. 152
(2) If the property is subject to a mortgage which is also security
against other property then, despite any other enactment and any
inconsistent term of the mortgage, the extent of the security over
the sold property is the proportion that the value of the sold
5 property bore to the total value of all the secured property at the
time that the security over the sold property was given.
152. Innocent parties
(1) A person is an innocent party in relation to crime-used or
crime-derived property if the person --
10 (a) was not in any way involved in the commission of the
relevant confiscation offence; and
(b) did not know, and had no reasonable grounds for
suspecting, that the relevant confiscation offence was
being or would be committed, or took all reasonable
15 steps to prevent its commission.
(2) A person is an innocent party in relation to crime-used property
if the person --
(a) did not know, and had no reasonable grounds for
suspecting, that the property was being or would be used
20 in or in connection with the commission of the relevant
confiscation offence; or
(b) took all reasonable steps to prevent its use.
(3) A person who owns or effectively controls crime-used or
crime-derived property is an innocent party in relation to the
25 property if --
(a) the person did not acquire the property or its effective
control before the time that the relevant confiscation
offence was committed or is likely to have been
committed;
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s. 153
(b) at the time of acquiring the property or its effective
control, the person did not know and had no reasonable
grounds for suspecting that the property was crime-used
or crime-derived;
5 (c) if the person acquired the property for valuable
consideration -- the consideration was lawfully
acquired; and
(d) the person did not acquire the property, either as a gift or
for valuable consideration, with the intention of
10 avoiding the operation of this Act.
153. Transfer of property for value
For the purposes of this Act --
(a) property transferred under a will or administration of an
intestate estate is not taken to be transferred for value; and
15 (b) property transferred in the course of proceedings in the
Family Court of Western Australia or the Family Court
of Australia is taken to be transferred for value.
154. Property-tracking documents
For the purposes of this Act, a document is a property-tracking
20 document if the document is relevant to --
(a) identifying or locating crime-used property or
crime-derived property;
(b) determining the value of any crime-used property or
crime-derived property;
25 (c) identifying or locating any or all constituents of a
person's wealth;
(d) determining the value of any or all constituents of a
person's wealth; or
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Criminal Property Confiscation Bill 2000
Part 12 Interpretation
s. 155
(e) identifying or locating any document relating to the
transfer of frozen or confiscated property.
155. Effective control of property
(1) For the purposes of this Act, a person has effective control of
5 property if the person does not have the legal estate in the property,
but the property is directly or indirectly subject to the control of the
person, or is held for the ultimate benefit of the person.
(2) Without limiting subsection (1), when determining whether a
person has effective control of any property, the following
10 matters may be taken into account --
(a) any shareholdings in, debentures over or directorships of
any corporation that has a direct or indirect interest in
the property;
(b) any trust that has a relationship to the property;
15 (c) family, domestic and business relationships between
persons having an interest in the property;
(d) family, domestic and business relationships between
persons having an interest in or in a corporation that has
a direct or indirect interest in the property;
20 (e) family, domestic and business relationships between
persons having an interest in a trust that has a
relationship to the property;
(f) any other relevant matters.
156. Conviction of a confiscation offence
25 (1) For the purposes of this Act, a person is taken to have been
convicted of a confiscation offence if --
(a) the person has been convicted of the confiscation
offence, whether or not --
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Criminal Property Confiscation Bill 2000
Interpretation Part 12
s. 156
(i) a spent conviction order is made under section 39
of the Sentencing Act 1995 in respect of the
conviction; or
(ii) the conviction was deemed not to be a conviction
5 by section 20 of the Offenders Community
Corrections Act 1963;
(b) the person has been charged with and found guilty of a
confiscation offence, but is discharged without
conviction;
10 (c) the confiscation offence was taken into account by a
court in sentencing the person for another confiscation
offence; or
(d) the person was charged with a confiscation offence but
absconded before the charge is finally determined.
15 (2) For the purposes of this Act, a person's conviction is taken to
have been quashed --
(a) if the person is taken under subsection (1)(a) to have
been convicted -- if the conviction is quashed or set
aside;
20 (b) if the person is taken under subsection (1)(b) to have
been convicted -- if the finding of guilt is quashed or
set aside;
(c) if the person is taken under subsection (1)(c) to have
been convicted -- if the decision of the court to take the
25 confiscation offence into account is quashed or set aside;
or
(d) if the person is taken under subsection (1)(d) to have
been convicted -- if the person is brought before a court
to answer the charge, and the person is discharged in
30 respect of the confiscation offence.
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Criminal Property Confiscation Bill 2000
Part 12 Interpretation
s. 157
157. Charges for an offence
For the purposes of this Act, a person is taken to have been
charged with an offence if a complaint has been made against
the person for the offence, whether or not --
5 (a) a summons requiring the attendance of the person to
answer the complaint has been issued; or
(b) a warrant for the arrest of the person has been issued.
158. Drug traffickers and declared drug traffickers
(1) In this Act, unless the contrary intention appears --
10 "declared drug trafficker" means --
(a) a person who 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 an offence that was
committed, or is more likely than not to have been
15 committed, after the commencement of this Act; or
(b) a person who is taken to be a declared drug trafficker
under subsection (2).
(2) For the purposes of this Act, a person is taken to be a declared
drug trafficker if --
20 (a) the person is charged with a serious drug offence within
the meaning of section 32A(3) of the Misuse of Drugs
Act 1981;
(b) the offence was committed, or is more likely than not to
have been committed, after the commencement of this
25 Act;
(c) the person could be declared to be a drug trafficker
under section 32A(1) of that Act if he or she is
convicted of the offence;
(d) the charge is not disposed of or finally determined; and
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Criminal Property Confiscation Bill 2000
Interpretation Part 12
s. 159
(e) the person absconds in connection with the offence.
159. Absconding in connection with an offence
(1) A person charged with an offence is taken to abscond in
connection with the offence if --
5 (a) a warrant for the person's arrest for the offence is in
force, or the person was arrested without warrant either
before or after the person was charged with the offence;
(b) the charge has neither been disposed of nor finally
determined;
10 (c) at least 6 months have passed since the warrant was
issued; and
(d) the person cannot be found.
(2) A person charged with an offence is taken to abscond in
connection with the offence if --
15 (a) a warrant for the person's arrest for the offence is in
force, or the person is arrested for the offence without
warrant (whether before or after being charged with the
offence);
(b) the charge has neither been disposed of nor finally
20 determined; and
(c) the person dies.
160. Sham transactions
(1) For the purposes of this Act, a person carries out a sham
transaction if --
25 (a) the person carries out a transaction within the meaning
of subsection (2); and
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Criminal Property Confiscation Bill 2000
Part 12 Interpretation
s. 160
(b) the transaction was carried out for the purpose of
directly or indirectly defeating, avoiding, preventing or
impeding the operation of this Act in any respect.
(2) For the purposes of subsection (1), the person carries out a
5 transaction if the person carries out, makes, gives or designs --
(a) any agreement, arrangement, understanding, promise or
undertaking, whether express or implied and whether or
not enforceable, or intended to be enforceable, by legal
proceedings; or
10 (b) any scheme, plan, proposal, action, course of action, or
course of conduct.
page 100
Criminal Property Confiscation Bill 2000
Glossary
Glossary
[s. 3]
"abscond", in connection with an offence, has the meaning given in
section 159;
5 "account" means any facility or arrangement through which a
financial institution accepts deposits or allows withdrawals and
includes a facility or arrangement for fixed term deposit and a
safety deposit box;
"agent" includes, if the agent is a corporation, an officer of the
10 corporation;
"bank" means --
(a) the Reserve Bank of Australia;
(b) a bank within the meaning of the Banking Act 1959 of the
Commonwealth;
15 (c) a person who carries on State banking within the meaning
of section 51(xiii) of the Commonwealth Constitution;
"building society" means a society registered or incorporated under
an enactment as a building society, permanent building society,
cooperative housing society or similar society;
20 "charge", in relation to an offence, has the meaning given in
section 157;
"confiscated", in relation to property, means confiscated under
section 6, 7 or 8;
"confiscable", in relation to property, has the meaning given in
25 section 141;
"Confiscation Proceeds Account" means the account established
under section 130;
"confiscable property declaration" means a declaration made under
section 28;
30 "confiscation offence" has the meaning given in section 140;
"conviction", in relation to a confiscation offence, has the meaning
given in section 156;
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Criminal Property Confiscation Bill 2000
Glossary
"corporation" means --
(a) a financial institution; or
(b) a corporation within the meaning of the Companies
(Western Australia) Code;
5 "corresponding law", in relation to the Commonwealth, another
State or a Territory, means a law of the Commonwealth, State or
Territory that is prescribed in the regulations as a law that
corresponds to this Act;
"court" means --
10 (a) in relation to making an application under this Act -- a
court having jurisdiction under section 101 to hear and
determine the application;
(b) in relation to proceedings on an application under this
Act -- the court in which the application was filed, or
15 another court having jurisdiction, whether under this Act
or another enactment, in the proceedings;
(c) in relation to a freezing notice -- the court in which the
notice was filed; or
(d) in relation to a declaration or order under this Act -- the
20 court that made the order;
"credit union" means a society registered under an enactment as a
credit union or credit society;
"crime-derived", in relation to property, has the definition given in
section 147;
25 "crime-used", in relation to property, has the meaning given in
section 145;
"crime-used property substitution declaration" means a
declaration under section 22;
"criminal benefit" has the definition given in section 144;
30 "criminal benefits declaration" means a declaration under
section 16 or 17;
"criminal use" in relation to a person and property, has the meaning
given in section 146;
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"deal", in relation to property, has the meaning given in section 150;
"declared drug trafficker" has the meaning given in section 158;
"director", in relation to a financial institution or a corporation,
means --
5 (a) if the institution or corporation is a body corporate
incorporated for a public purpose under a law of the
Commonwealth or of a State or Territory -- a constituent
member of the body corporate;
(b) a person occupying or acting in the position of director of
10 the institution or corporation, by whatever name called
and whether or not validly appointed to occupy or duly
authorised to act in the position; or
(c) a person in accordance with whose directions or
instructions the directors of the institution or corporation
15 are accustomed to act;
"dispose of ", in relation to a charge, means --
(a) withdraw;
(b) dismiss; or
(c) file a nolle prosequi in relation to the offence;
20 "document" includes --
(a) any publication and any matter written, expressed, or
described, electronically or otherwise, upon any substance
by means of letters, figures or marks, or by more than one
of those means, which is intended to be used or may be
25 used for the purpose of recording that matter; and
(b) a computer disk, computer or any other substance or
equipment, whether electronic or not, used to create or
store any publication or matter referred to in
paragraph (a);
30 "DPP" means the holder of the office of Director of Public
Prosecutions created by section 4 of the Director of Public
Prosecutions Act 1991;
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"effective control", in relation to property, has the definition given in
section 155;
"encumbrance", in relation to property, includes any interest,
mortgage, charge, right, claim or demand in respect of the
5 property;
"examination" means examination under an order under
section 58(1);
"examination order" means an order under section 58(1);
"executive officer", in relation to a financial institution or a
10 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;
"financial institution" means --
15 (a) a bank;
(b) a building society;
(c) a credit union;
(d) a financial corporation within the meaning of
section 51(xx) of the Constitution of the Commonwealth;
20 or
(e) a body corporate that would be a financial corporation
within the meaning of section 51(xx) of the Constitution
of the Commonwealth if the body had been incorporated
in Australia;
25 "freezing notice" means a freezing notice issued under section 34;
"freezing order" means an order under section 43;
"frozen", in relation to property and in relation to a freezing notice or
freezing order, means subject to the freezing notice or the
freezing order;
30 "give", in relation to property, includes transfer for consideration that
is significantly less than the greater of --
(a) the market value of the property at the time of transfer;
and
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Glossary
(b) the consideration paid by the transferee;
"innocent party" has the meaning given in section 152;
"interested party" , in relation to frozen property, means a person
who has an interest in the property that would enable the person
5 to succeed on an objection to the confiscation of the property;
"interstate confiscation offence" means an offence (including a
common law offence) against a law in force in another State or a
Territory, being an offence in relation to which an interstate
confiscation declaration or an interstate criminal benefits
10 declaration may be made under a corresponding law of the State
or Territory;
"interstate confiscation declaration" means a declaration or order
(however described) that is made by or under a corresponding
law of another State or a Territory and that is prescribed by the
15 regulations for the purposes of this definition;
"interstate criminal benefits declaration" means a declaration or
order (however described) that is made by or under a
corresponding law of another State or a Territory and that is
prescribed by the regulations for the purposes of this definition;
20 "interstate freezing order" means a notice or order (however
described) that is made by or under a corresponding law of
another State or a Territory and that is prescribed by the
regulations for the purposes of this definition;
"lawfully acquired ", in relation to any property, service, advantage
25 or benefit, has the meaning given in section 148;
"medical practitioner" has the same meaning as in the Medical
Act 1894;
"monitoring order" means an order under section 68(1);
"objection" means an objection filed under section 79 to the
30 confiscation of property;
"officer", in relation to a corporation, means a director, secretary,
executive officer, employee or agent of the corporation;
"owner", in relation to property, means a person who has a legal or
equitable interest in the property;
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"police officer", in relation to a function, includes a person
authorised to carry out the function under regulations made
under section 139(2)(f);
"premises" includes vessel, aircraft, vehicle, structure, building and
5 any land or place whether built on or not;
"production order" means an order under section 63;
"prohibited drug" has the same meaning as in the Misuse of Drugs
Act 1981;
"prohibited plant" has the same meaning as in the Misuse of Drugs
10 Act 1981;
"property" means --
(a) real or personal property of any description, wherever
situated, whether tangible or intangible; or
(b) a legal or equitable interest in any property referred to in
15 paragraph (a);
"property-tracking document" has the meaning given in
section 154;
"recipient", in relation to a freezing notice or freezing order, means a
person on whom a copy of the notice or order is served under
20 section 36 or 46;
"registered", in relation to an interstate freezing order or an interstate
confiscation declaration, means registered under section 118;
"registrable real property" means property to which the Transfer of
Land Act 1893 applies;
25 "relevant confiscation offence", in relation to confiscable property,
means the confiscation offence or suspected confiscation offence
that is relevant to bringing the property within the scope of this
Act;
"respondent" means --
30 (a) in relation to an application for an unexplained wealth
declaration, a criminal benefits declaration or a crime-used
property substitution declaration --the person against
whom the order is sought; or
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(b) in relation to an unexplained wealth declaration, a criminal
benefits declaration or a crime-used property substitution
declaration -- the person against whom the order is made;
"restricted disclosure" means a disclosure about a matter of a kind
5 referred to in a paragraph of section 70(1);
"seized", in relation to property, means seized under section 33(1);
"service cut off date", in relation to frozen property, has the meaning
given in section 149;
"sham transaction" has the meaning given in section 160;
10 "spouse" includes de facto spouse;
"State taxes", in relation to frozen property, means any rates, land
tax, local government or other statutory charges imposed on the
property under a law of this State;
"suspension order" means an order under section 68(2);
15 "transaction", in relation to an account with a financial institution,
includes --
(a) the making of a fixed term deposit;
(b) the transferring of the amount of a fixed term deposit, or
any part of it, at the end of the term;
20 "unexplained wealth" has the meaning given in section 143;
"unexplained wealth declaration" means a declaration under
section 12;
"valuable consideration", in relation to the transfer of property, does
not include --
25 (a) any consideration for the transfer arising from the fact of a
family relationship between the transferor and transferee;
(b) if the transferor is the legal or de facto spouse of the
transferee -- the making by the transferor of a deed in
favour of the transferee;
30 (c) a promise by the transferee to become the legal or de facto
spouse of the transferor;
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Glossary
(d) any consideration arising from the transferor's love or
affection for the transferee;
(e) the transfer of the property as a result of the distribution of
a deceased estate;
5 (f) the transfer of the property by way of gift; or
(g) consideration that is significantly less than the greater
of --
(i) the market value of the property at the time of
transfer; and
10 (ii) the consideration paid by the transferee;
"value", in relation to --
(a) a person's unexplained wealth -- means the amount
calculated in accordance with section 13;
(b) a person's wealth -- has the meaning given in section
15 143(2);
(c) a person's lawfully acquired wealth -- has the meaning
given in section 143(3);
(d) property sold by or for the State -- has the meaning given
in section 151; and
20 (e) the transfer of property -- has the meaning given in
section 153;
"wealth" has the meaning given in section 142.
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