(1) In this Act: assets forfeiture order means an order made under section 22 and in force.authorised officer means:
(a) a full-time member of the Commission, or (b) a member of the Police Force, or (c) a person authorised in writing by the Commission, either generally or in a special case, to act as an authorised officer for the purposes of the provision in which the expression occurs. Commission means the New South Wales Crime Commission constituted under the. New South Wales Crime Commission Act 1985 confiscation order means an assets forfeiture order or a proceeds assessment order.corresponding law means a law of the Commonwealth, another State or a Territory that is prescribed by the regulations as a law that corresponds to this Act.de facto partner of a person means the other party to a de facto relationship, within the meaning of the, with the person. Property (Relationships) Act 1984 dealing , in relation to an interest in property, includes:
(a) if the interest is a debt—making a payment to any person in reduction of the amount of the debt, and (b) removing the property in which the interest is held from New South Wales, and (c) receiving or making a gift of the interest, and (d) vesting the interest in a person in the course of administering the estate of a deceased person. director , in relation to a financial institution or a corporation, includes:
(a) if the institution or corporation is a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory—a member of the body corporate, and (b) any person occupying or acting in the position of director of the institution or corporation, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position, and (c) except as provided by subsection (4), any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act. effective control , in relation to an interest in property, includes effective control of the interest as provided by section 8.encumbrance , in relation to property, includes any interest, mortgage, charge, right, claim and demand in respect of the property.external serious crime related activity means serious crime related activity arising out of an offence under the law of the Commonwealth or a place outside this State (including outside Australia) which, if the offence had been committed in this State, would be a serious criminal offence.financial institution means:
(a) an authorised deposit-taking institution, or (b), (c) (d) a body corporate that is, or if it had been incorporated in Australia would be, a financial corporation within the meaning of section 51 (xx) of the Constitution of the Commonwealth. fraudulently acquired property means an interest in property that is fraudulently acquired property as provided by section 9A.illegal activity means:
(a) a serious crime related activity, or (b) an act or omission that constitutes an offence (including a common law offence) against the laws of New South Wales or the Commonwealth, or (c) an act or omission that occurs outside New South Wales, is an offence against the law of the place where it occurs and is of a kind that, if it had occurred in New South Wales, would have been an offence referred to in paragraph (b). illegally acquired property means an interest in property that is illegally acquired property as provided by section 9.indictable quantity means a quantity of a prohibited plant or a prohibited drug that is an indictable quantity under the. Drug Misuse and Trafficking Act 1985 interstate assets forfeiture order means an order or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.interstate crime related property declaration means a declaration or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.interstate proceeds assessment order means an order or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.interstate restraining order means an order or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.interstate serious offence means an offence (including a common law offence, where relevant) against the laws of another State, being an offence in relation to which an interstate assets forfeiture order, interstate crime related property declaration, interstate restraining order or interstate proceeds assessment order may be made under a corresponding law of the State.money means money in the form of cash.monitoring order means an order made under section 48 and in force.officer means a director, secretary, executive officer or employee.owner , in relation to an interest in property, includes a person who has effective control of the interest.premises includes all or part of any structure, building, aircraft, vehicle, vessel and place (whether built on or not).proceeds , in relation to an activity, includes any interest in property, and any service, advantage or benefit, that is derived or realised, directly or indirectly, as a result of the activity:
(a) by the person engaged in the activity, or (b) by another person at the direction or request (given or made directly or indirectly) of the person engaged in the activity. Proceeds Account means the Confiscated Proceeds Account established under section 32.proceeds assessment order means an order made under section 27 and in force.production order means an order made under section 33 and in force.prohibited drug means a substance that is a prohibited drug under the. Drug Misuse and Trafficking Act 1985 prohibited plant means a plant that is a prohibited plant under the. Drug Misuse and Trafficking Act 1985 property-tracking document means:
(a) a document relevant to:
(i) identifying, locating or quantifying any interest in property of a person who might reasonably be suspected of being, or of having been, engaged in a serious crime related activity, or (ii) identifying or locating any document necessary for the transfer of an interest in property of a person who might reasonably be suspected of being, or of having been, engaged in a serious crime related activity, or (b) a document relevant to:
(i) identifying, locating or quantifying an interest in property that might reasonably be suspected of being an interest that is serious crime derived property, or (ii) identifying or locating any document necessary for the transfer of an interest in property that might reasonably be suspected of being an interest that is serious crime derived property. restraining order means an order made under section 10 and in force.rules of court means rules made under the. Supreme Court Act 1970 serious crime derived property means an interest in property that is serious crime derived property as provided by section 9.serious crime related activity means serious crime related activity referred to in section 6.serious criminal offence —see section 6.working day means any day that is not a Saturday, Sunday or a public holiday.(2) A reference in this Act to acquiring an interest in property for sufficient consideration is a reference to acquiring the interest for a consideration that, having regard solely to commercial considerations, reflects the value of the interest.
(1) In this Act, a reference to a serious crime related activity of a person is a reference to anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence or, if charged:
(a) has been tried, or (b) has been tried and acquitted, or (c) has been convicted (even if the conviction has been quashed or set aside).
(1) In this Act, a reference to an interest of a person in property is a reference to:
(a) an interest the person has in real or personal property, or (b) a chose in action enforceable at the suit of the person, or (c) an interest of the person that is within a class of interests prescribed as interests in property for the purposes of this Act.
(1) An interest in property is serious crime derived property if:
(a) it is all or part of the proceeds of a serious crime related activity, or (b) it is all or part of the proceeds of the disposal of or other dealing in serious crime derived property, or (c) it was wholly or partly acquired using serious crime derived property. (2) The references in subsection (1) (b) and (c) to serious crime derived property are not limited to serious crime derived property described in subsection (1) (a) but also include interests in property that are serious crime derived property because of a previous operation or previous operations of subsection (1) (b) or (c) or their combined operation. (2A) Without limiting subsection (1), an interest in property is taken to be wholly or partly acquired using serious crime derived property if it is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using all or part of the proceeds of a serious crime related activity or serious crime derived property. (3) Once an interest in property becomes serious crime derived property it remains serious crime derived property even if the interest is disposed of or otherwise dealt with (including by being used to acquire an interest in property), but this is qualified by subsection (5).
(1) A restraining order is an order that no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances (if any) as are specified in the order. (2) The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of:
(a) specified interests, a specified class of interests or all the interests, in property of a person suspected of having engaged in a serious crime related activity or serious crime related activities, including interests acquired after the making of the order and before the making of an assets forfeiture order affecting the interests that are subject to the restraining order, or (b) specified interests, or a specified class of interests, in property that are interests of any other person, or (c) interests referred to in both paragraph (a) and paragraph (b). (2AA) The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, or a specified class of interests, in property that are held in a false name. (2A) A restraining order does not apply to an interest acquired after the order is made unless the order expressly provides that it does so apply. (3) The Supreme Court must make the order applied for under subsection (2) if the application is supported by an affidavit of an authorised officer stating that:
(a) in the case of an application in respect of an interest referred to in subsection (2) (a)—the authorised officer suspects that the person has engaged in a serious crime related activity or serious crime related activities and stating the grounds on which that suspicion is based, and (b) in the case of an application in respect of any other interest—the authorised officer suspects that the interest is serious crime derived property because of a serious crime related activity or serious crime related activities of a person and stating the grounds on which that suspicion is based, and the Court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion.
(1) An authorised officer may apply by telephone for a restraining order under section 10 (a telephone restraining order ).(2) The Supreme Court must make the order applied for if, in addition to the matters required under sections 10 and 10A (if applicable), the application is supported by a statement by the authorised officer that:
(a) the interest in property relates to funds held in a specified financial institution, and (b) the order is required urgently as there is a risk that the funds may be withdrawn or transferred to a place outside New South Wales (including outside Australia), and (c) it is not practicable for the authorised officer to appear in person.
(1) A person being examined under section 12 is not excused from answering any question, or from producing any document or other thing, on the ground that the answer or production might incriminate, or tend to incriminate, the person or make the person liable to forfeiture or penalty.
(1) If a restraining order applies to an interest in property of a particular kind and the provisions of any law, whether or not a law of the State, provide for the registration of title to, an interest in or a charge over, property of that kind, the authority responsible for administering those provisions must, on application by the Commission, record in the register kept under those provisions the particulars of the restraining order.
(1) A person who contravenes a restraining order, or any ancillary order under section 12, by disposing of or attempting to dispose of, or by otherwise dealing with or attempting to otherwise deal with, an interest in property that is an interest subject to the restraining order is guilty of an offence and punishable, on conviction, by a fine equivalent to the value of the interest (as determined by the Supreme Court) or by imprisonment for a period not exceeding 2 years, or both, unless it is proved that the person had no notice that the interest was subject to the restraining order and no reason to suspect that it was.
(1) Despite provision in a restraining order for the meeting of legal expenses out of any property to which the order applies, a legal expense is not to be met out of that property to the extent that the amount payable for any legal service concerned exceeds any maximum allowable cost for the service that is fixed under this section.
(1) The Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown all or any of the interests in property that are, or are proposed to be, subject to a restraining order when the assets forfeiture order takes effect. (1A) An application may be made under subsection (1) before or after or at the same time as an application for the relevant restraining order but may not be determined before the restraining order is granted. (2) The Supreme Court must make an assets forfeiture order if the Court finds it to be more probable than not that the person whose suspected serious crime related activity, or serious crime related activities, formed the basis of the restraining order was, at any time not more than 6 years before the making of the application for the assets forfeiture order, engaged in:
(a) a serious crime related activity involving an indictable quantity, or (b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more. (2A) The Supreme Court must make an assets forfeiture order if the Court finds it more probable than not that interests in property subject to an application are fraudulently acquired property that is also illegally acquired property. (3) A finding of the Court for the purposes of subsection (2) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based:
(a) on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for 5 years or more was committed, or (b) on a finding that some offence or other constituting a serious crime related activity was committed involving some quantity or other that was an indictable quantity. (3A) A finding of the Supreme Court for the purposes of subsection (2A) need not be based on a particular finding as to the commission of a particular offence and can be based on a finding that some offence or other constituting illegal activity was committed.
(1) On an assets forfeiture order taking effect in relation to an interest in property:
(a) the interest is forfeited to the Crown and vests in the Public Trustee on behalf of the Crown, and (b) if the person forfeiting the interest was in possession, or was entitled to possession, of the property, the Public Trustee may take possession of the property on behalf of the Crown.
(1) A person must not dispose of or otherwise deal with an interest in property that is the subject of an assets forfeiture order.
(1) If the Supreme Court is satisfied that an assets forfeiture order will operate to cause hardship to any dependant of the person who will forfeit an interest in property under the order, the Court:
(a) may order that the dependant is entitled to be paid a specified amount out of the proceeds of sale of the interest, being an amount that the Court thinks is necessary to prevent hardship to the dependant, and (b) may make ancillary orders for the purpose of ensuring the proper application of an amount so paid to a person who is under 18 years of age.
(1) If an assets forfeiture order:
(a) has been applied for but not made—a person whose interest in property might be subject to the order if made, or (b) has been made—a person whose interest in property was forfeited by the order, may apply to the Supreme Court for an order (in this section called an exclusion order ) excluding the interest from the operation of the assets forfeiture order or any relevant restraining order.(2) The Supreme Court must not make the exclusion order applied for unless it is proved that it is more probable than not that:
(a) in the case of an order relating to fraudulently acquired property—the interest in property to which the application relates is not fraudulently acquired property or is not illegally acquired property, or (b) in any other case—the interest in property to which the application relates is not illegally acquired property.
(1) If it is proved that it is more probable than not that a specified proportion of the value of an interest in property that has been forfeited under an assets forfeiture order is not attributable to the proceeds of an illegal activity, the Supreme Court may:
(a) make a declaration to that effect, and (b) order that the person who has forfeited the interest is entitled to be paid the proportion of the proceeds of sale of the interest that is specified in the declaration. (1A) If it is proved that it is more probable than not that a specified proportion of the value of an interest in property that has been forfeited under an assets forfeiture order on the ground that it was fraudulently acquired property was not fraudulently acquired property or is not attributable to the proceeds of an illegal activity, the Supreme Court may:
(a) make a declaration to that effect, and (b) order that the person who has forfeited the interest is entitled to be paid the proportion of the proceeds of sale of the interest that is specified in the declaration. (2) A declaration that an interest in property is not attributable to the proceeds of an illegal activity is to be made on the basis of the extent to which the interest in property concerned was not, when it first became illegally acquired property, acquired using the proceeds of an illegal activity.
(1) The Commission may apply to the Supreme Court for a proceeds assessment order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived by the person from an illegal activity, or illegal activities, of the person or another person that took place not more than 6 years before the making of the application for the order, whether or not any such activity is an activity on which the application is based as required by subsection (2) or (2A). (2) The Supreme Court must make a proceeds assessment order if the Court finds it to be more probable than not that the person against whom the order is sought was, at any time not more than 6 years before the making of the application for the order, engaged in:
(a) a serious crime related activity involving an indictable quantity, or (b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more. (2A) The Supreme Court must make a proceeds assessment order against a person who is 18 years or older if the Court finds it more probable than not that:
(a) the person derived proceeds from an illegal activity or illegal activities of another person, and (b) the person knew or ought reasonably to have known that the proceeds were derived from an illegal activity or illegal activities of another person, and (c) the other person was, at any time not more than 6 years before the making of the application for the order, engaged in:
(i) a serious crime related activity involving an indictable quantity, or (ii) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more. (2B) The Supreme Court may not make a proceeds assessment order in an application that relates wholly to external serious crime related activity, unless it is satisfied that no action has been taken under a law of the Commonwealth or any other place outside this State (including outside Australia) in relation to the proceeds of the external serious crime related activity. (2C) For the purposes of subsection (2B), an affidavit by an authorised officer that includes a statement that the officer has made due enquiry and is satisfied that no action has been taken under a law of the Commonwealth or any place outside this State (including outside Australia) against any interests in property in relation to the proceeds of the external serious crime related activity is proof, in the absence of evidence to the contrary, of the matters contained in the affidavit. (3) A finding of the Court for the purposes of subsection (2) or (2A) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based:
(a) on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for 5 years or more was committed, or (b) on a finding that some offence or other constituting a serious crime related activity was committed involving some quantity or other that was an indictable quantity. (4) The references in subsections (1) and (2) to a period of 6 years include a reference to a period that began before the commencement of this section.
(1) For the purpose of making an assessment under section 27 in relation to the proceeds derived by a person (in this section called the defendant ) from an illegal activity, or illegal activities, of the person or another person the Supreme Court is to have regard to the following matters:
(a) the money, or the value of any interest in property other than money, directly or indirectly acquired by:
(i) the defendant, or (ii) another person at the request, or by the direction, of the defendant, because of the illegal activity or activities, (b) the value of any service, benefit or advantage provided for:
(i) the defendant, or (ii) another person at the request, or by the direction, of the defendant, because of the illegal activity or activities, (c) the market value, at the time of the illegal activity or of each illegal activity, of a plant or drug similar, or substantially similar, to any involved in the illegal activity or each illegal activity, and the amount that was, or the range of amounts that were, ordinarily paid for an act similar, or substantially similar, to the illegal activity or each illegal activity, (d) the value of the defendant’s property before and after the illegal activity or each illegal activity, (e) the defendant’s income and expenditure before and after the illegal activity or activities. (2) If evidence is given at the hearing of an application for a proceeds assessment order that the value of the defendant’s property after an illegal activity or illegal activities of the defendant exceeded the value of the defendant’s property before the activity or activities, the Supreme Court is to treat the excess as proceeds derived by the defendant from the activity or activities, except to the extent (if any) that the Supreme Court is satisfied the excess was due to causes unrelated to an illegal activity or activities.
(1) This section applies if:
(a) an assets forfeiture order or proceeds assessment order is made, and (b) evidence or a warranty or other representation was given or made in proceedings for the order, or examination proceedings under this Act, by a person against whom the order is made (the defendant ) as to the defendant’s interests in property.(2) The Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown a specified interest in property of the defendant at the time the evidence, warranty or representation was given or made that was not disclosed in the evidence, warranty or representation. (3) The Supreme Court must make the order if the Court finds it more probable than not that the interest in property was an interest of the defendant at the time the evidence, warranty or representation was given or made.
(1) This section applies if:
(a) an assets forfeiture order or proceeds assessment order is made, and (b) evidence or a warranty or other representation is given or made in proceedings for the order, or examination proceedings under this Act, by a person against whom the order is made (the defendant ) as to the defendant’s interests in property.(2) The Commission may apply to the Supreme Court for an order requiring the defendant to pay to the Treasurer the value of the whole or part of an interest in property of the defendant at the time the evidence, warranty or representation was given or made, that was not disclosed in the evidence, warranty or representation, if:
(a) the whole or part of that interest was subsequently acquired by a person for sufficient consideration without knowing, and in circumstances that would not arouse a reasonable suspicion, that the interest was, at the time of acquisition, serious crime derived property or illegally acquired property, or (b) the whole or part of that interest subsequently vested in a person as a result of the distribution of the estate of a deceased person. (3) An order may be made despite the terms of any orders previously made by consent.
(1) If it is proved that it is more probable than not that a specified proportion of the value of an interest in property forfeited or paid under this Division is not attributable to the proceeds of an illegal activity and that, at the time of the failure to disclose the interest, the defendant did not know of his or her interest in the property, the Supreme Court may:
(a) make a declaration to that effect, and (b) in the case of an interest forfeited to the Crown—order that the Crown vest the interest in the applicant, and (c) in any other case—order that the person who has forfeited the interest or paid the amount is entitled to be paid the proportion of the proceeds of sale, or the amount paid, as the case requires, specified in the declaration. (2) An application for an order under this section must be made not later than 6 months after the order under section 31A or 31B was made, or with the leave of the Supreme Court.
(1) If an authorised officer has reasonable grounds for suspecting that a person has possession or control of a property-tracking document, or property-tracking documents, the authorised officer may:
(a) lay before the Supreme Court an information on oath setting out those grounds, and (b) apply to the Court, ex parte, for a production order against the person suspected of having possession or control of the document or documents.
(1) An authorised officer under this Act may apply to an authorised officer within the meaning of the , for the issue of a search warrant under this Division if the authorised officer under this Act has reasonable grounds for believing that there is or, within 72 hours, will be on any premises: Law Enforcement (Powers and Responsibilities) Act 2002
(a) anything in which a person has an interest that constitutes serious crime derived property, or (b) anything in which a person has an interest that constitutes illegally acquired property of a person reasonably suspected of having been engaged in serious crime related activities, or (c) evidence of a serious crime related activity, or (d) evidence of illegal activity of a person reasonably suspected of having been engaged in serious crime related activities, or (e) property an interest in which is subject to a restraining order.
(1) The person or persons executing a search warrant under this Division may seize anything that might reasonably be suspected of being:
(a) something in which a person has an interest that constitutes serious crime derived property, or (b) something in which a person has an interest that constitutes illegally acquired property of a person reasonably suspected of having been engaged in serious crime related activities, or (c) evidence of a serious crime related activity, or (d) evidence of illegal activity of a person reasonably suspected of having been engaged in serious crime related activities, or (e) property an interest in which is subject to a restraining order.
(1) If an authorised officer has reasonable grounds for suspecting that a financial institution may obtain information about transactions conducted by a particular person with the institution, the officer may:
(a) lay before the Supreme Court an information on oath setting out those grounds, and (b) apply to the Court for the making of an order directing the financial institution to give to the Commission, or to an authorised officer nominated by the Commission, information obtained by the institution about transactions conducted by the person with the institution.
(1) A financial institution that is, or has been, subject to a monitoring order is guilty of an offence if it discloses the existence or the operation of the order to any person (including the person to whom the order relates) except:
(a) the Commission or the person authorised by the Commission and named in the order, or (b) an officer or agent of the institution, for the purpose of ensuring that the order is complied with, or (c) an Australian legal practitioner, for the purpose of obtaining legal advice or representation in relation to the order. Maximum penalty: 1,000 penalty units.
(1) If an interstate assets forfeiture order, interstate crime related property declaration or interstate restraining order expressly, or by operation of the law of the Commonwealth, another State or a Territory, applies to property in New South Wales, the order may be registered under this Act.
(1) A registered interstate assets forfeiture order may be enforced in New South Wales as if it were an assets forfeiture order made under section 22 (2) at the time of registration.
(1) A charge is created on property subject to an interstate restraining order to secure payment of the amount due under an interstate proceeds assessment order if:
(a) the order was made in connection with an interstate serious offence committed or alleged to be committed by the owner of the property, and (b) an interstate proceeds assessment order is made in connection with that offence, and (c) the interstate proceeds assessment order is registered in a court in New South Wales under the of the Commonwealth. Service and Execution of Process Act 1992 (2) The charge is created as soon as both the interstate restraining order and the interstate proceeds assessment order are registered.
(1) A facsimile or other electronic copy of:
(a) a sealed copy of an interstate assets forfeiture order, interstate crime related property declaration or interstate restraining order, or (b) a sealed copy of any amendments made to any such order, is regarded for the purposes of this Act as the same as the sealed copy, if the copy is certified in accordance with the requirements of the court or body that issued it.
(1) Except as otherwise provided by this section, proceedings for an offence under this Act are to be dealt with summarily before a Local Court.
(1) A certificate that purports to have been signed by a full-time member or a delegate of the Commission and certifies that a specified person was or was not an authorised officer at a stated time is admissible in any proceedings under this Act and is evidence of the facts certified. (2) A certificate of conviction of an offence (being a certificate referred to in section 178 (Convictions, acquittals and other judicial proceedings) of the ) is admissible in any civil proceedings under this Act and is evidence of the commission of the offence by the person to whom it relates. Evidence Act 1995 (2A) A document certified by a judicial officer, registrar or other proper officer of a court stating that a specified person pleaded guilty to a specified offence on a specified day, and that the plea of guilty was not withdrawn, is admissible in any civil proceedings under this Act and is evidence of the commission of the offence by the person to whom it relates.
(Section 66A)