2005
2005
2008-07-01
act
government
publicspecial
act.reprint
act-2007-027
allinforce
2005-09-21
2005-09-21
1
2008-07-01
act-2008-062
2005
none
act-2005-073
9da4433c-b002-4da1-854c-3b68a669c637
766496eb-44ad-4256-ae4f-65027ea7406a
Note—
The Act was repealed by Sch 4 to the Statute Law (Miscellaneous Provisions) Act 2008
No 62 with effect from 1.7.2008.
An Act to amend the Confiscation of Proceeds of Crime Act
1989, the Civil Liability
Act 2002, the Crimes Act
1900 and the Forfeiture Act
1995 with respect to the seizure and restraint of property
connected with criminal activity, the supervision of damages paid to offenders
suffering from mental illness, money laundering offences and the application
of the forfeiture rule to persons found not guilty of murder by reason of
mental illness; and for other purposes.
1Name of
Act
This Act is the Confiscation of
Proceeds of Crime Amendment Act
2005.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Amendment of Confiscation of Proceeds of Crime Act 1989 No
90
The Confiscation of
Proceeds of Crime Act 1989 is amended as set out in
Schedule 1.
4–6
ss 4–6: Rep
2006 No 58, Sch 4.
Schedule 1Amendment of Confiscation of Proceeds of Crime Act
1989
(Section 3)
[1]Section 4
Definitions
Insert at the end of paragraph (b) (iii) of the
definition of appropriate court in section 4
(1):
, or
(iv)
a drug proceeds order against a person convicted
of a drug trafficking offence or an application for a drug proceeds
order,
[2]Section 4 (1), definition of
“appropriate court”
Insert after paragraph (b):
, or
(c)
in relation to a freezing notice, the court or
Magistrate in which or before whom proceedings (including committal
proceedings) for a serious offence on which the freezing notice is based are
held.
[3]Section 4 (1), definition of
“appropriate officer”
Insert “or freezing notices” after
“restraining orders” in paragraph (b).
[4]Section 4 (1), definition of
“authorised officer”
Insert “, Division 1A of Part 3”
after “orders)” in paragraph (b).
[5]
[6]Section 4 (1), definition of
“confiscation order”
Omit “or a pecuniary penalty
order”.
Insert instead “, pecuniary penalty order
or drug proceeds order”.
[7]
[8]Section 4
(1)
Insert in alphabetical order:
facsimile includes a reference to
any electronic communication device which transmits information in a form from
which written material is capable of being reproduced with or without the aid
of any other device or article.
freezing
notice means a notice issued under section
42C.
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.
telephone includes radio, facsimile
and any other communication device.
[9]–[15]
[16]Section 4
(9)
Insert after section 4 (8):
(9)
For the purposes of this Act, the value of
property (other than cash) in relation to any person holding
the property:
(a)
if any other person holds an interest in the
property, is the market value of the first-mentioned person’s beneficial
interest in the property (less the amount required to discharge any
encumbrance, other than a forfeiture order, on that interest),
and
(b)
in any other case, is its market
value.
[17]–[19]
[20]Section 13 Applications for
confiscation orders
Omit section 13 (2). Insert instead:
(2)
If a person is convicted of a drug trafficking
offence, an appropriate officer may apply to an appropriate court for one or
both of the following orders:
(a)
a forfeiture order against property that is
tainted property in respect of any drug trafficking
offences,
(b)
a drug proceeds order against the person in
respect of benefits derived by the person from the commission of any drug
trafficking offences.
[21]Section 13 (3A) (a)
(ii)
Insert “or 30 (1) (b)” after
“section 25 (2) (a1)”.
[22]Sections 14 (2) and 15 (2) (b)
and (5)
Insert “or drug proceeds order” after
“pecuniary penalty order” wherever
occurring.
[23]Section 18 Forfeiture
orders
Omit “section 13 (1) (a) or (2)”
wherever occurring in section 18 (1) and (4).
Insert instead “section 13 (1) (a) or (2)
(a)”.
[24]
[25]Section 27 Court may lift
corporate veil etc
Insert “or freezing notice” after
“restraining order” in section 27 (3) (b).
[26]Sections 29 and
30
Omit the sections. Insert instead:
29Drug proceeds
orders
(1)
If an application is made for a drug proceeds
order against a person (in this Division called the defendant) convicted of a drug
trafficking offence, the court must:
(a)
determine whether the defendant has derived any
benefit in connection with drug trafficking at any time,
and
(b)
if the court believes the defendant has so
benefited, assess the value of any such benefit, and
(c)
order the defendant to pay to the State a
pecuniary penalty equal to the amount so assessed.
(2)
If:
(a)
property that is the proceeds of drug trafficking
has been forfeited under this Act or a law of the Commonwealth, a Territory or
another State, or
(b)
a forfeiture order is proposed to be made against
property that is proceeds of drug trafficking,
the pecuniary penalty to be made is taken to be reduced
by an amount equal to the value of the property as at the time of the making
of the forfeiture order.
(3)
If:
(a)
a court makes an order under this section in
relation to an offence, and
(b)
in calculating the penalty amount, the court took
into account a proposed forfeiture order in respect of property,
and
(c)
an appeal against the forfeiture order is allowed
or the proceedings for the proposed forfeiture order terminate without the
proposed forfeiture order being made,
an appropriate officer may apply to the court for a
variation of the order to increase the penalty amount by the value of the
property and the court may, if it considers it appropriate to do so, vary the
order accordingly.
(4)
An amount payable by a defendant to the State in
accordance with an order made under this section is, for all purposes, taken
to be a civil debt due by the defendant to the State.
(5)
An order made by a court under this section may
be enforced as if it were an order made by the court in civil proceedings
instituted by the State against the defendant to recover a debt due by the
person to the State.
30Assessment of proceeds of drug
trafficking
(1)
A court is to assess the benefits (if any)
derived in connection with drug trafficking by having regard to information
before the court concerning all or any of the following matters:
(a)
the money, or the value of property other than
money, that came into the possession or control of the defendant, or another
person at the request or by the direction of the defendant, at any time in
connection with drug trafficking by the defendant,
(b)
the value of any benefit that was provided for
the defendant, or for another person at the request or direction of the
defendant, in respect of the defendant’s involvement or participation in
a public promotion relating to drug trafficking (or such part of the value of
the benefit as is commensurate with the proportion of the defendant’s
involvement or participation that is concerned with drug
trafficking),
(c)
the value of any benefit, other than a benefit of
a kind referred to in paragraph (a) or (b), that was provided for the
defendant, or another person at the request or by the direction of the
defendant, because of drug trafficking by the defendant,
(d)
the market value, at the time of the drug
trafficking, of substances similar or substantially similar to the prohibited
drug or prohibited plant involved in the drug trafficking offence or
offences,
(e)
the amount that was, or the range of amounts that
were, ordinarily paid for the doing of an act or thing similar or
substantially similar to the doing of the act or thing constituting the drug
trafficking,
(f)
the value of the defendant’s property
appearing to the court:
(i)
to have been held by the defendant at any time
since his or her conviction, or
(ii)
to have been transferred to the defendant at any
time since the beginning of the period of 6 years that ended when the
proceedings were instituted against the defendant,
(g)
the value of the defendant’s income and
expenditure:
(i)
at any time since his or her conviction,
or
(ii)
at any time since the beginning of the period of
6 years that ended when the proceedings were instituted against the
defendant.
(2)
In considering whether to treat a benefit of the
kind referred to in subsection (1) (b) as a benefit derived in connection with
drug trafficking, a court may have regard to any matter that it thinks fit,
including the public interest and any research, educational or rehabilitative
purpose of the public promotion concerned.
(3)
If evidence is given that the value of the
defendant’s property or the defendant’s income or
expenditure:
(a)
after the defendant committed drug trafficking
offences, or
(b)
during and after the end of the period of 6 years
that ended when proceedings for the drug trafficking offences were last
instituted against the defendant,
exceeded the value of the defendant’s property or
income or expenditure before the defendant committed the drug trafficking
offences or before the commencement of that period then the court must treat
the value of the benefits derived by the defendant because of drug trafficking
by the defendant as being not less than the amount of the
excess.
(4)
Subsection (3) does not apply to the whole or a
part of the excess referred to in that subsection if the defendant satisfies
the court that it was due to causes unrelated to drug trafficking or the
commission of other serious offences.
(5)
For the purposes of assessing the value of the
proceeds of drug trafficking in a case where a drug proceeds order has
previously been made against the defendant, the court must leave out of
account any of the defendant’s proceeds of drug trafficking that are
shown to the court:
(a)
to have been taken into account in determining
the amount to be recovered in respect of drug trafficking under a previous
drug proceeds order or pecuniary penalty order, or
(b)
to have been recovered under an order made under
the Criminal Assets Recovery Act
1990.
(6)
In assessing the value of the proceeds of drug
trafficking of a defendant convicted of a drug trafficking offence or
offences, any expenses or outgoings of the defendant in connection with the
commission of the offence or offences must not be
deducted.
(7)
This section applies to and in relation to
property that comes into the possession or under the control of a person
either within or outside New South Wales, and to benefits that are provided
for a person either within or outside New South Wales.
[27]Section 31 Statements relating
to drug trafficking
Omit “payment or other reward was
received” from section 31 (3) (b) and (6) wherever
occurring.
Insert instead “benefit was
derived”.
[28]Section 31 (4) and
(7)–(9)
Omit the subsections.
[29]Section
31A
Insert after section 31:
31AEvidence as to value of drugs
and other matters
(1)
In proceedings for an application for a drug
proceeds order, a member of the NSW Police Force, a member of the Australian
Federal Police or a Customs officer may give evidence (whether in person or in
a statement tendered to the court by the prosecution under this
Division):
(a)
as to the market value, at the time of a drug
trafficking offence in relation to a substance, or substantially similar
substances, and
(b)
as to the amount, or the range of amounts,
ordinarily paid for the doing of a similar or substantially similar act or
thing to the offence.
(2)
The evidence may be given by a person who is
experienced in the investigation of indictable offences under (or similar to
offences under) the Drug Misuse and Trafficking Act
1985.
(3)
Any such person may give evidence, to the best of
his or her information, knowledge and belief:
(a)
as to the amount that was the market value of a
prohibited drug or prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985 at
a particular time or during a particular period, or
(b)
as to the amount, or the range of amounts,
ordinarily paid at a particular time, or during a particular period, for the
doing of an act or thing in relation to any such prohibited drug or prohibited
plant,
despite any rule of law or practice relating to hearsay
evidence and the testimony is, in the absence of evidence to the contrary,
evidence of the matter testified to.
[30]Section
32
Omit sections 32–34. Insert instead:
32Court may look at property
subject to effective control of defendant
(1)
In assessing the value of benefits derived by a
person because of drug trafficking, a court may treat as property of the
defendant any property that, in the opinion of the court, is subject to the
effective control of the defendant.
(2)
On application by an appropriate officer, a court
may make an order declaring that specified property is available to satisfy a
drug proceeds order, if it is of the opinion that the property is subject to
the effective control of a defendant against whom the court has made a drug
proceeds order.
(3)
If a court declares that property is available to
satisfy a drug proceeds order:
(a)
the order may be enforced against the property as
if the property were property of the person against whom the order is made,
and
(b)
a freezing notice or restraining order may be
made in respect of the property as if the property were property of the person
against whom the order is made.
(4)
An appropriate officer must give written notice
of an application under this section to the defendant and to any other person
the appropriate officer has reason to believe may have an interest in the
property.
(5)
The defendant and any other person who claims an
interest in the property may appear and adduce evidence at the hearing of the
application.
[31]–[33]
[34]Part 3, Division
1A
Insert after Division 1:
Division 1AFreezing
notices
42ADefinitions
In this Division:
authorised justice means an
authorised officer within the meaning of the Criminal
Procedure Act 1986.
defendant has the same meaning as in
section 42B.
42BApplications for freezing
notices
(1)
An authorised officer may apply to an authorised
justice for a freezing notice in respect of specified property of a person if
the person (the defendant) has been, or is about to
be, charged with, or has been convicted of, a serious offence and the
authorised officer has reasonable grounds for believing that:
(a)
if the defendant has not been convicted of the
offence, the defendant committed the offence, and
(b)
the property is tainted property in relation to
that offence or the defendant derived benefits because of having committed the
offence or, if the offence is a drug trafficking offence, the property is the
defendant’s proceeds of drug trafficking.
(2)
An authorised officer may apply to an authorised
justice for a freezing notice in respect of the property of a person if
another person (the defendant) has been, or is about to
be, charged with, or has been convicted of, a serious offence and the
authorised officer has reasonable grounds for believing that:
(a)
the property is tainted property in relation to
the offence with which the defendant has been or is about to be charged, or of
which the defendant has been convicted, or is the defendant’s proceeds
of drug trafficking, or
(b)
the property is subject to the effective control
of the defendant and the defendant has derived a benefit, directly or
indirectly, from the commission of the serious
offence.
(3)
An application for a freezing notice (other than
a telephone freezing notice) must be in writing in the form prescribed by the
regulations and must be made by the applicant in person.
(4)
The applicant must provide (either orally or in
writing) any further information that the authorised justice requires
concerning the grounds on which the freezing notice is
sought.
42CIssue of freezing
notices
(1)
An authorised justice may issue a freezing notice
if satisfied that:
(a)
the defendant is likely to be charged with the
offence or a related offence within 48 hours or has been charged with or
convicted of a serious offence, and
(b)
there are reasonable grounds for the belief of
the officer as to the matters set out in subsection (2) (c) and (d) (i) or (e)
(i) or (ii) (if applicable).
(2)
An authorised justice must not issue a freezing
notice unless:
(a)
the application includes details of the authority
of the applicant to make the application, and
(b)
the application includes the grounds on which the
notice is being sought, and
(c)
the application is supported by a statement by
the applicant that the applicant believes that the defendant has committed a
serious offence, if the defendant has not been convicted of the offence,
and
(d)
in the case of property of the defendant, the
application is supported by a statement by the applicant:
(i)
that the applicant believes that the property to
which the application relates is tainted property in relation to that offence
or the defendant derived benefits because of having committed the offence or,
if the offence is a drug trafficking offence, the property is the
defendant’s proceeds of drug trafficking, and
(ii)
setting out the grounds on which the applicant
holds those beliefs, and
(e)
in the case of property of a person other than
the defendant, the application is supported by a statement by the applicant
that the applicant believes that:
(i)
the property is tainted property in relation to
the offence with which the defendant has been charged or convicted or is the
defendant’s proceeds of drug trafficking, or
(ii)
the property is subject to the effective control
of the defendant and the defendant has derived a benefit, directly or
indirectly, from the commission of the offence,
and setting out the grounds on which the applicant holds
those beliefs, and
(f)
the statements and any other information given by
the applicant in or in connection with the application are verified before the
authorised justice on oath or affirmation or by
affidavit.
(3)
In determining whether there are reasonable
grounds to believe that property is in the effective control of the defendant,
the authorised justice may have regard to the matters referred to in section
10.
(4)
A freezing notice may not be issued in respect of
property affected by a restraining order or forfeiture order or the subject of
an application for a restraining order or forfeiture order under this
Act.
(5)
A freezing notice under this Act and a
restraining order under the Criminal Assets
Recovery Act 1990 may not be made so as to be in force in
respect of the same interest in property at the same
time.
(6)
The issue of a freezing notice is a ministerial
function and is not a judicial function.
42DForm of freezing
notice
(1)
A freezing notice must direct that:
(a)
specified property not be disposed of, or
otherwise dealt with by the defendant or by any other person, except in the
manner and circumstances (if any) specified in the notice,
and
(b)
the property be held in the custody of the
Commissioner of Police or the defendant or another person, pending the
determination of an application for confirmation of the freezing
notice.
(2)
A freezing notice is to be in the form prescribed
by the regulations.
42ETelephone freezing
notices
(1)
An authorised officer may make an application by
telephone for a freezing notice.
(2)
An authorised justice must not issue a freezing
notice on an application made by telephone unless the authorised justice is
satisfied that the notice is required urgently and that it is not practicable
for the application to be made in person.
(3)
An application under this section must be made by
facsimile if the facilities to do so are readily available for that
purpose.
(4)
If it is not practicable for an application for a
freezing notice to be made by telephone directly to an authorised justice, the
application may be transmitted to the authorised justice by another person on
behalf of the applicant.
(5)
An authorised justice who issues a freezing
notice on an application made by telephone must:
(a)
complete and sign the notice,
and
(b)
furnish the notice to the person who made the
application or inform that person of the terms of the notice and of the date
and time when it was signed.
(6)
If a freezing notice is issued on an application
made by telephone, the applicant is to complete a form of freezing notice in
the terms indicated by the authorised justice under subsection (5) (b) and
write on it the name of that authorised justice and the date and time when the
notice was signed.
(7)
A form of freezing notice so completed is taken
to be a freezing notice issued in accordance with this
Act.
(8)
A freezing notice is to be furnished by an
authorised justice by transmitting it by facsimile, if the facilities to do so
are readily available, and the copy produced by that transmission is taken to
be the original document.
42FNotice of issue of freezing
notice
(1)
An applicant for a freezing notice must give
notice of the issuing of the notice to the defendant, any owner of property
affected by the notice and any other person subject to the
notice.
(2)
Notice must be given in accordance with the
regulations.
42GFalse or misleading
information in applications
(1)
A person must not, in or in connection with an
application for a freezing notice, give information to an authorised justice
that the person knows to be false or misleading in a material
particular.
Maximum penalty: 100 penalty units, or
imprisonment for 2 years, or both.
(2)
This section applies to an application by
telephone as well as in person.
(3)
This section applies whether or not the
information given is also verified on oath or affirmation or by
affidavit.
42HRecord of proceedings before
authorised justice
(1)
An authorised justice who issues a freezing
notice must cause a record to be made of all relevant particulars of the
grounds the authorised justice has relied on to justify the issue of the
notice.
(2)
The regulations may make provision for or with
respect to:
(a)
the keeping of records in connection with the
issue and execution of freezing notices, and
(b)
the inspection of any such records,
and
(c)
any other matter in connection with any such
records.
(3)
Any matter that might disclose the identity of a
person must not be recorded pursuant to this section if the authorised justice
is satisfied that the safety of any person might be jeopardised by doing
so.
42IApplication to confirm
freezing notice
(1)
An application for confirmation of the notice is
to be made to the appropriate court by an authorised officer, not later than
14 days after a freezing notice is issued.
(2)
The application is to be set down for hearing on
the first date for committal or trial proceedings for the serious offence on
which the freezing notice was based that occurs after the application is made,
or as soon as practicable after the application is made.
(3)
An applicant for confirmation of a freezing
notice must give notice of the application to the defendant, any owner of
property affected by the notice and any other person subject to the
notice.
(4)
A person given notice under this section is
entitled to appear and to adduce evidence at the hearing of the
application.
(5)
Notice must be given in accordance with rules of
court.
42JNotice to third
parties
If an application has been made to an appropriate
court to confirm a freezing notice in respect of property:
(a)
the court may, if it thinks fit, require the
officer making the application to give notice of the application to a person
who the court has reason to believe has an interest in the property or part of
the property, and
(b)
a person to whom the court requires notice to be
given under this section is entitled to appear and to adduce evidence at the
hearing of the application.
42KAppeals against freezing
notices issued by authorised justices
(1)
A defendant, an authorised officer or another
person claiming an interest in property affected by a freezing notice may, at
any time before the notice is confirmed, apply to the appropriate court to
have the freezing notice set aside or varied.
(2)
An application may be heard before the day set
down for hearing the application to confirm the notice.
(3)
On an application, the appropriate court must
proceed to deal with the matter under section 42L, whether or not an
application has been made under section 42I.
42LConfirmation of freezing
notices
(1)
An appropriate court may, on an application under
section 42I or 42K:
(a)
confirm the freezing notice (with or without
variation), or
(b)
set aside the freezing
notice.
(2)
An appropriate court may confirm a freezing
notice if it is satisfied that:
(a)
the application is supported by an affidavit by
an authorised officer that complies with this section, and
(b)
having regard to the matters contained in the
affidavit or other evidence given in the proceedings, there are reasonable
grounds to believe the matters set out in the affidavit,
and
(c)
proceedings have been commenced against the
defendant for a serious offence or the defendant has been convicted of a
serious offence, and
(d)
the property concerned is not affected by a
restraining order, or an application for a restraining order under this Act or
the Criminal Assets Recovery Act 1990,
and
(e)
it is appropriate in the circumstances to confirm
the notice.
(3)
The affidavit of the authorised officer
supporting the application must set out the officer’s belief, and the
grounds for the belief, that the defendant committed the serious offence
concerned (including details of any conviction) and as to one or more of the
following in relation to property the subject of the freezing notice:
(a)
in the case of property of the defendant, that
the property is tainted property in relation to the offence or the defendant
derived benefits because of having committed the offence or the property is
the defendant’s proceeds of drug trafficking,
(b)
in the case of property of a person other than
the defendant, that:
(i)
the property is tainted property in relation to
the offence or is the defendant’s proceeds of drug trafficking,
or
(ii)
the property is subject to the effective control
of the defendant and the defendant has derived a benefit, directly or
indirectly, from the commission of the serious
offence.
(4)
In determining whether there are reasonable
grounds to believe that property is in the effective control of the defendant,
the appropriate court must have regard to the matters referred to in section
10.
(5)
The appropriate court must make orders of a kind
referred to in section 42M in relation to property to which a freezing notice
applies if it confirms the freezing notice. Any such order is taken, for the
purposes of this Act, to be included in the terms of the freezing
notice.
(6)
If evidence is given at the hearing that property
to which the application relates was in the possession of the defendant at or
immediately after the commission of the offence:
(a)
if there is no evidence given tending to show
that the property was not used in, or in connection with, the commission of
the offence—the court must presume that the property was used in, or in
connection with, the commission of the offence, or
(b)
in any other case—the court must not
confirm a freezing notice in relation to the property unless it is satisfied,
on the balance of probabilities, that the property was used in, or in
connection with, the commission of the offence.
42MOrders for the management of
property
(1)
An appropriate court that confirms a freezing
notice is to make an order directing the Commissioner of Police:
(a)
to take control of the property (if it is not
under the control of the Commissioner) and, in any case, dispose of the
property or the part of the property specified in the order, in the manner
specified in the order, and
(b)
to retain any proceeds until they are payable
under this Act to another person or the State.
(2)
An appropriate court may, if it thinks it
appropriate to do so in the circumstances of the case, make one or more of the
following orders instead of the order referred to in subsection (1):
(a)
an order directing that the property, or the part
of the property specified in the order, is not to be disposed of, or otherwise
dealt with, by the defendant or any other person, except in the manner and
circumstances (if any) specified in the order,
(b)
an order directing the Public Trustee or the
Commissioner of Police to retain control or to take control of the property or
the part of the property specified in the order,
(c)
an order directing that the property or the part
of the property specified in the order be returned to or retained by the
defendant or another person,
(d)
an order that the defendant or another person be
allowed access to the property or the part of the property specified in the
order.
(3)
In determining whether it is appropriate in the
circumstances to make an order of a kind referred to in subsection (1) or (2),
the appropriate court is to have regard to the following matters:
(a)
whether a defendant who is in custody is likely
to be granted bail,
(b)
any hardship that is reasonably likely to be
caused to the defendant or a third party,
(c)
if the defendant is an Aboriginal person or a
Torres Strait Islander, when considering any hardship that is reasonably
likely to be caused to the defendant or a third party, the responsibilities
arising from the defendant’s ties to extended family and
kinship,
(d)
the nature of the property and whether it is
unique in nature,
(e)
the case against the
defendant,
(f)
the expenses relating to storage and maintenance
of the property,
(g)
the use that is ordinarily or had been intended
to be made of the property.
(4)
In addition to any other order under this
section, the appropriate court may make one or more of the following
orders:
(a)
an order providing for the provision, out of the
property, of the defendant’s reasonable living expenses, business
expenses or reasonable expenses in defending a criminal
charge,
(b)
if the freezing notice directs the Public Trustee
or the Commissioner of Police to take control (but not to dispose) of the
property:
(i)
an order regulating the manner in which the
Public Trustee or Commissioner is to exercise his or her functions under the
notice or order, or
(ii)
an order determining any question relating to the
property to which the notice relates, including any question relating to the
liabilities of the owner or the exercise of the functions of the Public
Trustee or Commissioner, or
(iii)
an order directing the owner or a director of a
body corporate that is the owner to give to the Public Trustee or
Commissioner, within a period specified in the order, a statement, verified by
the oath or affirmation of the person making the statement, setting out the
particulars of the property, or dealings with the property, that the court
thinks proper,
(c)
such other ancillary or consequential orders as
the court thinks appropriate in the circumstances.
(5)
An order under this section directing the sale of
property must require it to be sold for not less than its value at the time of
the sale.
42NUndertakings as to payment of
damages or costs
(1)
An appropriate court may refuse to confirm a
freezing notice if the State refuses or fails to give the court such
undertakings as the court considers appropriate with respect to the payment of
damages or costs, or both, in relation to the making and operation of the
notice.
(2)
For the purposes of an application to confirm a
freezing notice, an appropriate officer may, on behalf of the State, give to
the appropriate court such undertakings with respect to the payment of damages
or costs, or both, as are required by the court.
42OContravention of freezing
notices
(1)
A person who knowingly contravenes a freezing
notice is guilty of an offence and punishable, on conviction, by a fine
equivalent to the value of the property subject to the notice (as determined
by the appropriate court) or by imprisonment for a period not exceeding 2
years, or both.
(2)
If:
(a)
a freezing notice is made against property,
and
(b)
the property is disposed of, or otherwise dealt
with, in contravention of the notice, and
(c)
the disposition or dealing was either not for
sufficient consideration or not in favour of a person who acted in good
faith,
an appropriate officer may apply to the Supreme Court
for an order that the disposition or dealing be set
aside.
(3)
The Supreme Court may, on an application under
subsection (2), make an order:
(a)
setting aside the disposition or dealing as from
the day on which the disposition or dealing took place, or
(b)
setting aside the disposition or dealing as from
the day of the order and declaring the respective rights of any persons who
acquired interests in the property on or after the day on which the
disposition or dealing took place and before the day of the
order.
42PDuration of freezing
notices
A freezing notice ceases to be in force if any of
the following occurs:
(a)
if the defendant has not been charged with a
serious offence at the end of the period of 48 hours after the issuing of the
notice,
(b)
on an appropriate court refusing to confirm the
freezing notice or if an application for confirmation of the notice has not
been made within 14 days after it is issued,
(c)
if the charge is withdrawn and the defendant is
not charged with a related offence by the time of the
withdrawal,
(d)
if the defendant is acquitted of the charge or
the charge is dismissed and the defendant is not charged with a related
offence by the time of the acquittal or dismissal,
(e)
if the appropriate court refuses to make a
forfeiture order in relation to the property to which it relates and:
(i)
an appeal against the refusal is finally
determined, or
(ii)
the time for making an appeal against the refusal
expires and an appeal is not made before the time
expires,
(f)
if a court makes an order setting aside the
freezing notice in respect of the whole of the property to which it
relates.
42QEffect of other orders on
freezing notices
(1)
If, while a freezing notice in respect of
property is in force, a court makes a forfeiture order in respect of the
property or makes a pecuniary penalty order or a drug proceeds order against
the defendant subject to the notice, the court or an appropriate court
may:
(a)
if it considers it appropriate, make an order
setting aside the freezing notice in respect of the whole or a specified part
of the property, and
(b)
make any other order or orders it considers
appropriate in relation to the operation of the freezing
notice.
(2)
If, while a freezing notice in respect of
property is in force, a court refuses to make a forfeiture order in respect of
the property or refuses to make a pecuniary penalty order or drug proceeds
order against the defendant, the court or an appropriate court may:
(a)
if it considers it appropriate, make an order in
relation to the period for which the freezing notice is to remain in force,
and
(b)
make any other order or orders it considers
appropriate in relation to the operation of the freezing
notice.
(3)
An order under this section may:
(a)
set aside the freezing notice wholly or in part,
or
(b)
take effect:
(i)
on the making of the forfeiture order, pecuniary
penalty order or drug proceeds order, or
(ii)
at a specified time, or
(iii)
if relevant, on the payment of a penalty amount
to the State, or
(iv)
on the happening of some other specified
event.
42RPurchase of
property
(1)
The payment to the State of an amount equal to
the value of property subject to a freezing notice operates to discharge the
freezing notice (except in so far as the court otherwise
directs).
(2)
For the purposes of this section, the value of
property is the value agreed between the Attorney General and the person
seeking to discharge the freezing notice.
(3)
A payment may not be made under this section
before a freezing notice is confirmed by a court.
42SReturn of
property
(1)
If a freezing notice ceases to be in force and
the property concerned is not subject to any other order under this Act, the
person who is lawfully entitled to it may apply to the Attorney General for
the return of the property or for payment of an amount equal to the value of
the property together with interest calculated from the date, and at the rate,
prescribed by the regulations.
(2)
The Attorney General must, if satisfied that the
person is lawfully entitled to the property, return the property or pay the
amount, as the case requires, not later than 6 months after receipt of the
application.
(3)
If the person who is lawfully entitled to
property or to be paid an amount under this section cannot be ascertained or
an application is not made within 6 months of the freezing notice ceasing to
be in force, the property is to be dealt with as if it had been forfeited
under this Act.
42TArrangements for management of
property
The Commissioner of Police may enter into
arrangements with the Public Trustee or any other person with respect to the
management of property that is under the control of the Commissioner under a
freezing notice.
42UAppeals against refusal to
confirm freezing notice
(1)
The Attorney General, the Director of Public
Prosecutions or the Commissioner of Police may appeal to the appeal court
against a refusal by an appropriate court to confirm a freezing
notice.
(2)
On an appeal, the appeal court may make any order
that an appropriate court may make on an application for confirmation of a
freezing notice.
(3)
An order made by the appeal court under this
section is taken to have been made by the appropriate court, but is not on
that account subject to further appeal.
(4)
In this section, the appeal
court is:
(a)
in relation to a Magistrate, Local Court, the
Children’s Court or District Court—the Supreme Court,
and
(b)
in relation to the Supreme Court—the Court
of Criminal Appeal.
42VCourt may make further orders
relating to freezing notices
(1)
An appropriate court that confirms a freezing
notice or a court that is dealing with proceedings for a serious offence in
relation to which a freezing notice has been issued may, at any time, make any
orders ancillary to the freezing notice that the court considers
appropriate.
(2)
Without limiting the generality of subsection
(1), the court may make any one or more of the following orders:
(a)
an order varying the terms of the freezing
notice, including the property to which it relates and any conditions of the
notice,
(b)
an order with respect to the carrying out of any
undertaking with respect to the payment of costs or damages given by the State
in connection with the confirmation of the freezing
notice,
(c)
an order setting aside the freezing notice in
respect of the whole or part of the property.
(3)
An order under this section may be made on the
application of any of the following persons:
(a)
an appropriate officer,
(b)
the owner,
(c)
a person directed by the freezing notice to take
control of property subject to the notice,
(d)
any other person with the leave of the
court.
(4)
A person who makes an application under this
section must give notice of the application, as prescribed by the regulations
or rules of court, to each other person who is entitled, by virtue of
subsection (3) (a)–(c), to make an application under this
section.
[35], [36]
[37]Section 43
(9)
Insert after section 43 (8):
(9)
A restraining order may not be made in respect of
property affected by a freezing notice or the subject of a current application
for a freezing notice under this Act.
[38]Section 45 Supreme Court may
make further orders relating to restraining orders
Omit section 45 (6) and (7). Insert
instead:
(6)
A person who makes an application under this
section in relation to a restraining order must give notice of the
application, as prescribed by the regulations or rules of court, to each other
person who is entitled, by virtue of subsection (3) (a)–(c), to make an
application under this section in relation to the order.
[39]New section
45A
Renumber section 50 as section 45A and insert
after section 45.
[40]New section
45B
Renumber section 55 as section 45B and insert
after new section 45A.
[41]Part 3, Division 3,
heading
Insert before section 46:
Division 3General provisions applying to
restraining orders and freezing notices
[42]Section
46
Omit the section. Insert instead:
46Order for taxation of legal
expenses to be met out of restrained or frozen property
(1)
If:
(a)
the Supreme Court makes a restraining order
directing the Public Trustee to take control of property or an appropriate
court makes a freezing notice directing the Public Trustee or Commissioner of
Police to take control of property, and
(b)
the order or notice makes provision for meeting,
out of the property or part of it, a person’s reasonable expenses in
defending a criminal charge,
the Public Trustee or Commissioner may apply to the
court for an order under subsection (3).
(2)
The Public Trustee or Commissioner must give to
the person written notice of an application under this
section.
(3)
On an application, the court may order that the
expenses be taxed as provided in the order or notice or may dismiss the
application.
(4)
An applicant for an order need not, except as
ordered by the court after the application is made, take any steps for the
purpose of meeting the expenses as provided by the restraining order or
freezing notice unless and until:
(a)
an order under subsection (3) in relation to the
expenses is complied with, or
(b)
the application, and any appeal arising out of
it, are finally determined, or otherwise disposed of, otherwise than by the
making of such an order.
[43]Section 47 Public Trustee or
Commissioner of Police to discharge confiscation order
Insert “or Commissioner of Police”
after “Public Trustee” where firstly occurring in section 47 (1)
(a).
[44]Section 47 (1) (a) and (4)
(a)
Insert “or freezing notice” after
“restraining order” wherever occurring.
[45]Section 47 (1)
(b)
Omit “or drug proceeds
order”.
[46]Section 47
(1)
Insert “or Commissioner” after
“Public Trustee” where secondly and thirdly
occurring.
[47]Section 47 (2), (4), (5) and
(6)
Insert “or Commissioner” after
“Public Trustee” wherever occurring.
[48]Section 47 (4)
(a)
Insert “or Commissioner’s”
after “Public Trustee’s” wherever
occurring.
[49]Section 47
(6)
Omit “or drug proceeds order”
wherever occurring.
[50]Section 48 Charge on property
subject to restraining order or freezing notice
Omit section 48 (1) (a). Insert instead:
(a)
in reliance on the charging, or the proposed
charging, of a person with, or the conviction of a person of, a serious
offence, a court has made a restraining order or confirmed a freezing notice
in respect of property of a person, and
[51]Section 48
(1)
Insert “or freezing notice” after
“restraining order” where secondly
occurring.
[52]Section 48 (2) (c)
(iii)
Omit the subparagraph. Insert instead:
(iii)
if the restraining order or freezing notice
directed the Public Trustee or the Commissioner of Police to take control of
the property—by the owner of the property with the consent of the Public
Trustee or the Commissioner, or
[53]Section 48 (4)
(a)
Insert “or Commissioner” after
“Public Trustee”.
[54]Section 49 Registration of
restraining orders and freezing notices
Insert “or freezing notice” after
“restraining order” wherever occurring in section 49
(1).
[55]Section 49
(2)
Omit “a restraining order”. Insert
instead “an order or notice”.
[56]Section 49
(2)
Omit “section 50”. Insert instead
“section 42O or 45A”.
[57]Section 49
(2)
Omit “the restraining order”. Insert
instead “the order or notice”.
[58]Section 49
(3)
Insert “or freezing notice” after
“restraining order”.
[59]Section 49
(3)
Insert “or notice” after “the
order”.
[60]Section 51 Hindering or
obstructing Public Trustee or Commissioner of Police
Omit section 51 (1). Insert instead:
(1)
A person must not hinder or obstruct the Public
Trustee or the Commissioner of Police in the performance of their obligations
under a restraining order or freezing notice.
Maximum penalty: 20 penalty units or imprisonment
for 6 months, or both.
[61]Section
51A
Insert after section 51:
51AOrders to furnish statements
to Public Trustee or Commissioner of Police
(1)
A person directed by an order under section 42M
or 45 to furnish a statement to the Public Trustee or Commissioner of Police
is not excused from:
(a)
furnishing the statement, or
(b)
setting out particulars in the
statement,
on the ground that the statement or particulars might
tend to incriminate the person or make the person liable to a forfeiture or
penalty.
(2)
A statement furnished to the Public Trustee or
Commissioner under any such order, and any information, document or thing
obtained as a direct or indirect consequence of the statement, is not
admissible against the person in any criminal proceedings except a proceeding
in respect of the falsity of the statement.
[62]Section 52 Protection of
Public Trustee and Commissioner of Police from liability in certain
cases
Insert “or Commissioner of Police”
after “Public Trustee” wherever occurring in section 52 (2) and
(3).
[63]Section 52 (2) and
(3)
Insert “or freezing notice” after
“restraining order” wherever occurring.
[64]Section 53 Fees payable to
Public Trustee or Commissioner of Police
Insert “or Commissioner of Police”
after “Public Trustee” wherever occurring.
[65]Section
53
Insert “or freezing notice” after
“restraining order”.
[66]Section 54 Court may revoke
orders or notices
Omit “the Supreme Court has made a
restraining order, the Court may, on application made to it by the person,
revoke the order”.
Insert instead “a court has made a
restraining order or confirmed a freezing notice, the court may, on
application made to it by the person, revoke the order or
notice”.
[67]Section 54 (a) and
(b)
Omit “Court” wherever occurring.
Insert instead “court”.
[68]Section 54
(2)
Insert at the end of section 54:
(2)
A person who makes an application under this
section must give notice of the application, as prescribed by the regulations
or rules of court.
[69]Section 56 Notice of
applications under this Part
Omit the section.
[70]Section 57 Certificate by
Public Trustee or Commissioner of Police
Insert “or freezing notice” after
“restraining order” wherever occurring.
[71]Section 57
(2)
Insert at the end of section 57:
(2)
If a freezing notice is in force directing the
Commissioner of Police to take control of property, a certificate by the
Commissioner:
(a)
certifying that the freezing notice has been made
and is in force, and
(b)
stating the terms of the freezing
notice,
is to be accepted by all courts, officers and other
persons, whether acting under any Act or not, as evidence of the matters so
certified and stated and of the Commissioner’s right to act under the
notice, without production of any further proof.
[72]Section 62 Effect of
production orders on proceedings etc
Insert “or to confirm a freezing
notice” after “drug proceeds order” in section 62
(3).
[73]–[76]
[77]Section 74 Proceedings for
offences
Omit “under section 50 (contravention of
restraining orders)” from section 74 (2).
Insert instead “under section 42O or
45A”.
[78]Section 74
(3)
Omit “under section 50
shall”.
Insert instead “under section 42O or 45A
must”.
[79]–[83]
[84]Section 79 Effect of
registration of interstate restraining orders
Omit “48, 54, 55” from section 79
(2). Insert instead “45B, 48, 54”.
[85]–[96]
[97]Section 89 Interstate
operation of New South Wales orders and notices
Omit “or restraining order” wherever
occurring.
Insert instead “, restraining order or
freezing notice”.
[98]Section 89 (1), (2), (3) (a),
(b) and (c)
Insert “or notice” after “the
order” wherever occurring.
[99]Section 90 Costs incurred on
variation of orders or notices on application by third
parties
Omit “the Supreme Court” from section
90 (1) (a). Insert instead “a court”.
[100]Section 90 (1)
(a)
Omit “or restraining
order”.
Insert instead “, restraining order or
freezing notice”.
[101]Section 90
(1)
Omit “Supreme Court may”. Insert
instead “court may”.
[102]Section 90 (2), (3), (4) and
(5)
Omit “Supreme Court” wherever
occurring. Insert instead “court”.
[103]Section 90
(6)
Omit the subsection. Insert instead:
(6)
In this section:
third
party, in relation to a forfeiture order, restraining order
or freezing notice, means a person who is not the subject of the order or
notice.
vary includes limit the manner in
which an order or notice applies.
[104]
[105]Section 91
(b)
Insert “or section 42S (return of
property)” after “orders)”.
[106]–[108]
sch 1: Am 2006 No 58,
Sch 4; 2007 No 27, Sch 4.6.
schs 2–4: Rep
2006 No 58, Sch 4.
Schedules 2–4
Historical
notes
Table of amending
instruments
Confiscation of
Proceeds of Crime Amendment Act 2005 No 73. Second reading
speech made: Legislative Assembly, 21.9.2005; Legislative Council, 18.10.2005.
Assented to 21.10.2005. Date of commencement (except Sch 1 [1]–[4] [6]
[8] (insofar as it inserts a definition of freezing
notice) [16] [20]–[23] [25]–[30] [34]
[37]–[72] [77] [78] [84] [97]–[103] and [105]), 28.10.2005, sec 2
and GG No 132 of 28.10.2005, p 8934; date of commencement of Sch 1
[1]–[4] [6] [8] (insofar as it inserts a definition of freezing notice) [16]
[20]–[23] [25]–[30] [34] [37]–[72] [77] [78] [84]
[97]–[103] and [105], 1.1.2008, sec 2 and GG No 175 of 30.11.2007, p
8671. This Act has been amended as follows:
2006
No
58
Statute Law
(Miscellaneous Provisions) Act 2006. Assented to
20.6.2006.
Date of commencement of Sch 4, assent, sec 2
(1).
2007
No
27
Statute Law
(Miscellaneous Provisions) Act 2007. Assented to
4.7.2007.
Date of commencement of Sch 4, assent, sec 2
(1).
Table of
amendments
Secs
4–6
Rep 2006 No
58, Sch 4.
Sch
1
Am 2006 No
58, Sch 4; 2007 No 27, Sch 4.6.
Schs
2–4
Rep 2006 No
58, Sch 4.