Criminal Property Forfeiture Act 2002

This Act may be cited as the Criminal Property Forfeiture Act

2002.

The provisions of this Act come into operation on the date fixed by the Administrator by notice in the Gazette.

The objective of this Act is to target the proceeds of crime in general and drug-related crime in particular in order to prevent the unjust enrichment of persons involved in criminal activities.

This Act binds the Crown in right of the Territory and, so far as the legislative power of the Legislative Assembly permits, the

Crown in all its other capacities.

This Act does not render the Territory, the Commonwealth, a

State or another Territory liable to prosecution for an offence.

In this Act:

account means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for a fixed term deposit and a safety deposit box.

agreement means a tenancy, lease, hire agreement or contract.

conviction, in relation to a forfeiture offence, has the meaning in section 161.

corporation means any body corporate, however formed, and includes:

a financial institution; and

a corporation as defined in section 57A of the Corporations Act

2001; and

a corporation sole.

corresponding law:

for Part 10A – see section 130A; or

otherwise – means a law of the Commonwealth, a State or another Territory that is prescribed by regulation as a law that corresponds to this Act.

crime-derived, in relation to property, see section 12.

crime-used, in relation to property, see section 11.

crime-used property substitution declaration means a declaration under section 81.

criminal benefit, see section 74.

criminal benefit declaration means a declaration under section 75 or 76.

criminal use, in relation to a person and property, see section 84.

dangerous drug, see section 3(1) of the Misuse of

Drugs Act 1990.

deal, in relation to property, see section 56.

declared drug trafficker, see section 8.

dispose of, in relation to a charge, means:

withdraw; or

file a no true bill; or

dismiss; or

file a nolle prosequi in relation to the offence.

DPP means the Director of Public Prosecutions appointed under the Director of Public Prosecutions Act 1990 or a person acting on the Director's behalf.

effective control, in relation to property, has the meaning in section 7.

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

examination means an examination under an examination order.

examination order means an order under section 18(1).

financial institution means:

an ADI; or

the Reserve Bank of Australia; or

a person who carries on State banking within the meaning of section 51(xiii) of the Constitution of the Commonwealth; or

a financial corporation within the meaning of section 51(xx) of the Constitution of the Commonwealth; or

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.

Fines Recovery Unit means the Fines Recovery Unit established under the Fines and Penalties (Recovery) Act 2001.

forfeitable property declaration means a declaration under section 92.

forfeiture offence, see section 6.

give, in relation to property, includes transfer for consideration that is significantly less than the market value of the property at the time of transfer.

innocent party, see section 66.

instrument, in relation to a dealing with land, see section 4 of the Land Title Act 2000.

interest, in relation to property, means:

a legal or equitable estate or interest in the property; or

a right, power or privilege over or in connection with the property.

interstate forfeiture order means an order (however described) that is made by or under a corresponding law of a State or another Territory and that is prescribed by the Regulations for this definition.

interstate restraining order means an order (however described) that is made by or under a corresponding law of a State or another Territory and that is prescribed by the Regulations for this definition.

land includes an interest in land.

land register, see section 4 of the Land Title Act

2000.

lawfully acquired, in relation to any property, service, advantage or benefit, see section 77.

liable to forfeiture under this Act, in relation to property, see section 10(5).

monitoring order means an order under section 29(1).

objection means an objection to the restraint of property filed under section 59.

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.

premises includes a vessel, aircraft, vehicle, structure, building and any land or place whether built on or not.

production order means an order under section 23.

prohibited plant see section 3(1) of the Misuse of

Drugs Act 1990.

property means:

real or personal property of any description, wherever situated and whether tangible or intangible; or

a legal or equitable interest in any property mentioned in paragraph (a).

property-tracking document, see section 27.

registered, in relation to an interstate restraining order or an interstate forfeiture order, means registered under section 123 or 127, respectively.

registrar means the office (however described) of a registrar under an Act that provides for registration of property other than land.

registration, in relation to an instrument relating to a dealing in land, has the same meaning as in the Land Title Act

2000.

respondent means:

in relation to an application for an unexplained wealth declaration, a criminal benefit declaration or a crime-used property substitution declaration – the person against whom the declaration is sought; or

in relation to an unexplained wealth declaration, a criminal benefit declaration or a crime-used property substitution declaration

– the person against whom the declaration is made.

restraining order means an order made by a court under section 43 or 44 but does not include an interim restraining order under section 40.

statutory charge, see section 4 of the Land Title

Act 2000.

statutory restrictions notice, see section 35 of the Land Title Act 2000.

suspension order means an order under section 29(2).

Territory taxes, in relation to restrained property, means any rates, land tax, local government or other statutory charges imposed on the property under a law of the Territory.

transaction, in relation to an account with a financial institution, includes:

the making of a fixed term deposit; and

the transferring of the amount of a fixed term deposit, or any

part of it, at the end of the term.

unexplained wealth:

for Part 10A – see section 130A; or

otherwise – see section 68.

unexplained wealth declaration means a declaration under section 71.

valuable consideration, in relation to the transfer of property, does not include:

any consideration for the transfer arising from the fact of a family relationship between the transferor and transferee; or

if the transferor is a spouse or de facto partner of the transferee – the making by the transferor of a deed in favour of the transferee; or

a promise by the transferee to become a spouse or de facto partner of the transferor; or

any consideration arising from the transferor's love or affection for the transferee; or

the transfer of the property as a result of the distribution of a deceased estate; or

the transfer of the property by way of gift.

wealth, see section 70.

Note for section 5

The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.

For this Act, a forfeiture offence is:

an offence against a law in force anywhere in Australia that is punishable by imprisonment for 2 years or more; or

any other offence that is prescribed for this section.

For this Act, a person has effective control of property if, although the person does not have the legal estate in the property, the property is directly or indirectly subject to the control of the person or is held for the ultimate benefit of the person.

Without limiting subsection (1), when determining whether a person has effective control of any property, the following matters may be taken into account:

any shareholdings in, debentures over or directorships of any corporation that has a direct or indirect interest in the property;

any trust that has a relationship to the property;

family, domestic and business relationships between persons having an interest:

in the property; or

in a corporation that has a direct or indirect interest in the property; or

in a trust that has a relationship to the property;

any other relevant matters.

In this Act:

declared drug trafficker means:

a person who is declared to be a drug trafficker under section 36A of the Misuse of Drugs Act 1990; or

a person who is taken to be a declared drug trafficker under subsection (2) or (3).

A person is taken to be a declared drug trafficker for this Act if:

the person is charged with an offence specified in section 36A(6) of the Misuse of Drugs Act 1990; and

the person could be declared to be a drug trafficker under section 36A of that Act if he or she is convicted of the offence; and

before the charge is disposed of or finally determined, the person absconds in connection with the offence.

A person is taken to be a declared drug trafficker for this Act if a declaration is made under section 9 in respect of the person.

The DPP may apply to the Supreme Court for a declaration under this section that a deceased person is taken to be a declared drug trafficker for this Act.

An application under subsection (1) can only be made if:

a person had been charged with an offence specified in section 36A(6) of the Misuse of Drugs Act 1990; and

the person could have been declared to be a drug trafficker under section 36A of that Act if he or she was convicted of the offence; and

before the charge was disposed of or finally determined, the person died.

On hearing an application under subsection (1), if the court is satisfied that it is more likely than not that the deceased person, had he or she not died, would have been declared under section 36A of the Misuse of Drugs Act 1990 to be a drug trafficker, the court must make a declaration to that effect.

Part 2 Application

This Act applies:

to property:

owned or effectively controlled; or

previously owned;

by persons who are involved in or taken to be involved in criminal activities; and

to property that is crime-used; and

to property that is crime-derived.

The property (real or personal) of a person who is involved or taken to be involved in criminal activities is forfeit to the

Territory to the extent provided in this Act to compensate the

Territory community for the costs of deterring, detecting and dealing with the criminal activities.

Crime-used or crime-derived property (real or personal) is forfeit to the Territory to deter criminal activity and prevent the unjust enrichment of persons involved in criminal activities.

For this Act, a person is taken to be involved in criminal activities if:

the person is declared under section 36A of the Misuse of

Drugs Act 1990 to be a drug trafficker; or

an unexplained wealth declaration or a criminal benefit declaration is made in relation to the person; or

the person is found guilty of a forfeiture offence.

Property is liable to forfeiture under this Act:

if the property is:

owned or effectively controlled, or has at any time been given away, by a declared drug trafficker; or

owned or effectively controlled, or has at any time been given away, by a person who has unexplained wealth; or

owned or effectively controlled, or has at any time been given away, by a person who has acquired a criminal benefit; or

crime-used property; or

crime-derived property; and

whether the relevant forfeiture offence was committed:

in the Territory or elsewhere; and

before or after the commencement of this Act; and

whether or not any person has been charged with, or found guilty of, the relevant forfeiture offence and, if a person has been found guilty of the offence, whether the finding of guilt was before or after the commencement of this Act; and

whether the property is in the Territory or outside the

Territory.

For this Act, property is crime-used if:

the property is or was used, or intended for use, directly or indirectly, in or in connection with the commission of a forfeiture offence or in or in connection with facilitating the commission of a forfeiture offence; or

the property is or was used for storing property that was acquired unlawfully in the course of the commission of a forfeiture offence; or

an act or omission was done, omitted to be done or facilitated in or on the property in connection with the commission of a forfeiture offence.

Without limiting subsection (1), property described in that subsection is crime-used whether or not:

the property is also used, or intended or able to be used, for another purpose; or

any person who used or intended to use the property as mentioned in subsection (1) has been identified; or

any person who did or omitted to do anything that constitutes all or part of the relevant forfeiture offence has been identified; or

any person has been charged with or convicted of the relevant forfeiture offence.

Property that is wholly or partly derived or realised, directly or indirectly, from the commission of a forfeiture offence is crime-derived, whether or not:

any person has been charged with or convicted of the offence; or

any person who directly or indirectly derived or realised the property from the commission of the offence has been identified; or

any person who directly or indirectly derived or realised the property from the commission of the offence was involved in the commission of the offence.

Without limiting subsection (1), property of the following kinds is crime-derived:

stolen property;

property acquired by legitimate means that could not have been acquired if crime-derived property had not been used for other purposes;

any thing of monetary value acquired, in Australia or 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 of a forfeiture offence, whether or not the thing was lawfully acquired and whether or not any person has been charged with or convicted of the offence.

Property is also crime-derived if it is bought with or exchanged for, wholly or partly, crime-derived property (including property that acquired the status of crime-derived property because of a previous operation or previous operations of this subsection).

Once property becomes crime-derived property it remains crime-derived property even if it is disposed of, used to acquire other property or otherwise dealt with, unless it ceases under subsection (8) to be crime-derived property.

Property owned by 2 or more people, whether jointly or as tenants in common, is crime-derived if any part of the share of any of the owners is crime-derived, whether or not any of the owners is an innocent party in relation to the share or part-share that is crime-derived.

If:

a person owns crime-derived property but is divested of the property in such a way that it ceases under subsection (8) to be crime-derived property; and

the person acquires the property again;

the property becomes crime-derived property again.

For deciding whether property is crime-derived, the proceeds of a sale or other dealing do not lose their identity as those proceeds only as a result of being credited to an account.

Crime-derived property ceases to be crime-derived property:

when it is acquired by an innocent party; or

if it is restrained property – when the restraining order is set aside under section 64; or

if it has been forfeited – when a court orders its release under section 121; or

if it is money that has been forfeited or money that is the proceeds of the sale of forfeited property – when it is paid to the

Public Trustee in accordance with section 148 or to the

Territory; or

if it has been forfeited, but is not money – when the property is disposed of in accordance with the Regulations; or

in any other circumstances prescribed by the Regulations.

Part 3 Investigation and search

Division 1 Preliminary inquiries