Criminal Assets Confiscation Act 2005

This Act may be cited as the Criminal Assets Confiscation

Act 2005.

In this Act, unless the contrary intention appears—

abscond—see section 4;

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 or other safe custody facility;

Administrator means the person appointed as the

Administrator under section 190;

agent includes, if the agent is a corporation, the officers and agents of the corporation;

Australia, when used in a geographical sense, includes the external Territories;

authorised officer means—

the DPP; or

a police officer; or

a member, officer or employee of an enforcement agency who is authorised in writing by the head of that agency for the purposes of this

Act;

benefit includes a service or advantage;

charged—a person is charged with an offence if an information or complaint is laid against the person for the offence whether or not—

a summons to require the attendance of the person to answer the information or complaint has been issued; or

a warrant for the arrest of the person has been issued;

compensation order means an order made under section 61;

confiscation order means a forfeiture order, a pecuniary penalty order or a literary proceeds order;

controlled property means property subject to an order under section 39;

convicted—see section 5;

conviction day—see section 5;

conviction offence, in relation to a prescribed drug offender, has the meaning given in section 6A;

corresponding law means a law declared to be a corresponding law under section 12;

court means—

the Supreme Court; or

the District Court; or

subject to section 14, the Magistrates Court;

data includes data in any form in which it may be stored or processed in a computer (including a computer program or part of a computer program);

data storage device means any article or material (for example, a disk) from which information is capable of being reproduced, with or without the aid of any other article or device;

deal with—dealing with a person's property includes—

if a debt is owed to the person—making a payment to a person in reduction of the amount of the debt; and

removing the property from the State; and

receiving or making a gift of the property; and

if the property is covered by a restraining order—engaging in a transaction that has the direct or indirect effect of reducing the value of the person's interest in the property;

dependant of a person means—

a spouse or domestic partner of the person; or

a child of the person who depends on the person for support;

or

a member of the person's household who depends on the person for support;

derived—a person derives proceeds, a benefit or literary proceeds if —

the person; or

another person at the request or direction of the first person, derives the proceeds, benefit or literary proceeds, whether directly or indirectly;

director, in relation to a financial institution or a corporation, means—

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 constituent member of the body corporate; and

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

any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act, other than when those directors only do so—

in the proper performance of the functions attaching to the person's professional capacity; or

in their business relationship with the person;

document includes—

any paper or other material on which there is writing;

and

any paper or other material on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; and

any article or material from which sounds, images or writings are capable of being reproduced with or without the aid of any other article or device; and

any map, plan, drawing, graph or photograph;

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

DPP means the Director of Public Prosecutions and includes a person acting in the position of Director of Public

Prosecutions;

drug means a substance that is a controlled drug within the meaning of the Controlled

Substances Act 1984;

effective control—see section 6;

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

enforcement agency means—

the DPP; or

an agency prescribed by regulation as an enforcement agency for the purposes of this Act or specified provisions of this Act;

examination notice means a notice given under section 133;

examination order means an order under section 131 or

132 that is in force;

exclusion order means an order under section 58 or

59;

executive officer in relation to a financial institution or a corporation, means any person, by whatever name called and whether or not the person is a director of the institution or corporation, who is concerned, or takes part, in the management of the institution or corporation;

financial institution means—

an ADI; or

a friendly society; or

an institution of a kind declared by regulation to be a financial institution;

foreign forfeiture order has the same meaning as in the Mutual Assistance Act;

foreign offence includes an offence against international law;

foreign pecuniary penalty order has the same meaning as in the Mutual Assistance Act;

foreign restraining order has the same meaning as in the Mutual Assistance Act;

forfeiture order means an order under section 47 that is in force;

freezing order means an order under section 17 that is in force;

instrument—see section 7;

instrument substitution declaration means a declaration under section 48;

interest, in relation to property or a thing, means—

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

or

a right, power or privilege in connection with the property or thing, whether present or future and whether vested or contingent;

legal assistance costs means the costs of providing legal assistance to an assisted person under the

Legal Services Commission

Act 1977 (see section 5(2) of that Act);

literary proceeds—see section 110;

literary proceeds amount—see section 113;

literary proceeds order means an order under section 111 that is in force;

monitoring order means an order under section 165 that is in force;

Mutual Assistance Act means the

Mutual Assistance in Criminal Matters Act

1987 of the Commonwealth as in force from time to time;

officer, in relation to a financial institution or a corporation, means a director, secretary, executive officer or employee;

pecuniary penalty order means an order under section 95 that is in force;

penalty amount—see section 99;

premises means a building, structure or place (whether built on or not and whether enclosed or unenclosed) and includes an aircraft, vessel or vehicle;

prescribed drug offender—see section 6A;

proceeds—see section 7;

production order means an order under section 150 that is in force;

property means real or personal property (tangible or intangible) including—

a chose in action; and

an interest in property;

property-tracking document—see section 149;

protected property of a person means property owned by or subject to the effective control of the person that is of a class declared by regulation for the purposes of this definition;

quashed—see section 8;

reciprocating State means a State or Territory in which a corresponding law is in force;

recognised Australian forfeiture order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

recognised Australian pecuniary penalty order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

recognised Australian restraining order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

registrable property means property the title to which is passed by registration on a register kept pursuant to a provision of a law of the State or any other law;

registration authority means an authority responsible for administering a law providing for registration of title to, or charges over, property of a particular kind;

related offence—an offence is related to another offence if the physical elements of the 2 offences are substantially the same acts or omissions;

responsible custodian, in relation to property or other material seized under this Act, means—

if the property or other material is seized by the DPP—the

DPP; or

in any other case—the head of the enforcement agency of the authorised officer who seized the property or other material;

restraining order means an order under section 24 that is in force;

search warrant means a warrant issued under section 172 that is in force;

serious and organised crime has the same meaning as in the Australian Crime Commission (South Australia) Act 2004;

serious offence means—

an indictable offence; or

an offence against—

section 68(3) of the Criminal

Law Consolidation Act 1935; or

an offence against section 52, 53, 72 or 74 of the

Fisheries Management

Act 2007; or

section 99 of the Liquor

Licensing Act 1997; or

a provision of the Lottery and

Gaming Act 1936; or

section 47, 48, 48A, 51 or 60 of the National Parks and Wildlife Act 1972;

or

section 28(1)(a) or 41 of the Summary Offences Act 1953;

or

a foreign offence declared by the regulations to be within the ambit of this definition;

spouse—a person is the spouse of another if they are legally married;

sufficient consideration, in relation to an acquisition or disposal of property, means consideration that is sufficient and that reflects the value of the property, having regard solely to commercial considerations;

suspect, in relation to a restraining order or a confiscation order, means a person who—

has been convicted of; or

has been charged with, or is proposed to be charged with;

or

if the order is a restraining order—is suspected of having committed; or

if the order is a confiscation order—committed, the offence or offences to which the order relates;

tainted property means—

proceeds of a serious offence; or

an instrument of a serious offence or property subject to an instrument substitution declaration; or

property owned by, or subject to the effective control of, a prescribed drug offender on the conviction day for the conviction offence (other than protected property of the prescribed drug offender);

or

property owned by, or subject to the effective control of, a person who has been charged with, or is proposed to be charged with, an offence where the person would, if convicted of the offence, become a prescribed drug offender (other than protected property of the person);

unlawful activity means an unlawful act or omission—

that constitutes a serious offence; or

that would, if committed in this State, constitute a serious offence;

vehicle includes an aircraft or vessel;

Victims of Crime Fund means the fund of that name continued in existence under the Victims of Crime

Act 2001.

A reference in this Act to an indictable offence includes an indictable offence of a kind that is required to be prosecuted, and dealt with by the Magistrates Court, as a summary offence under a provision of any Act.

For the purposes of this Act, a person is taken to

abscond in connection with an offence if—

an information or complaint is laid alleging the person committed the offence; and

a warrant for the person's arrest is issued in relation to that information or complaint; and

at the end of the period of 6 months commencing on the day on which the warrant is issued either—

the person—

cannot be found; or

is, for any other reason, not amenable to justice and, if the person is in a jurisdiction outside Australia, extradition proceedings are not on foot in that jurisdiction; or

—

the person is, because he or she is in a jurisdiction outside

Australia, not amenable to justice; and

extradition proceedings are on foot in that jurisdiction, and subsequently those proceedings terminate without an order for the person's extradition being made.

For the purposes of subsection (1), extradition proceedings are not taken to be on foot in a jurisdiction unless the person is in custody, or is on bail, in that jurisdiction.

For the purposes of this Act, a person is taken to be

convicted of an offence if—

the person is convicted, whether summarily or on indictment, of the offence (and in such a case the conviction day for the purposes of this Act is the day on which the person was convicted, whether or not the court passed sentence on that day); or

the person is charged with, and found guilty of, the offence but is discharged without conviction (and in such a case the conviction day for the purposes of this Act is the day on which the person was discharged without conviction); or

a court, with the consent of the person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another offence (and in such a case the conviction day for the purposes of this Act is the day on which the court took the offence into account in passing the sentence); or

the person absconds in connection with the offence (and in such a case the conviction day for the purposes of this Act is the day on which the person is taken to have absconded); or

a court has, under Part 8A Division 2 of the

Criminal Law Consolidation

Act 1935, recorded findings that—

the person is mentally incompetent to commit the offence;

and

the objective elements of the offence are established, (and in such a case the conviction day for the purposes of this Act is the day on which the court recorded those findings or, if those findings were recorded on different days, the later of the days);

or

a court has, under Part 8A Division 3 of the

Criminal Law Consolidation

Act 1935, recorded findings that—

the person is mentally unfit to stand trial on a charge of the offence; and

the objective elements of the offence are established, (and in such a case the conviction day for the purposes of this Act is the day on which the court recorded those findings or, if those findings were recorded on different days, the later of the days).

If subsection (1)(d),

(e) or

(f) applies to a person, the person is taken—

to have committed the offence; and

to have been convicted of the offence before an appropriate court.

For the purposes of this Act, the following principles apply when determining whether property is subject to the effective control of a person:

property may be subject to the effective control of a person whether or not the person has an interest in the property;

property that is held on trust for the ultimate benefit of a person is taken to be subject to the effective control of the person;

if a person is one of 2 or more beneficiaries under a discretionary trust, the following undivided proportion of the trust property is taken to be subject to the effective control of the person:

if property is initially owned by a person and, within 6 years (whether before or after) of—

an application for a restraining order or a confiscation order being made; or

the person becoming a prescribed drug offender, is disposed of to another person without sufficient consideration, then the property is taken still to be subject to the effective control of the first person;

property may be subject to the effective control of a person even if one or more other persons have joint control of the property.

In determining whether or not property is subject to the effective control of a person, regard may be had to—

shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property;

and

a trust that has a relationship to the property; and

family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (a) or trusts of the kind referred to in paragraph (b), and other persons.

For the purposes of this Act, a person is a prescribed drug offender if the person is convicted of a serious drug offence (the conviction offence) committed after the commencement of this section and—

the conviction offence is a commercial drug offence;

or

the person has at least 2 other convictions for prescribed drug offences and those offences and the conviction offence were all committed on separate occasions within a period of 10 years, not including any period during which the person was in government custody.

A conviction may be taken into account for the purposes of subsection (1)(b)—

whether the offence to which the conviction relates was committed before or after the commencement of this section; and

whether or not the offence to which the conviction relates has previously been taken into account for the purposes of any proceeding under this Act; and

whether or not the conviction occurs simultaneously with, or in the same proceedings as, the conviction for the conviction offence.

In this section—

commercial drug offence means—

an offence against section 32(1) or (2), section 33(1) or (2), section 33A(1) or (2), section 33B(1) or (2) or section 33C(1) or (2) of the Controlled Substances

Act 1984; or

an offence against Part 5 Division 3 of the

Controlled Substances

Act 1984 involving a commercial quantity or large commercial quantity of a controlled drug;

detainee means a person who—

is detained in a training centre within the meaning of the

Young Offenders

Act 1993; or

is detained as a result of being declared liable to supervision under Part 8A of the Criminal Law

Consolidation Act 1935;

external serious drug offence means an offence against a law or former law of the Commonwealth, of another State or of a

Territory of a kind prescribed by regulation;

government custody means—

custody as a prisoner or detainee; or

custody under a home detention order under Part 3

Division 7 Subdivision 1 of the Sentencing Act 2017; or

custody under a law of another jurisdiction in the nature of custody referred to in paragraph (a) or (ab);

prescribed drug offence means—

a serious drug offence; or

an offence against a former law of the State of a kind prescribed by regulation; or

an external serious drug offence;

serious drug offence means an offence against

Part 5 Division 2 or 3 of the

Controlled Substances

Act 1984 that is an indictable offence.

For the purposes of this Act, the following rules apply when determining whether property is proceeds or an instrument of an offence:

property is proceeds of an offence if it is—

wholly derived or realised, whether directly or indirectly, from the commission of the offence; or

partly derived or realised, whether directly or indirectly, from the commission of the offence, whether the property is situated within or outside the

State;

property is an instrument of an offence if it is—

used in, or in connection with, the commission of an offence;

or

intended to be used in, or in connection with, the commission of an offence, whether the property is situated within or outside the

State;

property becomes proceeds of an offence or an instrument of an offence (as the case requires) if it is—

wholly or partly derived or realised from the disposal of, or other dealing with, proceeds of the offence or an instrument of the offence;

or

wholly or partly acquired using proceeds of the offence or an instrument of the offence, including as a result of a previous application of this section;

property remains proceeds of an offence or an instrument of an offence even if it is—

credited to an account; or

disposed of or otherwise dealt with;

property can be proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence.

Subject to this section, property only ceases to be proceeds of an offence or an instrument of an offence if—

it is acquired by a third party for sufficient consideration without the third party knowing, and in circumstances that would not arouse a reasonable suspicion, that the property was proceeds of an offence or an instrument of an offence (as the case requires); or

it vests in a person from the distribution of the estate of a deceased person, having been previously vested in a person from the distribution of the estate of another deceased person while the property was still proceeds of an offence or an instrument of an offence (as the case requires); or

it vests in a person from the distribution of the estate of a deceased person in accordance with the forfeiture rule or a forfeiture modification order under the Forfeiture

Act 2024 or otherwise vests in a person pursuant to an order of the Supreme Court under that Act; or

it has been distributed in accordance with—

an order in proceedings under the Family Law Act 1975 of the Commonwealth with respect to the property of the parties to a marriage or de facto relationship, or either of them; or

a financial agreement or Part VIIIAB financial agreement within the meaning of that Act, and 6 years have elapsed since that distribution; or

it has been distributed in accordance with an order in proceedings under the Domestic Partners Property

Act 1996 and 6 years have elapsed since that distribution; or

it is acquired by a person as payment for reasonable legal expenses incurred in connection with an application under this Act or defending a criminal charge; or

a forfeiture order in respect of the property is satisfied;

or

a recognised Australian restraining order or a recognised

Australian forfeiture order is satisfied in respect of the property;

or

it is otherwise sold or disposed of under this Act;

or

in any other circumstances specified in the regulations.

If—

a person once owned property that was proceeds of an offence or an instrument of an offence; and

the person ceased to be the owner of the property and (at that time or a later time) the property stopped being proceeds of an offence or an instrument of the offence under subsection (2) (other than under subsection (2)(f)); and

the person acquires the property again, then the property becomes proceeds of an offence or an instrument of the offence again (as the case requires).

Subsection (2)(c) does not apply if, despite the distribution referred to in that paragraph, the property is still subject to the effective control of a person who—

has been convicted of; or

has been charged with, or who is proposed to be charged with;

or

has committed, or is suspected of having committed, the offence in question.

For the purposes of this Act, a person's conviction of an offence is taken to be quashed if—

if the person is taken to have been convicted of the offence because of section 5(1)(a)—the conviction is quashed or set aside; or

if the person is taken to have been convicted of the offence because of section 5(1)(b)—the finding of guilt is quashed or set aside; or

if the person is taken to have been convicted of the offence because of section 5(1)(c)—either of the following events occur:

the person's conviction of the other offence referred to in that paragraph is quashed or set aside;

the decision of the court to take the offence into account in passing sentence for that other offence is quashed or set aside;

or

if the person is taken to have been convicted of the offence because of section 5(1)(d)—after the person is brought before a court in respect of the offence, the person is discharged in respect of the offence or a conviction of the person for the offence is quashed or set aside; or

if the person is taken to have been convicted of the offence because of section 5(1)(e) or

5(1)(f)—the finding that the objective elements of the serious offence have been established is set aside or reversed.

Despite any provision of this Act, if an unexplained wealth order has been made against a person, any property or benefits that were taken into account as wealth of the person that was not lawfully acquired for the purposes of that order may not be made the subject of proceedings under this Act for a restraining order or a confiscation order (provided that the person is the suspect for the purposes of those proceedings).

In this section—

unexplained wealth order means an unexplained wealth order under the Serious and

Organised Crime (Unexplained Wealth) Act 2009 or a corresponding unexplained wealth order within the meaning of that

Act.

This Act binds the Crown in right of the State and also, so far as the legislative power of the State extends, the Crown in all its other capacities, but not so as to impose any criminal liability on the

Crown.

Subject to any express provision to the contrary, this Act applies to—

property within or outside the State; and

a serious offence committed at any time whether the offence occurred—

in the case of a serious offence that is a foreign offence—before or after the foreign offence was declared to be a serious offence under this Act; and

in any case—before or after the commencement of this

Act, and whether or not a person is convicted of the offence;

and

a person's conviction of a serious offence (whether the conviction occurred before or after the commencement of this Act).

This Act is in addition to, and does not limit or derogate from, the provisions of any other Act.