Proceeds of Crime Act 1991 (ACT)
Proceeds of Crime Act 1991 No 103 (repealed)
Republication No 5
Effective: 15 August 2003
Republication date: 15 August 2003
As repealed by A2003-8
Unauthorised version prepared by the ACT Parliamentary Counsel’s Office
About this republication
The republished law
This is a republication of the Proceeds of Crime Act 1991 (repealed) (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)). It also includes any commencement, amendment, repeal or expiry affecting the republished law to 15 August 2003.
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.
When preparing the authorised version of this republication amendments were not made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced or is affected by an uncommenced amendment, the symbol U appears immediately before the provision heading. The text of the uncommenced provision or amendment appears only in the last endnote.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see Legislation Act 2001, section 95.
Penalties
The value of a penalty unit for an offence against this republished law at the republication date is—
(a)if the person charged is an individual—$100; or
(b)if the person charged is a corporation—$500.
Proceeds of Crime Act 1991 (repealed)
Contents
Page
Part 1Preliminary
Short title 2
Principal objects 2
Interpretation for Act 2
Meaning of conviction etc of offence 11
Meaning of absconding 12
Meaning of serious offence 13
Related offences 15
Meaning of dealing with property 15
Effective control of property 15
Appropriate court in relation to indictable offence 16
Application of Act 16
Part 2Confiscation
Division 2.1 Application for confiscation order
Application for confiscation order 17
Notice of application 18
Amendment of application 19
Making of confiscation order where person has absconded 20
Procedure on application 21
Division 2.2 Forfeiture orders
Forfeiture orders 22
Effects of forfeiture order 24
Effect of forfeiture order on third parties 26
Discharge of forfeiture order on appeal or by quashing of conviction 28
Division 2.3 Pecuniary penalty orders
Application of div 2.3 29
Special provisions in relation to serious offences 30
Pecuniary penalty orders 30
Assessment of pecuniary penalty 32
Court may lift corporate veil etc 37
Division 2.4 Forfeiture in case of serious offence
Forfeiture of all restrained property if person convicted of serious offence 38
Recovery of property to which s 28 applies 41
Effect of quashing of conviction 44
Division 2.5 Miscellaneous
Person with interest in forfeited property may buy back the interest 45
Buying out other interests in forfeited property 46
Part 3Confiscated assets trust fund
Establishment of trust fund 48
33A Bank account 48
Payments into trust fund 48
Payments out of trust fund 49
Application of distributable funds 50
Determinations by public trustee about suspended and distributable funds 50
Part 4Control of property liable to confiscation
Division 4.1 Search powers
Powers to search for, and seize, tainted property 52
Search warrants in relation to tainted property 53
Search warrants may be granted by telephone 56
Searches in emergencies 58
Responsibility for seized property 59
Return of seized property 60
Issue of search warrants by ACT courts in relation to interstate indictable offences 63
Division 4.2 Restraining orders
Restraining orders 64
Grounds for making restraining order 67
Notice of application for restraining order 70
Extension of certain restraining orders 71
Persons who may appear and adduce evidence 71
Notice of restraining orders 72
Court may make further orders 72
Order for taxation of legal expenses to be met out of restrained property 78
Public trustee to discharge pecuniary penalty 79
Charge on property subject to restraining order 83
Registration of restraining orders 85
Contravention of restraining orders 86
Duties of public trustee 86
Protection of public trustee from personal liability in certain cases 87
Costs etc payable to public trustee 89
Court may revoke restraining orders 89
When restraining order ceases to be in force 90
Notice of applications under div 4.2 94
Part 5Information gathering powers
Division 5.1 Production orders
Meaning of indictable offence in pt 5 95
Production orders 95
Variation of production order 99
Failure to comply with production order 99
Division 5.2 Search powers
Powers to search for, and seize, documents relevant to locating etc property 100
Search warrant for location etc of property 101
Division 5.3 Monitoring orders
Monitoring orders 104
Existence and operation of monitoring order not to be disclosed 106
Division 5.4 Obligations of financial institutions
Definitions for div 5.4 107
Retention of records by financial institutions 109
Register of original documents 110
Part 6Offences
Division 6.1 Money laundering
Money laundering 111
Possession etc of property suspected of being proceeds of crime 111
Division 6.2 Organised fraud
Organised fraud 112
Division 6.3 Miscellaneous
Conduct by directors, servants or agents 113
Part 7Interstate orders and warrants
Division 7.1 Interstate restraining orders
Registration of interstate restraining orders 115
Effect of registration 115
Duration of registration 116
Cancellation of registration 116
Charge on property subject to registered interstate restraining order 116
Powers of public trustee in relation to interstate restraining orders 118
Division 7.2 Interstate forfeiture orders
Registration of interstate forfeiture orders 119
Effect of registration 119
Duration of registration 120
Cancellation of registration 120
Division 7.3 Miscellaneous
Interim registration of fax copies 120
Part 8Miscellaneous
Dealings with forfeited property 122
Standard of proof 122
Appeals 122
Costs 123
Indemnification of public trustee 124
Operation of other laws not affected 124
Approved forms 125
Regulation-making power 125
Endnotes
About the endnotes 126
Abbreviation key 126
Legislation history 127
Amendment history 128
Earlier republications 130
Proceeds of Crime Act 1991 (repealed)
An Act to provide for confiscation of the proceeds of crime, and for other related purposes
Part 1Preliminary
Short title
This Act may be cited as the Proceeds of Crime Act 1991.
Principal objects
The principal objects of this Act are—
(a)to deprive persons of the proceeds of, and benefits derived from, the commission of offences against the laws of the Territory; and
(b)to provide for the forfeiture of property used in or in connection with the commission of such offences; and
(c)to enable law enforcement authorities effectively to trace such proceeds, benefits and property; and
(d)to provide for the enforcement in the ACT of forfeiture orders, pecuniary penalty orders and restraining orders made in respect of offences against laws of the States and other Territories.
Interpretation for Act
In this Act:
NoteA definition applies except so far as the contrary intention appears (see Legislation Act 2001, s 155).
account means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for—
(a)a fixed term deposit; or
(b)a safety deposit box.
agent includes, if the agent is a corporation, the officers and agents of the corporation.
appropriate officer means the DPP or a person in a class of persons declared by the regulations to be within this definition.
approved means approved by the Minister in writing for the provision in which the term occurs.
Bankruptcy Act means the Bankruptcy Act 1966 (Cwlth).
benefit includes service or advantage.
chief police officer means the police officer who is responsible for the day-to-day administration and control of police services in the ACT.
confiscation order means a forfeiture order or pecuniary penalty order.
corresponding law means a law of a State or another Territory that is declared by the regulations to be a law that corresponds to this Act.
Crimes Act means the Crimes Act 1900.
Customs Act means the Customs Act 1901 (Cwlth).
director, in relation to a financial institution or a corporation, means—
(a)if the institution or corporation is a body corporate incorporated for a public purpose by a law of the Territory or a State or another Territory—a constituent member of the body corporate; and
(b)any person occupying or acting in the position of director of the institution or corporation, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and
(c)any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act.
distributable funds means money in the trust fund that is—
(a)identified as distributable funds in accordance with the regulations (other than such money as is identified by the public trustee under section 37 (2) as suspended funds); or
(b)identified by the public trustee under section 37 (3) as distributable funds.
DPP means the director of public prosecutions.
encumbrance, in relation to property, includes any interest, mortgage, charge, right, claim or demand in respect of the property.
equitable sharing program means an arrangement under which either or both of the following happen:
(a)the Territory shares with the Commonwealth, a State or another Territory a proportion of any proceeds of any unlawful activity recovered under a Territory law;
(b)the Commonwealth, a State or another Territory shares with the Australian Capital Territory any proceeds resulting from a breach of the criminal law of the Commonwealth, that State or that Territory.
executive officer, in relation to a financial institution or a corporation, means any person, by whatever name called and whether or not he or she is a director of the institution or corporation, who is concerned, or takes part, in the management of the institution or corporation.
fax copy means a copy obtained by fax.
financial institution means—
(a) an authorised deposit-taking institution; or
(b)a body corporate that is, or that, if it had been incorporated in Australia, would be, a financial corporation within the meaning of the Constitution of the Commonwealth, paragraph 51 (xx); or
(c)a person who permits other persons to deposit money with him or her for use by those other persons in connection with gaming or betting.
fixed term deposit means an interest bearing deposit lodged for a fixed period.
forfeiture order means an order under section 19 (1).
government business enterprise means a prescribed government business enterprise.
indictable offence means an offence against a Territory law that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
interest, in relation to property, means—
(a)a legal or equitable estate or interest in the property; or
(b)a right, power or privilege in connection with the property;
whether present or future and whether vested or contingent.
interstate 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.
interstate indictable offence means an offence against a law of a State or another Territory, being an offence in relation to which an interstate forfeiture order or an interstate pecuniary penalty order may be made under a corresponding law of that State or Territory.
interstate 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.
interstate 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.
narcotic substance means—
(a)a narcotic substance within the meaning of the Customs Act; or
(b)a substance declared by the regulations to be a substance to which this definition applies.
officer means a director, secretary, executive officer or employee.
ordinary indictable offence means an indictable offence that is not a serious offence.
pecuniary penalty order means an order under section 25 (1).
penalty amount, in relation to a pecuniary penalty order against a person, means the amount that the person is liable to pay the Territory under the order.
petition means a petition under the Bankruptcy Act.
premises includes—
(a)a building or other structure; and
(b)an aircraft, vehicle or vessel; and
(c)a place, whether enclosed or built on or not.
prescribed officer means a senior executive service officer of the government service.
prescribed time, in relation to a warrant issued under division 4.1 in relation to property, means—
(a)where an information is laid in respect of the relevant offence either before the warrant is issued or within 48 hours after the warrant is issued—the day that is 28 days after the date of the issue of the warrant; or
(b)in any other case—the time that is 48 hours after the time of the issue of the warrant.
proceeds, in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence.
proceeds of confiscated assets means—
(a)the remainder of the proceeds referred to in the Crimes Act, section 250 (c); or
(b)the remainder of the money referred to in section 20 (3) (b) (i); or
(c)the remainder of the proceeds referred to in section 20 (3) (b) (ii); or
(d)the amount referred to in section 25 (8); or
(e)the remainder of the money referred to in section 28 (4) (b) (i); or
(f)the remainder of the proceeds referred to in section 28 (4) (b) (ii); or
(g)an amount referred to in section 31 (1) or (2); or
(h)an amount referred to in section 32 (f); or
(i)the remainder of the money referred to in section 53 (6) (a); or
(j)the remainder of the proceeds referred to in section 53 (6) (b).
proceeds of crime means—
(a)proceeds of an indictable offence; or
(b)any property that is derived or realised, directly or indirectly, by any person from acts or omissions that—
(i)occurred outside the ACT; and
(ii)would, if they had occurred in the ACT, have constituted an indictable offence.
production order means an order under section 64.
property means real or personal property of every description, whether situated in the ACT or elsewhere and whether tangible or intangible and includes an interest in any such real or personal property.
property-tracking document, in relation to an offence, means—
(a)a document relevant to—
(i)identifying, locating or quantifying property of a person who committed the offence; or
(ii)identifying or locating any document necessary for the transfer of property of a person who committed the offence; or
(b)a document relevant to—
(i)identifying, locating or quantifying tainted property in relation to the offence; or
(ii)identifying or locating any document necessary for the transfer of tainted property in relation to the offence.
registrable property means property title to which is passed by registration on a register kept under a provision of any law of the Territory, the Commonwealth, a State or another Territory.
relevant application period, in relation to a person’s conviction of an indictable offence, means the period of 6 months after—
(a)where the person is to be taken to have been convicted of the offence by reason of section 5 (1) (a)—the day on which the person was convicted of the offence; or
(b)where the person is to be taken to have been convicted of the offence by reason of section 5 (1) (b)—the day on which the person was discharged without conviction; or
(c)where the person is to be taken to have been convicted of the offence by reason of section 5 (1) (c)—the day on which the court took the offence into account in passing sentence for the other offence referred to in that paragraph; or
(d)where the person is to be taken to have been convicted of the offence by reason of section 5 (1) (d)—the day on which the person is to be taken to have absconded in connection with the offence.
relevant offence, in relation to tainted property, means an offence by reason of the commission of which the property is tainted property.
restraining order means an order under section 45 (2).
suspended funds means money in the trust fund that is—
(a)identified as suspended funds in accordance with the regulations (other than such money as is identified by the public trustee under section 37 (3) as distributable funds); or
(b)identified by the public trustee under section 37 (2) as suspended funds.
tainted property, in relation to an offence, means—
(a)property used in, or in connection with, the commission of the offence; or
(b)proceeds of the offence;
and when used without reference to a particular offence means tainted property in relation to an indictable offence.
trust fund means the confiscated assets trust fund established by section 33.
unlawful activity means an act or omission that constitutes an offence against a law in force in the ACT, the Commonwealth, a State, another Territory or a foreign country.
A reference in this Act to a person being charged with an offence is a reference to an information being laid against the person for the offence whether or not—
(a)a summons to require the attendance of the person to answer the information has been issued; or
(b)a warrant for the apprehension of the person has been issued.
A reference in this Act to a benefit derived by a person includes a reference to—
(a)a benefit derived, directly or indirectly, by the person; and
(b)a benefit derived, directly or indirectly, by another person at the request or direction of the first person.
A reference in this Act to the property of a person includes a reference to property in respect of which the person has the beneficial interest.
A reference in this Act to a criminal offence is a reference to an offence against a Territory law.
Without prejudice to its effect under subsection (5), this Act has effect as if a reference in this Act to a criminal offence included a reference to an offence against a law of the Commonwealth, a State or another Territory.
A reference in this Act to acquiring property, or an interest in property, for sufficient consideration is a reference to acquiring the property or the interest for a consideration that is sufficient and that, having regard solely to commercial considerations, reflects the value of the property or the interest.
For this Act, a person shall not be regarded as a director within the meaning of subsection (1), definition of director, paragraph (c) by reason only that the directors act on advice given by that person in the proper performance of the functions attaching to his or her professional capacity or to his or her business relationship with the directors of the financial institution or corporation, as the case may be.
Meaning of conviction etc of offence
For this Act, a person shall be taken to be convicted of an offence if—
(a)the person is convicted, whether summarily or on indictment, of the offence; or
(b)the person is charged with, and found guilty of, the offence but is discharged without conviction; or
(c)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; or
(d)the person absconds in connection with the offence.
For this Act, a person’s conviction of an offence shall be taken to be quashed—
(a)where the person is to be taken to have been convicted of the offence by reason of subsection (1) (a)—if the conviction is quashed or set aside; or
(b)where the person is to be taken to have been convicted of the offence by reason of subsection (1) (b)—if the finding of guilt is quashed or set aside; or
(c)where the person is to be taken to have been convicted of the offence by reason of subsection (1) (c)—if either of the following events occur:
(i)the person’s conviction of the other offence referred to in that paragraph is quashed or set aside;
(ii)the decision of the court to take the offence into account in passing sentence for that other offence is quashed or set aside; or
(d)where the person is to be taken to have been convicted of the offence by reason of subsection (1) (d)—if, 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.
For this Act, a person shall be taken to have been convicted of an offence in a particular State or another Territory if—
(a)where the person is to be taken to have been convicted of the offence by reason of subsection (1) (a)—the person was convicted of the offence in a court in that State or other Territory; or
(b)where the person is to be taken to have been convicted of the offence by reason of subsection (1) (b)—the person was discharged without conviction by a court in that State or other Territory; or
(c)where the person is to be taken to have been convicted of the offence by reason of subsection (1) (c)—the offence was taken into account by a court in that State or other Territory in passing sentence on the person for the other offence referred to in that paragraph; or
(d)where the person is to be taken to have been convicted of the offence by reason of subsection (1) (d)—the information alleging the commission of the offence by the person was laid in that State or other Territory.
A reference in this Act, in relation to a person’s conviction of an offence, to the commission of the offence is, where the person is to be taken to have been convicted of the offence by reason of subsection (1) (d), a reference to the alleged commission of the offence by the person.
Meaning of absconding
For this Act (other than section 17), a person shall be taken to abscond in connection with an offence only if—
(a)an information is laid alleging the commission of the offence by the person; and
(b)a warrant for the arrest of the person is issued in relation to that information; and
(c)1 of the following occurs:
(i)the person dies without the warrant being executed;
(ii)at the end of the period of 6 months commencing on the day on which the warrant is issued—
(A)the person cannot be found; or
(B)the person is, for any other reason, not amenable to justice and, if the person is outside the ACT, extradition proceedings are not on foot;
(iii)at the end of the period of 6 months commencing on the day on which the warrant is issued—
(A)the person is, by reason of being outside the ACT, not amenable to justice; and
(B)extradition proceedings are on foot;
and subsequently those proceedings terminate without an order for the person’s extradition being made.
Meaning of serious offence
In this Act:
serious offence means—
(a)a serious narcotics offence; or
(b)an organised fraud offence; or
(c)a money laundering offence in relation to the proceeds of a serious narcotics offence or an organised fraud offence;
and includes an ancillary offence in respect of an offence referred to in paragraph (a), (b) or (c).
In this section:
ancillary offence, in relation to an offence (the main offence), means—
(a)an offence of conspiring to commit the main offence; or
(b)an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the main offence; or
(c)an offence of receiving or assisting another person in order to enable the person to escape punishment for, or to dispose of the proceeds of, the main offence; or
(d)an offence of attempting to commit the main offence.
money laundering offence means an offence against section 74.
organised fraud offence means an offence against section 76.
possession includes possession for supply.
production includes growing and manufacture.
serious narcotics offence means an offence—
(a)constituted by the production, possession, supply, importation or export of a narcotic substance; and
(b)involving a quantity of the narcotic substance that is equal to or greater than the trafficable quantity applicable to the narcotic substance.
trafficable quantity, in relation to a narcotic substance, means—
(a)if paragraph (b) does not apply—a trafficable quantity of the substance within the meaning of the Customs Act; or
(b)if the law against which the offence is committed is not the Customs Act and that law includes references to trafficable quantity—a trafficable quantity of the substance within the meaning of that law.
Related offences
For this Act, 2 offences are related to one another if the elements of the 2 offences are substantially the same acts or omissions.
Meaning of dealing with property
For this Act, dealing with property of a person includes—
(a)if a debt is owed to that person—making a payment to any person in reduction of the amount of the debt; and
(b)removing the property from the ACT; and
(c)receiving or making a gift of the property.
Effective control of property
Property, or an interest in property, may be subject to the effective control of a person within the meaning of this Act whether or not the person has—
(a)a legal or equitable estate or interest in the property; or
(b)a right, power or privilege in connection with the property.
Without limiting the generality of any other provision of this Act, in determining—
(a)whether or not property, or an interest in property, is subject to the effective control of a person; or
(b)whether or not there are reasonable grounds to believe that property, or an interest in property, is subject to the effective control of a person;
regard may be had to—
(c)shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property; and
(d)a trust that has a relationship to the property; and
(e)family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (c) or trusts of the kind referred to in paragraph (d), and other persons.
Appropriate court in relation to indictable offence
Where a person is convicted of an offence before the Supreme Court, that court is the appropriate court in relation to the conviction.
Where a person is convicted of an offence before the Magistrates Court, that court and the Supreme Court are both appropriate courts in relation to the conviction.
Application of Act
Subject to subsection (2), parts 2 and 4 do not apply to a person’s conviction of an offence if the person was convicted of the offence before the commencement of this Act.
Subsection (1) does not apply in relation to interstate forfeiture orders, interstate pecuniary penalty orders or interstate restraining orders.
Subject to subsection (1) this Act applies to—
(a)an offence committed, or believed to have been committed, at any time (whether before or after the commencement of this Act); and
(b)a person’s conviction at any time of an offence (whether before or after the commencement of this Act).
Part 2Confiscation
Division 2.1 Application for confiscation order
Application for confiscation order
Where a person is convicted of an indictable offence, the DPP may, subject to subsections (2), (3) and (4), apply to an appropriate court for 1 or both of the following orders:
(a)a forfeiture order against property that is tainted property in respect of the offence;
(b)a pecuniary penalty order against the person in respect of benefits derived by the person from the commission of the offence.
The DPP is not empowered to make an application after the end of the relevant application period in relation to the conviction.
The DPP is not empowered to make an application to a court under subsection (1) for a forfeiture order against property in respect of a person’s conviction of an offence if—
(a)an application has previously been made—
(i)under that subsection; or
(ii)under another Territory law;
for forfeiture or condemnation of the property in respect of the offence; and
(b)the application has been finally determined on the merits;
except with the leave of the court.
The DPP is not empowered to make an application to a court under subsection (1) for a pecuniary penalty order against a person in respect of benefits derived by the person from the commission of an offence if—
(a)an application has previously been made—
(i)under that subsection; or
(ii)under another Territory law;
for a pecuniary penalty in respect of those benefits derived by the person from the commission of the offence; and
(b)the application has been finally determined on the merits;
except with the leave of the court.
The court shall not grant leave under subsection (3) or (4) unless satisfied that—
(a)the tainted property, or the benefit, to which the new application relates was identified only after the first application was determined; or
(b)necessary evidence became available only after the first application was determined; or
(c)the court is otherwise satisfied that it is in the interests of justice to grant the leave.
An application may be made under this section in relation to 1 or more indictable offence.
An application may be made under this section for a pecuniary penalty order in respect of an offence even if section 28 applies to the offence.
Notice of application
Where the DPP applies for a forfeiture order against property in respect of a person’s conviction of an offence—
(a)the DPP shall give written notice of the application to the person and to any other person the DPP has reason to believe may have an interest in the property; and
(b)the person, and any other person who claims an interest in the property, may appear and adduce evidence at the hearing of the application; and
(c)the court may, at any time before the final determination of the application, direct the DPP to give or publish notice of the application to a specified person or class of persons, in the manner and within the time that the court considers appropriate.
Where the DPP applies for a pecuniary penalty order against a person—
(a)the DPP shall give the person written notice of the application; and
(b)the person may appear and adduce evidence at the hearing of the application.
Amendment of application
Subject to subsection (2), where the DPP applies for a confiscation order, the court hearing the application may amend the application—
(a)on application by the DPP; or
(b)with the consent of the DPP.
The court shall not amend the application so as to—
(a)include additional property in an application for a forfeiture order; or
(b)include an additional benefit in an application for a pecuniary penalty order;
unless the court is satisfied that—
(c)the property or benefit was not reasonably capable of identification when the application was originally made; or
(d)necessary evidence became available only after the application was originally made.
Where—
(a)the DPP applies to amend an application for a forfeiture order; and
(b)the amendment would have the effect of including additional property in the application for the forfeiture order;
then—
(c)the DPP shall give written notice of the application to amend to any person who the DPP has reason to believe may have an interest in property to be included in the application for the forfeiture order; and
(d)any person who claims an interest in the property to be included in the application for the forfeiture order may appear and adduce evidence at the hearing of the application to amend.
Where—
(a)the DPP applies to amend an application for a pecuniary penalty order against a person; and
(b)the effect of the amendment would be to include an additional benefit in the application for the pecuniary penalty order;
the DPP shall give the person written notice of the application to amend.
Making of confiscation order where person has absconded
Where a person is, by reason of section 5 (1) (d), to be taken to have been convicted of an indictable offence, a court shall not make a confiscation order in reliance on the person’s conviction of the offence unless the court is satisfied, on the balance of probabilities, that the person has absconded and—
(a)the person has been committed for trial for the offence; or
(b)the court is satisfied, having regard to all the evidence before it, that a reasonable jury, properly instructed, could lawfully find the person guilty of the offence.
Procedure on application
Where an application is made to a court for a confiscation order in respect of a person’s conviction of an offence, the court may, in determining the application, have regard to the transcript of any proceeding against the person for the offence and to the evidence given in any such proceeding.
Where—
(a)an application is made for a confiscation order in respect of a person’s conviction of an offence; and
(b)the application is made to the court before which the person was convicted; and
(c)the court has not, when the application is made, passed sentence on the person for the offence;
the court may, if satisfied that it is reasonable to do so in all the circumstances, defer passing sentence until it has determined the application for the confiscation order.
Where—
(a)a person is to be taken to have been convicted of an offence by reason of section 5 (1) (c); and
(b)an application is made to a court for a confiscation order in respect of the conviction;
the reference in subsection (1) to a proceeding against the person for the offence includes a reference to a proceeding against the person for the other offence referred to in that paragraph.
Division 2.2 Forfeiture orders
Forfeiture orders
Where—
(a)the DPP applies to a court for an order under this section against property in respect of a person’s conviction of an offence; and
(b)the court is satisfied that the property is tainted property in respect of the offence;
the court may, if it considers it appropriate, order that the property, or such of the property as is specified by the court in the order, is forfeited to the Territory.
Where the court orders that property (other than money) is forfeited to the Territory, the court shall specify in the order the amount that it considers to be the value of the property at the time when the order is made.
In considering whether it is appropriate to make a forfeiture order in respect of particular property, the court may have regard to—
(a)any hardship that may reasonably be expected to be caused to any person by the operation of such an order; and
(b)the use that is ordinarily made, or was intended to be made, of the property.
In considering whether it is appropriate to make a forfeiture order under subsection (1) in respect of particular property, the court may also have regard to the gravity of the offence concerned.
A court that makes a forfeiture order against property may, if it is satisfied that—
(a)it would not be contrary to the public interest for a person’s interest in the property to be transferred to the person; and
(b)there is no other reason why the person’s interest in the property should not be transferred to that person;
by order—
(c)declare the nature, extent and value (as at the time when the order is made) of the interest; and
(d)declare that the forfeiture order may, to the extent to which it relates to the interest, be discharged as provided by section 31.
Where—
(a)the DPP applies for a forfeiture order against particular property in reliance on a person’s conviction of an offence; and
(b)evidence is given, at the hearing of the application, that the property was in the person’s possession at the time of, or immediately after, the commission of the offence;
then—
(c)if no evidence is given that tends to show that the property was not used in, or in connection with, the commission of the offence—the court shall presume that the property was used in, or in connection with, the commission of the offence; or
(d)in any other case—the court shall not make a forfeiture order against the property unless it is satisfied that the property was used in, or in connection with, the commission of the offence.
Where a court makes a forfeiture order, the court has power to give all directions that are necessary or convenient for giving effect to the order.
Without limiting subsection (7), where a court makes a forfeiture order against registrable property, the court may direct an officer of the court to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.
Effects of forfeiture order
Subject to subsection (2), where a court makes a forfeiture order against property, the property vests absolutely in the Territory.
Where a forfeiture order is made against registrable property—
(a)the property vests in equity in the Territory but does not vest in the Territory at law until the applicable registration requirements have been complied with; and
(b)the Territory is entitled to be registered as owner of the property; and
(c)the Minister has power, on behalf of the Territory, to do, or authorise the doing of, anything necessary or convenient to obtain the registration of the Territory as owner, including, without limiting the generality of this, the execution of any instrument required to be executed by a person transferring an interest in property of that kind.
Where a court makes a forfeiture order against property—
(a)the property shall not, except with the leave of the court and in accordance with any directions of the court, be disposed of, or otherwise dealt with, by or on behalf of the Territory, before the relevant time; and
(b)if, at the relevant time, the order has not been discharged, then, subject to any direction under subsection (4), the public trustee shall, as soon as practicable after the relevant time—
(i)if the property is money—after paying the public trustee’s remuneration and other costs, charges and expenses of the kind referred to in section 59 payable to or incurred by it in connection with the restraining order, pay the remainder of the money to the trust fund as required by section 34; and
(ii)if the property is not money—sell or otherwise dispose of the property and, after paying the public trustee’s remuneration and other costs, charges and expenses of the kind referred to in section 59 payable to or incurred by it in connection with the restraining order or the sale or disposition, pay the remainder of those proceeds to the trust fund as required by section 34.
Where a court makes a forfeiture order against property, the Minister, or a prescribed officer authorised by the Minister for this subsection, may, at or after the relevant time but before the property is dealt with under subsection (3) (b), direct that the property be disposed of, or otherwise dealt with, as specified in the direction.
Without limiting subsection (4), the directions that may be given under that subsection include a direction that property is to be disposed of in accordance with the provisions of a law specified in the direction.
A reference in this section to the appeal period in relation to a person’s conviction of an offence is—
(a)in a case where the person is to be taken to have been convicted of the offence by reason of section 5 (1) (b)—a reference to the appeal period in relation to the finding of the person guilty of the offence; and
(b)in a case where the person is to be taken to have been convicted of the offence by reason of section 5 (1) (c)—a reference to the appeal period in relation to the person’s conviction of the other offence referred to in that paragraph.
In this section:
appeal period, in relation to a decision of a court or a finding, means the period ending—
(a)if the period provided for the lodging of an appeal against the decision or finding has ended without such an appeal having been lodged—at the end of that period; or
(b)if an appeal against the decision or finding has been lodged—when the appeal lapses or is finally determined.
relevant time, in relation to a forfeiture order made in reliance on a person’s conviction of an offence, means—
(a)the end of the appeal period in relation to the making of the forfeiture order; or
(b)the end of the appeal period in relation to the person’s conviction;
whichever is the later.
Effect of forfeiture order on third parties
Where an application is made for a forfeiture order against particular property, a person who claims an interest in the property may apply, before the forfeiture order is made, to the court for an order under subsection (6).
Subject to subsections (3) and (7), where a court makes a forfeiture order against property, a person who claims an interest in the property may apply to the court for an order under subsection (6).
A person who—
(a)was given notice of the application for the forfeiture order; or
(b)appeared at the hearing of the application;
shall not make an application to a court under subsection (2) except with the leave of the court.
The court may grant the person leave to apply if the court is satisfied that there are special grounds for granting the leave.
Without limiting subsection (4), the court may grant a person leave to apply if the court is satisfied that—
(a)the person, for a good reason, did not attend the hearing of the application for the forfeiture order although the person had notice of the application; or
(b)particular evidence proposed to be adduced by the person in connection with the application under subsection (2) was not available to the person at the time of the hearing of the application for the forfeiture order.
If a person applies to a court for an order under this subsection in respect of the applicant’s interest in property and the court is satisfied that—
(a)the applicant was not, in any way, involved in the commission of an offence in respect of which forfeiture of the property is sought, or the forfeiture order against the property was made, as the case requires; and
(b)if the applicant acquired the interest at the time of or after the commission of such an offence—the applicant acquired the interest—
(i)for sufficient consideration; and
(ii)without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time of the acquisition, tainted property;
the court shall make an order—
(c)declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest; and
(d)either—
(i)if the interest is still vested in the Territory—directing the Territory to transfer the interest to the applicant; or
(ii)declaring that the Territory is liable to pay to the applicant an amount equal to the value declared under paragraph (c).
Subject to subsection (8), an application under subsection (2) shall be made before the end of the period of 6 months commencing on the day on which the forfeiture order is made.
Where a forfeiture order is made against property, the court that made the forfeiture order may grant a person claiming an interest in the property leave to apply under subsection (2) outside the period referred to in subsection (7) if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the part of the person.
A person who makes an application under subsection (1) or (2) in respect of property shall give notice to the DPP and the Minister of the making of the application.
Note If a form is approved under s 95 (Approved forms) for an application, the form must be used.
The DPP shall be a party to any proceedings on an application under subsection (1) or (2) and the Minister may intervene in any such proceedings.
Discharge of forfeiture order on appeal or by quashing of conviction
Where—
(a)a court makes a forfeiture order against property in reliance on a person’s conviction of an offence; and
(b)the conviction is subsequently quashed;
the quashing of the conviction discharges the order.
Where a forfeiture order against property is discharged as provided by subsection (1) or by a court hearing an appeal against the making of the order, the DPP shall—
(a)as soon as practicable after the discharge of the order, give written notice of the discharge of the forfeiture order to any person the DPP has reason to believe may have had an interest in the property immediately before the making of the forfeiture order; and
(b)if required to do so by a court—give or publish notice of the discharge of the forfeiture order to a specified person or class of persons in the manner and within the time that the court considers appropriate.
A notice under subsection (2) shall include a statement to the effect that a person claiming an interest in the property may apply under subsection (4) for the transfer of the interest to the person.
Where a forfeiture order against property is discharged as provided by subsection (1) or by a court hearing an appeal against the making of the order, any person who claims to have had an interest in the property immediately before the making of the forfeiture order may apply to the Minister, in writing, for the transfer of the interest to the person and, on receipt of an application from a person who had an interest in the property immediately before the making of the forfeiture order—
(a)if the interest is still vested in the Territory—the Minister shall arrange for the interest to be transferred to the person; or
(b)in any other case—there is payable to the person an amount equal to the value of the interest.
Where the Minister is required by this section to arrange for property to be transferred to a person, he or she has power, on behalf of the Territory, to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, without limiting the generality of this, the execution of any instrument and the making of an application for registration of an interest in the property on any appropriate register.
Division 2.3 Pecuniary penalty orders
Application of div 2.3
This division applies to—
(a)property that comes into the possession, or under the control, of a person either within or outside the ACT and either before or after the commencement of this Act; and
(b)benefits that are provided to a person either within or outside the ACT and either before or after the commencement of this Act.
Special provisions in relation to serious offences
Where an application is made to a court for a pecuniary penalty order against a person in reliance on the person’s conviction of a serious offence, the court shall not make a pecuniary penalty order in reliance on the conviction until after the end of the period of 6 months commencing on the day of the conviction.
Subsection (1) does not apply to an application for a pecuniary penalty order against a person who is to be taken to have been convicted of the serious offence by reason of section 5 (1) (d).
Pecuniary penalty orders
Where—
(a)an application is made to a court for an order under this section in respect of benefits derived by a person from the commission of an offence; and
(b)the court is satisfied that the person derived benefits from the commission of the offence;
the court may, if it considers it appropriate—
(c)assess, in accordance with section 26, the value of the benefits so derived; and
(d)order the person to pay to the Territory a pecuniary penalty equal to the penalty amount.
Subject to subsections (3) and (4), the penalty amount is the value of the benefits as assessed under subsection (1) (c).
Where—
(a)property that is proceeds of the offence has been forfeited, under this Act or another Territory law in relation to the offence; or
(b)a forfeiture order is proposed to be made against property that is proceeds of the offence;
the penalty amount shall be taken to be reduced by an amount equal to the value of the property as at the time of the making of the pecuniary penalty order.
Where the court making a pecuniary penalty order is satisfied that an amount of tax (whether payable under a law of the Territory, the Commonwealth, a State, another Territory or a foreign country) that has been paid by the person is attributable in whole or in part to the benefits in respect of which the order is being made, the court may determine that the penalty amount be reduced by the amount that, in the opinion of the court, represents the extent to which the amount of tax so paid is attributable to those benefits and where the court makes such a determination the penalty amount shall be taken to be reduced accordingly.
If the court considers it appropriate to do so, the court may reduce the amount payable by a person under a pecuniary penalty order made in relation to an offence by an amount equal to the amount payable by the person by way of fine, restitution, compensation or damages in relation to the offence.
Where—
(a)a court makes a pecuniary penalty order in relation to an offence; and
(b)in calculating the penalty amount, the court took into account a forfeiture of, or proposed forfeiture order in respect of, property; and
(c)an appeal against the forfeiture or forfeiture order is allowed or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made;
the DPP may apply to the court for a variation of the pecuniary penalty 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.
Where—
(a)a court makes a pecuniary penalty order against a person in relation to an offence; and
(b)in calculating the penalty amount, the court took into account, in accordance with subsection (4), an amount of tax paid by the person; and
(c)an amount is repaid or refunded to the person in respect of that tax;
the DPP may apply to the court for a variation of the pecuniary penalty order to increase the penalty amount by the amount repaid or refunded and the court may, if it considers it appropriate to do so, vary the order accordingly.
An amount payable by a person to the Territory in accordance with a pecuniary penalty order is a civil debt due by the person to the Territory.
A pecuniary penalty order against a person may be enforced as if it were an order made in civil proceedings instituted by the Territory against the person to recover a debt due by the person to the Territory and the debt arising from the order shall be taken to be a judgment debt.
Assessment of pecuniary penalty
In this section:
insolvency trustee means—
(a)in relation to bankruptcy—the trustee of the estate of the bankrupt; or
(b)in relation to a composition or scheme of arrangement under the Bankruptcy Act, part 4, division 6—the trustee of the composition or scheme of arrangement; or
(c)in relation to a deed of assignment, a deed of arrangement or a composition under the Bankruptcy Act, part 10—the trustee of the deed or the composition; or
(d)in relation to the estate of a deceased person in respect of which an order has been made under the Bankruptcy Act, part 11—the trustee of the estate.
offence period, in relation to an application under section 14 (1) made in relation to 2 or more offences, means the period commencing when the earlier or earliest of those offences was committed and ending when the later or latest of those offences was committed.
For the purposes of an application for a pecuniary penalty order against a person (the defendant), the value of the benefits derived by the defendant from the commission of an offence or offences shall be assessed by the court having regard to the evidence before it concerning all or any of the following:
(a)the money, or the value of the property other than money, that came into the possession or under the control of—
(i)the defendant; or
(ii)another person at the request or direction of the defendant;
by reason of the commission of the offence or any of the offences;
(b)the value of any other benefit provided to—
(i)the defendant; or
(ii)another person at the request or direction of the defendant;
by reason of the commission of the offence or any of the offences;
(c)if the offence or any of the offences consisted of the doing of an act or thing in relation to a narcotic substance—
(i)the market value, at the time of the offence, of similar or substantially similar narcotic substances; and
(ii)the amount that was, or the range of amounts that were, ordinarily paid for the doing of a similar or substantially similar act or thing;
(d)the value of the defendant’s property—
(i)where the application relates to a single offence—before, during and after the commission of the offence; or
(ii)where the application relates to 2 or more offences—before, during and after the offence period;
(e)the defendant’s income and expenditure—
(i)where the application relates to a single offence—before, during and after the commission of the offence; or
(ii)where the application relates to 2 or more offences—before, during and after the offence period.
The court, in quantifying the value of a benefit for this section, may treat as the value of the benefit the value that the benefit would have had if derived at the time when the valuation is being made and, without limiting the generality of this, may have regard to any decline in the purchasing power of money between the time when the benefit was derived and the time when the valuation is being made.
Where an application is made for a pecuniary penalty order against a person in respect of a single ordinary indictable offence, the following provisions have effect:
(a)if, at the hearing of the application, evidence is given that the value of the person’s property during or after the commission of the offence exceeded the value of the person’s property before the commission of the offence, then, for section 25 (1), the court shall, subject to paragraphs (b) and (c) and subsection (7), treat the value of the benefits derived by the person from the commission of the offence as being not less than the amount of the greatest excess;
(b)if, after evidence of the kind referred to in paragraph (a) is given, the person satisfies the court that the whole of the excess was due to causes unrelated to the commission of the offence, paragraph (a) does not apply to the excess;
(c)if, after evidence of the kind referred to in paragraph (a) is given, the person satisfies the court that a part of the excess was due to causes unrelated to the commission of the offence, paragraph (a) applies to the excess as if it were reduced by the amount of that part.
Where an application is made for a pecuniary penalty order against a person in respect of 2 or more ordinary indictable offences, the following provisions have effect:
(a)if, at the hearing of the application, evidence is given that the value of the person’s property at any time during or after the offence period exceeded the value of the person’s property before the offence period, then, for section 25 (1), the court shall, subject to paragraphs (b) and (c) and to subsection (7), treat the value of the benefits derived by the person from the commission of the offences as being not less than the amount of the excess;
(b)if, after evidence of the kind referred to in paragraph (a) is given, the person satisfies the court that the whole of the excess was due to causes unrelated to the commission of the offences, paragraph (a) does not apply to the excess;
(c)if, after evidence of the kind referred to in paragraph (a) is given, the person satisfies the court that a part of the excess was due to causes unrelated to the commission of the offences, paragraph (a) applies to the excess as if it were reduced by the amount of that part.
Where an application is made for a pecuniary penalty order against a person in relation to a serious offence or serious offences—
(a)all property of the person at the time the application is made; and
(b)all property of the person at any time—
(i)within the period between the day the offence, or the earliest offence, was committed and the day on which the application is made; or
(ii)within the period of 5 years immediately before the day on which the application is made;
whichever is the shorter;
shall be presumed, unless the contrary is proved, to be property that came into the possession or under the control of the person by reason of the commission of the offence or offences.
A benefit shall not be taken into account for this section if a pecuniary penalty has been imposed in respect of the benefit under—
(a)this Act; or
(b)the Proceeds of Crime Act 1987 (Cwlth); or
(c)the Customs Act, part 13, division 3; or
(d)a law of a State or another Territory.
In calculating, for the purposes of an application for a pecuniary penalty order, the value of benefits derived by a person from the commission of an offence or offences, any expenses or outgoings of the person in connection with the commission of the offence or offences shall be disregarded.
For this section, where property of a person vests in an insolvency trustee, the property shall be taken to continue to be the property of the person.
At the hearing of an application for a pecuniary penalty order, a police officer who is experienced in the investigation of narcotic substance offences may testify, to the best of the officer’s information, knowledge and belief—
(a)with respect to the amount that was the market value of a narcotic substance at a particular time or during a particular period; or
(b)with respect to the amount, or the range of amounts, that was the amount, or 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 a narcotic substance;
notwithstanding any rule of law or practice relating to hearsay evidence, and the testimony is evidence of the matters testified to.
Court may lift corporate veil etc
In assessing the value of benefits derived by a person from the commission of an offence or offences, the court may treat as property of the person any property that, in the opinion of the court, is subject to the effective control of the person.
On application by an appropriate officer, a court may, if in its opinion particular property is subject to the effective control of a person against whom the court has made a pecuniary penalty order, make an order declaring that the whole, or a specified part, of that property is available to satisfy the pecuniary penalty order.
Where a court declares that property is available to satisfy a pecuniary penalty 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 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.
Where an appropriate officer makes an application for an order under subsection (2) that property is available to satisfy a pecuniary penalty order against a person—
(a)the appropriate officer shall give written notice of the application to the person and to any person who the appropriate officer has reason to believe may have an interest in the property; and
(b)the person and any person who claims an interest in the property may appear and adduce evidence at the hearing of the application.
Division 2.4 Forfeiture in case of serious offence
Forfeiture of all restrained property if person convicted of serious offence
If—
(a)a person (the defendant) is convicted of a serious offence (otherwise than by reason of section 5 (1) (d)); and
(b)a restraining order is or was granted in respect of property (whether property of the defendant or of some other person) in reliance on—
(i)the defendant’s conviction of that offence; or
(ii)the charging or proposed charging of the defendant with that offence or a related offence; and
(c)the restraining order, to the extent to which it relates to the property, is not the subject of a declaration under section 51 (5); and
(d)the restraining order is in force at the end of the period of 6 months commencing on the day of the conviction;
the property is, under this subsection, forfeited to the Territory at the end of that period.
Subject to subsection (3), where property is forfeited to the Territory under subsection (1), the property vests absolutely in the Territory.
Where registrable property is forfeited to the Territory under subsection (1)—
(a)the property vests in equity in the Territory but does not vest in the Territory at law until the applicable registration requirements have been complied with; and
(b)the Territory is entitled to be registered as owner of the property; and
(c)the Minister has power, on behalf of the Territory, to do, or to authorise the doing of, anything necessary or convenient to obtain the registration of the Territory as owner, including, without limiting the generality of this, the execution of any instrument required to be executed by a person transferring an interest in property of that kind.
Where property is forfeited to the Territory under this section in respect of a person’s conviction of a serious offence—
(a)the property shall not, except with the leave of the court that made the relevant restraining order and in accordance with any directions of the court, be disposed of, or otherwise dealt with, by or on behalf of the Territory, before the end of the appeal period in respect of the conviction; and
(b)if, at the end of the appeal period in respect of the conviction, the conviction has not been quashed, then, subject to any direction under subsection (5), the public trustee shall, as soon as practicable after the end of the appeal period—
(i)if the property is money—after paying the public trustee’s remuneration and other costs, charges and expenses of the kind referred to in section 59 payable to or incurred by it in connection with the restraining order, pay the remainder of the money to the trust fund as required by section 34; and
(ii)if the property is not money—sell or otherwise dispose of the property and, after paying the public trustee’s remuneration and other costs, charges and expenses of the kind referred to in section 59 payable to or incurred by it in connection with the restraining order or the sale or disposition, pay the remainder of those proceeds to the trust fund as required by section 34.
Where property is forfeited under this section because of a person’s conviction of a serious offence, the Minister, or a prescribed officer authorised by the Minister for this subsection, may, at or after the end of the appeal period in respect of the conviction but before the property is dealt with under subsection (4) (b), direct that the property be disposed of, or otherwise dealt with, as specified in the direction.
Without limiting subsection (5), the directions that may be given under that subsection include a direction that property is to be disposed of in accordance with the provisions of a law specified in the direction.
Where property is forfeited to the Territory under subsection (1), the Minister may give all directions that are necessary or convenient to realise the Territory’s interest in the property.
Without limiting the generality of subsection (7), where registrable property is forfeited to the Territory under subsection (1), the Minister may direct a public servant or a police officer to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.
A reference in this section to the appeal period in relation to the conviction of a person of an offence is—
(a)in a case where the person is to be taken to have been convicted of the offence by reason of section 5 (1) (b)—a reference to the appeal period in relation to the finding of the person guilty of the offence; and
(b)in a case where the person is to be taken to have been convicted of the offence by reason of section 5 (1) (c)—a reference to the appeal period in relation to the conviction of the person of the other offence referred to in that paragraph.
Where a court makes a restraining order in reliance on—
(a)a person’s conviction of a serious offence; or
(b)the charging or proposed charging of a person with such an offence;
a person may apply to the court for a declaration that property that was subject to the restraining order has been forfeited to the Territory under subsection (1) and the court, if satisfied that the property has been forfeited to the Territory under that subsection, shall make a declaration accordingly.
In this section:
appeal period, in relation to a person’s conviction of an offence, means the period ending—
(a)if the period provided for the lodging of an appeal against the conviction has ended without such an appeal having been lodged—at the end of that period; or
(b)if an appeal against the conviction has been lodged—when the appeal lapses or is finally determined.
Recovery of property to which s 28 applies
Where property is forfeited to the Territory under section 28, a person who claims an interest in the property may, subject to subsections (2) and (4), apply to the court that made the relevant restraining order for an order under subsection (6) or (7).
The application shall, subject to subsection (3), be made before the end of the period of 6 months commencing on the day on which the property is forfeited to the Territory.
The court may grant a person leave to apply after the end of the period referred to in subsection (2) if the court is satisfied that the delay in making the application is not due to neglect on the part of the applicant.
An application for an order under subsection (6) or (7) in relation to an interest in property shall not be made by a person who was given notice of—
(a)proceedings on the application for the relevant restraining order; or
(b)the making of the relevant restraining order;
except with the leave of the court.
The court may grant a person leave to make an application if the court is satisfied that the person’s failure to seek to have the property excluded from the relevant restraining order was not due to any neglect on the part of the applicant.
Where a person applies for an order under this subsection in respect of an interest in property, the court may—
(a)if satisfied that—
(i)the applicant was not, in any way, involved in the commission of the relevant serious offence; and
(ii)the applicant’s interest in the property is not subject to the effective control of the defendant; and
(iii)if the applicant acquired the interest at the time of or after the commission of the offence—the applicant acquired the interest—
(A)for sufficient consideration; and
(B)without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; or
(b)if satisfied that—
(i)the property was not used in, or in connection with, any unlawful activity and was not derived or realised, directly or indirectly, by any person from any unlawful activity; and
(ii)the applicant’s interest in the property was lawfully acquired;
make an order—
(c)declaring the nature, extent and value of the applicant’s interest in the property; and
(d)either—
(i)if the interest is still vested in the Territory—directing the Territory to transfer the interest to the applicant; or
(ii)declaring that there is payable by the Territory to the applicant an amount equal to the value declared under paragraph (c).
Where a person applies for an order under this subsection in respect of an interest in property, the court may, if satisfied that—
(a)it would not be contrary to the public interest for the interest to be transferred to the person; and
(b)there is no other reason why the interest should not be transferred to the person;
by order—
(c)declare the nature, extent and value (as at the time when the order is made) of the interest; and
(d)declare that section 28 shall cease to operate in relation to the interest if payment is made in accordance with section 31.
A person who makes an application under subsection (1) in respect of property shall give notice to the DPP and the Minister of the making of the application.
NoteIf a form is approved under s 95 (Approved forms) for an application, the form must be used.
The DPP shall be a party to any proceedings upon an application under subsection (1) and the Minister may intervene in any such proceedings.
In this section:
defendant, in relation to property forfeited to the Territory under section 28, means the person by virtue of whose conviction the property is forfeited.
relevant restraining order, in relation to property forfeited to the Territory under section 28, means the restraining order by virtue of which the property is forfeited.
Effect of quashing of conviction
Where—
(a)property is forfeited to the Territory under section 28 in respect of a person’s conviction of a serious offence; and
(b)the conviction is subsequently quashed;
the DPP shall—
(c)as soon as practicable after the quashing of the conviction, give notice of the quashing of the conviction to any person the DPP has reason to believe may have had an interest in the property immediately before the property was forfeited; and
(d)if required to do so by a court, give or publish notice of the quashing of the conviction to a specified person or class of persons in the manner and within the time that the court considers appropriate.
A notice under subsection (1) shall include a statement to the effect that a person claiming an interest in the property may apply under subsection (3) for the transfer of the interest to the person.
Where subsection (1) applies to property, any person who claims to have had an interest in the property immediately before it was forfeited may apply to the Minister, in writing, for the transfer of the interest to the person and, on receipt of an application from a person who had an interest in the property immediately before it was forfeited—
(a)if the interest is still vested in the Territory—the Minister shall arrange for the interest to be transferred to the person; or
(b)in any other case—there is payable to the person an amount equal to the value of the interest.
Where the Minister is required by this section to arrange for property to be transferred to a person, the Minister has power, on behalf of the Territory, to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, without limiting the generality of this, the execution of any instrument and the making of an application for registration of an interest in the property on any appropriate register.
Division 2.5 Miscellaneous
Person with interest in forfeited property may buy back the interest
Where a court—
(a)makes a forfeiture order against property; and
(b)makes an order under section 19 (5) in respect of an interest in the property;
the payment to the Territory, while the interest is still vested in the Territory, of the amount specified in the order under section 19 (5) as the value of the interest discharges the forfeiture order to the extent to which it relates to the interest.
Where—
(a)property is forfeited to the Territory under section 28; and
(b)a court makes an order under section 29 (7) in respect of an interest in the property; and
(c)there is paid to the Territory, while the interest is still vested in the Territory, the amount specified in the order under section 29 (7) as the value of the interest;
section 28 ceases to apply in relation to the interest.
Where subsection (1) or (2) applies to an interest in property, the Minister shall arrange for the interest to be transferred to the person in whom it was vested immediately before the property was forfeited to the Territory.
Where the Minister is required by this section to arrange for an interest in property to be transferred to a person, the Minister has power, on behalf of the Territory, to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, without limiting the generality of this, the execution of any instrument and the making of an application for registration of an interest in the property on any appropriate register.
Buying out other interests in forfeited property
Where—
(a)property is forfeited to the Territory under this part; and
(b)an interest in the property is required to be transferred to a person (the purchaser) under section 22 (4) or 31 (3), or under a direction under section 21 (6) (d) (i), or 29 (6) (d) (i); and
(c)the purchaser’s interest in the property, immediately before the forfeiture took place, was not the only interest in the property; and
(d)the purchaser gives written notice to each other person who had an interest in the property immediately before the forfeiture took place that—
(i)the purchaser intends to purchase that other interest from the Territory; and
(ii)the person served with the notice may, within 21 days after receiving the notice, lodge a written objection to the purchase of that interest with the Minister; and
(e)the person served with notice under paragraph (d) in relation to that interest does not lodge a written objection to the purchase of that interest with the Minister within the period referred to in that paragraph; and
(f)the person pays to the Territory, while that interest is still vested in the Territory, an amount equal to the value of that interest;
the Minister shall arrange for that interest to be transferred to the purchaser.
Part 3Confiscated assets trust fund
Establishment of trust fund
A fund called the confiscated assets trust fund is established by this subsection.
33ABank account
All money received by the confiscated assets trust fund shall be paid into a trust bank account maintained under the Financial Management Act 1996, section 51.
Payments into trust fund
There are to be paid to the trust fund—
(a)proceeds of confiscated assets; and
(b)money derived from the enforcement of an interstate forfeiture order registered in the ACT, other than money covered by a direction under section 20 (4) or 28 (5); and
(c)the Territory’s share, under the equitable sharing program, of proceeds resulting from a breach of the criminal law of the Commonwealth, a State or another Territory.
Subject to section 37, all amounts paid to the trust fund are to be identified in accordance with the regulations as distributable funds or suspended funds and are to retain that identity while they remain within the trust fund.
Where an amount payable to the Territory must, under this section, be paid to the trust fund, payment of that amount to the trust fund is, for all purposes, taken to be payment to the Territory.
Payments out of trust fund
The purposes of the trust fund are—
(a)to the extent to which it comprises suspended funds—
(i)making such payments (if any) to the Commonwealth or a State as the Attorney-General considers are appropriate under the equitable sharing program; and
(ii)paying the prescribed annual management fee in accordance with the regulations; and
(iii)making such payments by way of restitution as are required under section 21 (6) (d) (ii), 22 (4) (b) or 29 (6) (d) (ii); and
(b)to the extent to which it comprises distributable funds—
(i)making payments to a government business enterprise of any proceeds of confiscated assets that relate to a relevant offence that caused financial loss to the government business enterprise; and
(ii)making payments in accordance with section 36 for purposes related to law enforcement and drug rehabilitation and education.
In this section:
relevant offence means an offence under—
(a)the Crimes (Offences against the Government) Act 1989, section 5, 6, 7, 8 or 11; or
(b)the Crimes Act, section 184; or
(c)a prescribed offence.
Application of distributable funds
For section 35 (1) (b) (ii), the Attorney-General may, from time to time, but shall, at least once in each financial year, determine in accordance with the regulations the amount of the balance of the distributable funds that is available for distribution at that time.
The Attorney-General may apply the balance towards—
(a)the administration of this Act; and
(b)enforcement of the laws of the Territory; and
(c)criminal justice activities; and
(d)crime prevention; and
(e)assistance to the victims of crime; and
(f)the prevention of drug abuse; and
(g)rehabilitation of drug users; and
(h)any other prescribed purpose.
There shall be stated in a search warrant issued under this section—
(a)a statement of the purpose for which the warrant is issued, including a reference to the nature of the indictable offence that has been or is believed to have been committed; and
(b)whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(c)a description of the kind of documents authorised to be seized; and
(d)a date, not being later than 1 month after the day of issue of the warrant, on which the warrant ceases to have effect.
If, in the course of searching, under a warrant issued under this section, for a property-tracking document in relation to a particular offence, a police officer finds—
(a)any document that the police officer believes, on reasonable grounds, to be—
(i)a property-tracking document in relation to the offence, although not of a kind specified in the warrant; or
(ii)a property-tracking document in relation to another indictable offence; or
(b)anything that the police officer believes, on reasonable grounds, will afford evidence as to the commission of a criminal offence;
and the police officer believes, on reasonable grounds, that it is necessary to seize that document or thing in order to prevent its concealment, loss or destruction, the warrant shall be deemed to authorise the police officer to seize that document or thing.
Division 5.3 Monitoring orders
Monitoring orders
A police officer may apply to a judge of the Supreme Court for an order (a monitoring order) directing a financial institution to give information to the police officer.
A monitoring order shall direct a financial institution to give information obtained by the institution about transactions conducted through an account held by a particular person with the institution.
A monitoring order shall apply in relation to transactions conducted during the period specified in the order (being a period commencing not earlier than the day on which notice of the order is given to the financial institution and ending not later than 3 months after the date of the order).
A judge shall not make a monitoring order unless he or she is satisfied that there are reasonable grounds for suspecting that the person in respect of whose account the information is sought—
(a)has committed, or is about to commit, an indictable offence that is a serious offence; or
(b)was involved in the commission, or is about to be involved in the commission, of an indictable offence that is a serious offence; or
(c)has benefited directly or indirectly, or is about to benefit directly or indirectly, from the commission of an indictable offence that is a serious offence.
A monitoring order shall specify—
(a)the name or names in which the account is believed to be held; and
(b)the class of information that the institution is required to give; and
(c)the manner in which the information is to be given.
Where a financial institution is, or has been, subject to a monitoring order, the fact that the monitoring order has been made shall be disregarded for the application of section 74 and 75 in relation to the institution.
Where a financial institution that has been given notice of a monitoring order knowingly—
(a)contravenes the order; or
(b)provides false or misleading information in purported compliance with the order;
the institution commits an offence .
Maximum Penalty: 1 000 penalty units.
A reference in this section to a transaction conducted through an account includes a reference to—
(a)the making of a fixed term deposit; and
(b)in relation to a fixed term deposit—the transfer of the amount deposited, or any part of it, at the end of the term.
Existence and operation of monitoring order not to be disclosed
A financial institution that is, or has been, subject to a monitoring order shall not disclose the existence or the operation of the order to any person except—
(a)a police officer; or
(b)an officer or agent of the institution, for the purpose of ensuring that the order is complied with; or
(c)a legal practitioner, for the purposes of obtaining legal advice or representation in relation to the order.
A person of a kind referred to in subsection (1) (a), (b) or (c) to whom a disclosure of the existence or operation of a monitoring order has been made (whether in accordance with subsection (1) or a previous application of this subsection or otherwise) shall not—
(a)while he or she is such a person, disclose the existence or operation of the order except to another person of a kind referred to in subsection (1) (a), (b) or (c) for the purposes of—
(i)if the disclosure is made by a police officer—the performance of that person’s duties; or
(ii)if the disclosure is made by an officer or agent of the institution—ensuring that the order is complied with or obtaining legal advice or representation in relation to the order; or
(iii)if the disclosure is made by a legal practitioner—giving legal advice or making representations in relation to the order; or
(b)when he or she is no longer such a person, make a record of, or disclose, the existence or the operation of the order in any circumstances.
Nothing in subsection (2) prevents the disclosure by a police officer of the existence or operation of a monitoring order—
(a)for the purposes of, or in connection with, legal proceedings; or
(b)in the course of proceedings before a court.
A police officer shall not be required to disclose to any court the existence or operation of a monitoring order.
A person who contravenes subsection (1) or (2) commits an offence.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
A reference in this section to disclosing the existence or operation of a monitoring order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the monitoring order.
Division 5.4 Obligations of financial institutions
Definitions for div 5.4
In this division:
customer generated financial transaction document, in relation to a financial institution, means a financial transaction document of the institution—
(a)that relates to—
(i)the opening or closing by a person of an account with the institution; or
(ii)the operation by a person of an account with the institution; or
(iii)the opening or use by a person of a deposit box held by the institution; or
(iv)the telegraphic or electronic transfer of funds by the institution on behalf of a person to another person; or
(v)the transmission of funds between Australia and a foreign country or between foreign countries on behalf of a person; or
(vi)an application by a person for a loan from the institution (where a loan is made to the person under the application); and
(b)that is given to the institution by or on behalf of the person (whether or not the document is signed by or on behalf of the person).
essential customer generated financial transaction document, in relation to a financial institution, means a customer generated financial transaction document other than a document that relates to the operation of an account held with the institution.
financial transaction document, in relation to a financial institution, means any document that relates to a financial transaction carried out by the institution in its capacity as a financial institution and, without limiting the generality of this, includes a document relating to—
(a)the opening, operating or closing of an account held with the institution; and
(b)the opening or use of a deposit box held by the institution;
but does not include a cheque or payment order.
minimum retention period, in relation to a financial transaction document of a financial institution, means—
(a)if the document relates to the opening of an account with the institution—the period of 7 years after the day on which the account is closed; or
(b)if the document relates to the opening by a person of a deposit box held by the institution—the period of 7 years after the day on which the deposit box ceases to be used by the person; or
(c)in any other case—the period of 7 years after the day on which the transaction takes place.
Retention of records by financial institutions
A financial institution shall, subject to section 73, retain each essential customer generated financial transaction document in its original form for the minimum retention period applicable to the document.
Subject to subsection (4), a financial institution shall retain, or retain a copy of, each customer generated financial transaction document that is not an essential customer generated financial transaction document for the minimum retention period applicable to the document.
Subject to subsection (4), a financial institution shall retain, or retain a copy of, each financial transaction document—
(a)that is not a customer generated financial transaction document; and
(b)whose retention is necessary to preserve a record of the financial transaction concerned;
for the minimum retention period applicable to the document.
Subsections (2) and (3) do not apply to a financial transaction document that relates to a single deposit, credit, withdrawal, debit or transfer of an amount of money that does not exceed $200 or such higher amount as is prescribed by the regulations for this subsection.
A financial institution required to retain documents under this section shall retain and store them in a way that makes retrieval of the documents reasonably practicable.
A financial institution that contravenes subsection (1), (2), (3) or (5) commits an offence.
Maximum penalty: 100 penalty units.
This section does not limit any other obligation of a financial institution to retain documents.
Register of original documents
Where a financial institution is required by law to release an original of an essential customer generated financial transaction document before the end of the minimum retention period applicable to the document, the institution shall retain a complete copy of the document until the period has ended or the original is returned, whichever occurs first.
The financial institution shall maintain a register of documents released under subsection (1).
A financial institution that contravenes subsection (1) or (2) commits an offence.
Maximum penalty: 100 penalty units.
Part 6Offences
Division 6.1 Money laundering
Money laundering
In this section:
transaction includes the receiving or making of a gift.
A person who, after the commencement of this Act, engages in money laundering commits an offence.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.
A person shall be taken to engage in money laundering only if—
(a)the person engages, directly or indirectly, in a transaction that involves money, or other property, that is proceeds of crime; or
(b)the person receives, possesses, conceals, disposes of or brings into the ACT any money, or other property, that is proceeds of crime;
and the person knows, or ought reasonably to know, that the money or other property is derived or realised, directly or indirectly, from some form of unlawful activity.
Possession etc of property suspected of being proceeds of crime
A person who, after the commencement of this Act, receives, possesses, conceals, disposes of or brings into the ACT any money, or other property, that may reasonably be suspected of being proceeds of crime commits an offence.
Maximum penalty: 100 penalty units, imprisonment for 1 year or both.
Where a person is charged with an offence against this section, it is a defence to the charge if the person satisfies the court that he or she had no reasonable grounds for suspecting that the property referred to in the charge was derived or realised, directly or indirectly, from some form of unlawful activity.
Division 6.2 Organised fraud
Organised fraud
A person who engages in organised fraud commits an offence.
Maximum penalty: 1 500 penalty units, imprisonment for 15 years or both.
A person shall be taken to engage in organised fraud only if he or she engages, after the commencement of this Act, in acts or omissions—
(a)that constitute 3 or more public fraud offences; and
(b)from which the person derives substantial benefit.
Where a person is charged with an offence against subsection (1) in relation to a number of public fraud offences and the jury is not satisfied that the person is guilty of the offence against subsection (1) but is satisfied that the person is guilty of 1 or more of the public fraud offences, the jury shall acquit the person of the offence against subsection (1) and may find the person guilty of that public fraud offence or those public fraud offences and the person is punishable accordingly.
In this section:
public fraud offence means an offence against the Crimes (Offences against the Government) Act 1989, section 8 or the Crimes Act, section 184.
Division 6.3 Miscellaneous
Conduct by directors, servants or agents
Where it is necessary, for this Act, to establish the state of mind of a body corporate in respect of conduct engaged in, or deemed by subsection (2) to have been engaged in, by the body corporate, it is sufficient to show that a director, servant or agent of the body corporate, being a director, servant or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
Any conduct engaged in on behalf of a body corporate—
(a)by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of a director, servant or agent of the body corporate, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the director, servant or agent;
shall be deemed, for this Act, to have been engaged in by the body corporate.
Where it is necessary, for this Act, to establish the state of mind of a person in relation to conduct deemed by subsection (4) to have been engaged in by the person, it is sufficient to show that a servant or agent of the person, being a servant or agent by whom the conduct was engaged in within the scope of his or her actual or apparent authority, had that state of mind.
Conduct engaged in on behalf of a person other than a body corporate—
(a)by a servant or agent of the person within the scope of his or her actual or apparent authority; or
(b)by any other person at the direction or with the consent or agreement (whether express or implied) of a servant or agent of the firstmentioned person, where the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the servant or agent;
shall be deemed, for this Act, to have been engaged in by the firstmentioned person.
A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person’s reasons for the person’s intention, opinion, belief or purpose.
A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Territory, the Commonwealth, of a State or of another Territory.
Part 7Interstate orders and warrants
Division 7.1 Interstate restraining orders
Registration of interstate restraining orders
If an interstate restraining order expressly applies to—
(a)specified property in the ACT; or
(b)all property in the ACT of a specified person; or
(c)all property (other than specified property) in the ACT of a specified person;
a copy of the order, sealed by the court making the order, may be registered in the Supreme Court by the person on whose application the order was made or by an appropriate officer.
A copy of any amendments made to an interstate restraining order (before or after registration), sealed by the court making the amendments, may be registered in the same way, and the amendments do not, for this Act, have effect until they are registered.
Registration of an interstate restraining order may be refused to the extent that the order would not, on registration, be capable of enforcement in the ACT.
Registration shall be effected in accordance with the rules of the Supreme Court.
Effect of registration
An interstate restraining order registered in the Supreme Court may be enforced in the ACT as if it were a restraining order made under section 45 at the time of registration.
This Act (other than sections 28, 29, 50, 51, 53, 54, 60 and 61) applies to an interstate restraining order registered in the Supreme Court as it applies to a restraining order made under section 45.
Duration of registration
An interstate restraining order ceases to be registered under this Act if—
(a)the Supreme Court in which it is registered receives notice that it has ceased to be in force in the State or Territory in which it was made; or
(b)the registration is cancelled under section 81.
Cancellation of registration
The registration of an interstate restraining order in the Supreme Court may be cancelled by the court or a prescribed officer of the court if—
(a)registration was improperly obtained; or
(b)particulars of any amendments made to the restraining order, or of any ancillary orders or directions made by a court, are not communicated to the Supreme Court in accordance with the requirements of the rules of the Supreme Court.
The registration of an interstate restraining order in the Supreme Court may be cancelled by the court to the extent that the order is not capable of enforcement in the ACT.
Charge on property subject to registered interstate restraining order
If—
(a)an interstate restraining order is made against property in reliance on a person’s conviction of an interstate indictable offence or in reliance on the charging, or proposed charging, of a person with an interstate indictable offence; or
(b)an interstate pecuniary penalty order is made against the person in reliance on the person’s conviction of that offence or a related interstate indictable offence; or
(c)the interstate restraining order is registered under this division in the Supreme Court; or
(d)the interstate pecuniary penalty order is registered in a Territory court under the Service and Execution of Process Act 1901 (Cwlth);
then, on the registration referred to in paragraph (c) or the registration referred to in paragraph (d) (whichever occurs last), a charge is created on the property to secure payment of the amount due under the interstate pecuniary penalty order.
Where a charge is created by subsection (1) on property of a person to secure payment of the amount due under an interstate pecuniary penalty order, the charge ceases to have effect in respect of the property—
(a)on the quashing of the conviction in reliance on which the interstate pecuniary penalty order was made; or
(b)on the discharge of the interstate pecuniary penalty order by a court hearing an appeal against the making of the order; or
(c)on payment of the amount due under the interstate pecuniary penalty order; or
(d)on the person becoming bankrupt; or
(e)on the sale or other disposition of the property—
(i)under an order made by a court under the corresponding law of the State in which the interstate pecuniary penalty order was made; or
(ii)by the owner of the property with the consent of the court that made the interstate pecuniary penalty order; or
(iii)where the interstate restraining order directed a person to take control of the property—by the owner of the property with the consent of that person; or
(f)on the sale of the property to a purchaser in good faith for value who, at the time of purchase, has no notice of the charge;
whichever occurs first.
A charge created on property by subsection (1)—
(a)is subject to every encumbrance on the property that came into existence before the charge and that would, apart from this subsection, have priority over the charge; and
(b)has priority over all other encumbrances; and
(c)subject to subsection (2), is not affected by any change of ownership of the property.
Where a charge is created by subsection (1) on property of a particular kind and the provisions of any law of the Territory, of the Commonwealth, of a State or of another Territory provide for the registration of title to, or charges over, property of that kind, the public trustee or the DPP may cause the charge so created to be registered under the provisions of that law and, if the charge is so registered, a person who purchases or otherwise acquires an interest in the property after the registration of the charge shall, for subsection (2) (f), be deemed to have notice of the charge at the time of the purchase or acquisition.
Powers of public trustee in relation to interstate restraining orders
Where—
(a)an interstate restraining order is registered in the Supreme Court under this division; and
(b)the restraining order directs an official of a State or another Territory to take control of property;
the public trustee may, in accordance with an agreement between the public trustee and that official, exercise the same powers in relation to the property that the official would have been able to exercise if the property were located in the State or other Territory.
Division 7.2 Interstate forfeiture orders
Registration of interstate forfeiture orders
If an interstate forfeiture order expressly applies to property in the ACT, a copy of the order, sealed by the court making the order, may be registered in the Supreme Court by the person on whose application the order was made or by an appropriate officer.
A copy of any amendments made to an interstate forfeiture order (before or after registration), sealed by the court making the amendments, may be registered in the same way, and the amendments do not, for this Act, have effect until they are registered.
Registration of an interstate forfeiture order may be refused to the extent that the order would not, on registration, be capable of enforcement in the ACT.
Registration shall be effected in accordance with the rules of the Supreme Court.
Effect of registration
An interstate forfeiture order registered in the Supreme Court may be enforced in the ACT as if it were a forfeiture order made under this Act at the time of registration.
This Act (other than sections 21, 22 and 91) applies to an interstate forfeiture order registered in the ACT as it applies to a forfeiture order made under section 19.
Duration of registration
An interstate forfeiture order ceases to be registered under this Act if—
(a)the order ceases to be in force in the State or Territory in which it was made; or
(b)the registration is cancelled under section 87.
Cancellation of registration
The registration of an interstate forfeiture order in the Supreme Court may be cancelled by the Supreme Court or a prescribed officer of the Supreme Court if—
(a)registration was improperly obtained; or
(b)particulars of any amendments made to the forfeiture order, or of any ancillary orders or directions made by a court, are not communicated to the Supreme Court in accordance with the requirements of the rules of the Supreme Court.
The registration of an interstate forfeiture order in the Supreme Court may be cancelled by the Supreme Court to the extent that the order is not capable of enforcement in the ACT.
Division 7.3 Miscellaneous
Interim registration of fax copies
A fax copy of a sealed copy of an interstate restraining order or an interstate forfeiture order, or of a sealed copy of any amendments made to such an order, shall be regarded for this Act as the same as the sealed copy, if the fax copy is itself certified in accordance with the rules of the Supreme Court.
Registration effected by means of a fax copy ceases to have effect at the end of the period of 5 days commencing on the day of registration unless a sealed copy that is not a fax copy has been registered by that time.
Registration of the sealed copy before the end of the period referred to in subsection (2) has effect as from the day of registration of the fax copy.
Part 8Miscellaneous
Dealings with forfeited property
A person who knows that a forfeiture order has been made in respect of registrable property shall not, unless the forfeiture order has been discharged, dispose of, or otherwise deal with, the property before the Territory’s interest has been registered on the appropriate register.
A person who contravenes subsection (1) commits an offence.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
Standard of proof
Subject to section 17, any question of fact to be decided by a court on an application under this Act is to be decided on the balance of probabilities.
Appeals
A person who has an interest in property against which a forfeiture order is made may appeal against that order—
(a)in the case of a person convicted of the offence in reliance on which the order was made—in the same manner as if the order were, or were part of, a sentence imposed on the person in respect of the offence; or
(b)in any other case—in the same manner as if the person had been convicted of the offence in reliance on which the order was made and the order were, or were part of, a sentence imposed on the person in respect of the offence.
A person against whom a pecuniary penalty order is made may appeal against that order in the same manner as if it were, or were part of, a sentence imposed on the person in respect of the offence in reliance on which the order was made.
Where a court—
(a)makes a pecuniary penalty order; and
(b)makes an order under section 27 (2) declaring that particular property is available to satisfy the order;
a person who has an interest in the property may appeal against the order under section 27 (2) in the same manner as if the person had been convicted of the offence in reliance on which the order was made and the order were, or were part of, a sentence imposed on the person in respect of the offence.
On an appeal against a forfeiture order, a pecuniary penalty order or an order made under section 27 (2), the order may be confirmed, discharged or varied.
The DPP may appeal against a forfeiture order, a pecuniary penalty order or an order under section 27 (2) or against the refusal of a court to make such an order in the same manner as if the order were, or were part of, a sentence imposed in respect of the offence in reliance on which the order was made.
Nothing in this section shall be taken to affect any right of appeal that a person would have apart from this section.
Costs
Where—
(a)a person brings, or appears at, proceedings under this Act before a court in order—
(i)to prevent a forfeiture order or restraining order from being made against property of the person; or
(ii)to have property of the person excluded from a forfeiture order or restraining order; and
(b)the person is successful in those proceedings; and
(c)the court is satisfied that the person was not involved in any way in the commission of the offence in respect of which the forfeiture order or restraining order was sought or made;
the court may order the Territory to pay all costs incurred by the person in connection with the proceedings or such part of those costs as is determined by the court.
The costs referred to in subsection (1) are not limited to costs of a kind that are normally recoverable by the successful party to civil proceedings.
Indemnification of public trustee
The Territory is, by force of this subsection, liable to indemnify the public trustee against any personal liability (including any personal liability as to costs) incurred by the public trustee for any act done, or omitted to be done by him or her in the exercise, or purported exercise, of his or her powers and duties under this Act.
Nothing in subsection (1) affects—
(a)any right that the public trustee has, apart from that subsection, to be indemnified in respect of any personal liability referred to in that subsection; or
(b)any other indemnity given to the public trustee in respect of any such personal liability.
Where the Territory makes a payment in accordance with the indemnity referred to in subsection (1), the Territory has the same right of reimbursement in respect of the payment (including reimbursement under another indemnity given to the public trustee) as the public trustee would have if he or she had made the payment.
Operation of other laws not affected
Nothing in this Act limits or restricts—
(a)the operation of any other Territory law providing for the forfeiture of property or the imposition of pecuniary penalties; or
(b)the remedies available to the Territory, apart from this Act, for the enforcement of its rights and the protection of its interests.
Approved forms
The Minister may, in writing, approve forms for this Act.
If the Minister approves a form for a particular purpose, the approved form must be used for that purpose.
An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation Act 2001.
Regulation-making power
The Executive may make regulations for this Act.
NoteRegulations must be notified, and presented to the Legislative Assembly, under the Legislation Act 2001.
Endnotes
About the endnotes
Amending and modifying laws are annotated in the legislation history and the amendment history. Current modifications are not included in the republished law but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are annotated in the amendment history. Full details of any amendments can be obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws and expiries are listed in the legislation history and the amendment history. These details are underlined. Uncommenced provisions and amendments are not included in the republished law but are set out in the last endnote.
If all the provisions of the law have been renumbered, a table of renumbered provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
If the republished law includes penalties, current information about penalty unit values appears on the republication inside front cover.
Abbreviation key
am = amended ord = ordinance amdt = amendment orig = original ch = chapter p = page cl = clause par = paragraph def = definition pres = present dict = dictionary prev = previous disallowed = disallowed by the Legislative (prev...) = previously Assembly prov = provision div = division pt = part exp = expires/expired r = rule/subrule Gaz = Gazette reg = regulation/subregulation hdg = heading renum = renumbered IA = Interpretation Act 1967 reloc = relocated ins = inserted/added R[X] = Republication No LA = Legislation Act 2001 s = section/subsection LR = legislation register sch = schedule LRA = Legislation (Republication) Act 1996 sdiv = subdivision mod = modified / modification sub = substituted No = number SL = Subordinate Law num = numbered underlining = whole or part not commenced o = order or to be expired om = omitted/repealed
Legislation history
Proceeds of Crime Act 1991 No 103
notified 10 January 1991 (Gaz 1991 No S162)
s 1, s 2 commenced 10 January 1992 (s 2 (1))remainder commenced 10 February 1992 (s 2 (2) and Gaz 1992 No S21)
as amended by
Acts Revision (Position of Crown) Act 1993 No 44 sch 2
notified 27 August 1993 (Gaz 1993 No S165)
commenced 27 August 1993 (s 2)
Public Sector Management (Consequential and Transitional Provisions) Act 1994 No 38 sch 1 pt 66
notified 30 June 1994 (Gaz 1994 No S121)
s 1, s 2 commenced 30 June 1994 (s 2 (1))sch 1 pt 66 commenced 1 July 1994 (s 2 (2) and Gaz 1994 No S142)
Statute Law Revision (Penalties) Act 1994 No 81 sch
notified 29 November 1994 (Gaz 1994 No S253)
s 1, s 2 commenced 29 November 1994 (s 2 (1))sch commenced 29 November 1994 (s 2 (2) and Gaz 1994 No S269)
Financial Management and Audit (Consequential and Transitional Provisions) Act 1996 No 26 sch pt 26
notified 1 July 1996 (Gaz 1996 No S130)
commenced 1 July 1996 (s 2)
Legal Practitioners (Consequential Amendments) Act 1997 No 96 sch 1
notified 1 December 1997 (Gaz 1997 No S380)
s 1, s 2 commenced 1 December 1997 (s 2 (1))sch 1 commenced 1 June 1998 (s 2 (2))
Financial Sector Reform (ACT) Act 1999 No 33 sch
notified 25 June 1999 (Gaz 1999 No S34)
s 1, s 2, dict commenced 25 June 1999 (s 2 (1))sch commenced 1 July 1999 (s 2 (2) and Cwlth Gaz 1999 No S289)
Legislation (Consequential Amendments) Act 2001 No 44 pt 299
notified 26 July 2001 (Gaz 2001 No 30)
s 1, s 2 commenced 26 July 2001 (IA s 10B)pt 299 commenced 12 September 2001 (s 2 and Gaz 2001 No S65)
as repealed by
Confiscation of Criminal Assets Act 2003 A2003-8 s 261
notified LR 27 March 2003
s 1, s 2 commenced 27 March 2003 (LA s 75 (1))
s 261 commenced 15 August 2003 (s 2 and CN2003-7)Amendment history
Commencement
s 2om 2001 No 44 amdt 1.3286
Interpretation for Act
s 4def financial institution am 1999 No 33 sch
def prescribed officer am 1994 No 38 sch 1 pt 66
Application to Crown
s 12om 1993 No 44 sch 2
Application for confiscation order
div 2.1 hdg(prev pt 2 div 1 hdg) renum R3 LA
Forfeiture orders
div 2.2 hdg(prev pt 2 div 2 hdg) renum R3 LA
Effect of forfeiture order on third parties
s 21am 2001 No 44 amdt 1.3287, amdt 1.3288
Pecuniary penalty orders
div 2.3 hdg(prev pt 2 div 3 hdg) renum R3 LA
Forfeiture in case of serious offence
div 2.4 hdg(prev pt 2 div 4 hdg) renum R3 LA
Recovery of property to which s 28 applies
s 29am 2001 No 44 amdt 1.3289, amdt 1.3290
Miscellaneous
div 2.5 hdg(prev pt 2 div 5 hdg) renum R3 LA
Establishment of trust fund
s 33am 1996 No 26 sch pt 26
Bank account
s 33Ains 1996 No 26 sch pt 26
Payments into trust fund
s 34am 1996 No 26 sch pt 26
Search powers
div 4.1 hdg(prev pt 4 div 1 hdg) renum R3 LA
Restraining orders
div 4.2 hdg(prev pt 4 div 2 hdg) renum R3 LA
Contravention of restraining orders
s 56am 1994 No 81 sch
Production orders
div 5.1 hdg(prev pt 5 div 1 hdg) renum R3 LA
Failure to comply with production order
s 66am 1994 No 81 sch
Search powers
div 5.2 hdg(prev pt 5 div 2 hdg) renum R3 LA
Monitoring orders
div 5.3 hdg(prev pt 5 div 3 hdg) renum R3 LA
Monitoring orders
s 69am 1994 No 81 sch
Existence and operation of monitoring order not to be disclosed
s 70am 1994 No 81 sch; 1997 No 96 sch 1
Obligations of financial institutions
div 5.4 hdg(prev pt 5 div 4 hdg) renum R3 LA
Retention of records by financial institutions
s 72am 1994 No 81 sch
Register of original documents
s 73am 1994 No 81 sch
Money laundering
div 6.1 hdg(prev pt 6 div 1 hdg) renum R3 LA
Money laundering
s 74am 1994 No 81 sch
Possession etc of property suspected of being proceeds of crime
s 75am 1994 No 81 sch
Organised fraud
div 6.2 hdg(prev pt 6 div 2 hdg) renum R3 LA
Organised fraud
s 76am 1994 No 81 sch
Miscellaneous
div 6.3 hdg(prev pt 6 div 3 hdg) renum R3 LA
Interstate restraining orders
div 7.1 hdg(prev pt 7 div 1 hdg) renum R3 LA
Interstate forfeiture orders
div 7.2 hdg(prev pt 7 div 2 hdg) renum R3 LA
Miscellaneous
div 7.3 hdg(prev pt 7 div 3 hdg) renum R3 LA
Dealings with forfeited property
s 89am 1994 No 81 sch
Approved forms
s 95sub 2001 No 44 amdt 1.3291
(4)-(7) exp 12 September 2002 (s 95 (7))
Regulation-making power
s 96ins 2001 No 44 amdt 1.3291
Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to the publication order.
Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Except for the footer, electronic and printed versions of an authorised republication are identical.
Republication No
Amendments to
Republication date
1 Act 1994 No 81 28 February 1995 2 Act 1999 No 33 30 September 1999 3 Act 2001 No 44 12 March 2002 4 A2001-44 13 September 2002
© Australian Capital Territory 2003
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