New South Wales Consolidated Acts

CRIMINAL ASSETS RECOVERY ACT 1990 - SECT 22AA

22AA Substituted serious crime use property declaration

(1) The Commission may apply to the Supreme Court for a substituted serious crime use property declaration against a person.

(2) A
"substituted serious crime use property declaration" is a declaration to the effect that an interest in property (or a combination of interests in properties) of a person who has engaged in serious crime related activity is available for forfeiture instead of serious crime use property that was used in, or in connection with, that activity.

(3) Any such application may be made--

(a) in conjunction with an application for a restraining order or assets forfeiture order, or

(b) in proceedings under section 24, 25 or 26, or

(c) at any other time.

(4) If the Commission applies for a substituted serious crime use property declaration in respect of an interest in property (or a combination of interests in properties) of a person--

(a) the Commission must give written notice of the application to the person and to any other person the Commission has reason to believe may have an interest in the property or properties concerned, and

(b) the person, and any other person who claims an interest in the property or properties concerned, may appear and adduce evidence at the hearing of the application, and

(c) the Supreme Court may, at any time before the final determination of the application, direct the Commission 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.

(5) The Supreme Court must make a substituted serious crime use property declaration against a person if the Court finds that it is more probable than not that--

(a) the person has engaged in serious crime related activity, and

(b) the activity has resulted in particular property becoming serious crime use property for the purposes of this Act, and

(c) the serious crime use property is not available for forfeiture as referred to in section 9B (3).

(6) When making a substituted serious crime use property declaration against a person, the Supreme Court is to--

(a) assess the value of the serious crime use property and specify its value in the declaration, and

(b) specify an interest in property (or a combination of interests in properties) of the person that the Court considers to be available for forfeiture instead of the serious crime use property.

(7) The value of the serious crime use property is to be assessed for the purposes of subsection (6) (a) by reference to its value at the time that the serious crime related activity concerned was engaged in.

(8) An interest in property (or combination of interests in properties) specified for the purposes of subsection (6) (b)--

(a) must not have a value (or a total combined value) that is greater than the value of the serious crime use property, and

(b) if it is practicable to do so, must be in relation to property of the same kind as the serious crime use property.

(9) If the Supreme Court makes a substituted serious crime use property declaration, the interest in property (or combination of interests in properties) specified in the declaration as being available for forfeiture instead of serious crime use property is to be treated as an available interest relating to serious crime use property for the purposes of this Act (including in connection with the making of assets forfeiture orders) in relation to the serious crime related activity concerned.