New South Wales Consolidated Acts

CRIMINAL ASSETS RECOVERY ACT 1990 - SECT 4

4 Definitions

(1) In this Act--

"account" means a facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for the following--

(a) a fixed term deposit or safety deposit box,

(b) the deposit or withdrawal of, or a transaction involving, digital currency, including a registrable digital currency exchange service.

"assets forfeiture notice" has the same meaning as in section 21C(1).

"assets forfeiture order" means an order made under section 22 and in force.

"authorised officer" means--

(a) the Commissioner for the New South Wales Crime Commission, or

(a1) an Assistant Commissioner for the New South Wales Crime Commission, or

(b) a member of the Police Force, or

(c) a person authorised in writing by the Commission, either generally or in a special case, to act as an authorised officer for the purposes of the provision in which the expression occurs.

"available interest relating to serious crime use property" means an interest in property that is an available interest relating to serious crime use property as provided by section 9B.

"Commission" means the New South Wales Crime Commission constituted under the Crime Commission Act 2012 .

"confiscation order" means an assets forfeiture order, proceeds assessment order or unexplained wealth order.

"corresponding law" means a law of the Commonwealth, another State or a Territory that is prescribed by the regulations as a law that corresponds to this Act.

"current or previous wealth" , of a person, means the amount equal to the sum of the values of the following, whether held within or outside New South Wales--

(a) all interests in property of the person,

(b) all interests in property subject to the effective control of the person,

(c) all interests in property that the person has expended, consumed or otherwise disposed of, whether by gift, sale or otherwise,

(d) a service, advantage or benefit provided for the person or, at the person's request or direction, to another person.

"dealing" , in relation to an interest in property, includes--

(a) if the interest is a debt--making a payment to any person in reduction of the amount of the debt, and

(b) removing the property in which the interest is held from New South Wales, and

(c) receiving or making a gift of the interest, and

(d) vesting the interest in a person in the course of administering the estate of a deceased person.

"dependant" in relation to a person means--

(a) a spouse or a de facto partner of the person, or

(b) a child, or a member of the household, of the person, dependent for support on the person.

"digital currency" has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth.

"director" , in relation to a financial institution or a corporation, includes--

(a) if the institution or corporation is a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory--a 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) except as provided by subsection (4), any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act.

"effective control" , in relation to an interest in property, includes effective control of the interest as provided by section 8.

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

"engaging in" includes having been engaged in.

"external serious crime related activity" means serious crime related activity arising out of an offence under the law of the Commonwealth or a place outside this State (including outside Australia) which, if the offence had been committed in this State, would be a serious criminal offence.

"financial institution" means the following, and includes a registrable digital currency exchange service--

(a) an authorised deposit-taking institution,

(b) a body corporate that is, or if it had been incorporated in Australia would be, a financial corporation within the meaning of the Commonwealth Constitution, section 51(xx).

"fraudulently acquired property" means an interest in property that is fraudulently acquired property as provided by section 9A.

"illegal activity" means--

(a) a serious crime related activity, or

(b) an act or omission that constitutes an offence (including a common law offence) against the laws of New South Wales or the Commonwealth, or

(c) an act or omission that occurs outside New South Wales, is an offence against the law of the place where it occurs and is of a kind that, if it had occurred in New South Wales, would have been an offence referred to in paragraph (b).

"illegally acquired property" means an interest in property that is illegally acquired property as provided by section 9.

"indictable quantity" means a quantity of a prohibited plant or a prohibited drug that is an indictable quantity under the Drug Misuse and Trafficking Act 1985 .

"interstate assets forfeiture order" means an order or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.

"interstate crime related property declaration" means a declaration or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.

"interstate proceeds assessment or unexplained wealth order" means an order or other instrument 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 or other instrument that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.

"interstate serious offence" means an offence (including a common law offence, where relevant) against the laws of another State, being an offence in relation to which an interstate assets forfeiture order, interstate crime related property declaration, interstate restraining order or interstate proceeds assessment or unexplained wealth order may be made under a corresponding law of the State.

"money" means money held by, or in the effective control of, a person, including in the form of cash or digital currency.

"monitoring order" means an order made under section 48 and in force.

"officer" means a director, secretary, executive officer or employee.

"owner" , in relation to an interest in property, includes a person who has effective control of the interest.

"premises" includes all or part of any structure, building, aircraft, vehicle, vessel and place (whether built on or not).

"proceeds" , in relation to an activity, includes any interest in property, and any service, advantage or benefit (including, without limitation, an increase in the value of an interest in property), that is derived or realised, directly or indirectly, as a result of the activity--

(a) by the person engaged in the activity, or

(b) by another person if the person engaged in the activity--

(i) intended for the other person to derive or realise (whether directly or indirectly) the interest, service, advantage or benefit, or

(ii) knew, or ought reasonably to have known, that the other person would be likely to derive or realise (whether directly or indirectly) the interest, service, advantage or benefit.

"Proceeds Account" means the Confiscated Proceeds Account established under section 32.

"proceeds assessment order" means an order made under section 27 and in force.

"production order" means an order made under section 33 and in force.

"prohibited drug" means a substance that is a prohibited drug under the Drug Misuse and Trafficking Act 1985 .

"prohibited plant" means a plant that is a prohibited plant under the Drug Misuse and Trafficking Act 1985 .

"property-tracking document" means a document, including a document in digital or electronic form, relevant to determining, identifying or locating one or more of the following--

(a) an interest in property of a person who might reasonably be suspected of engaging in a serious crime related activity,

(b) a document necessary for the transfer of an interest in property of a person who might reasonably be suspected of engaging in a serious crime related activity,

(c) an interest in property that might reasonably be suspected of being an interest that is serious crime derived property,

(d) a document necessary for the transfer of an interest in property that might be reasonably suspected of being an interest that is serious crime derived property,

(e) the current or previous wealth of a person that might reasonably be suspected of being unexplained wealth.

"registrable digital currency exchange service" has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth.

"restraining order" means an order made under section 10A and in force.

"rules of court" means rules of the Supreme Court.

"serious crime derived property" means an interest in property that is serious crime derived property as provided by section 9.

"serious crime related activity" means serious crime related activity referred to in section 6.

"serious crime use property" means property that is serious crime use property as provided by section 9B.

"serious criminal offence" --see section 6.

"substituted serious crime use property declaration" means a declaration under section 22AA.

"unexplained wealth" , of a person, means the whole or any part of the current or previous wealth of the person that is or was--

(a) illegally acquired property, or

(b) the proceeds of an illegal activity.

"unexplained wealth order" means an order made under section 28A and in force.

"working day" means any day that is not a Saturday, Sunday or a public holiday.

Note : The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(2) A reference in this Act to acquiring an interest in property for sufficient consideration is a reference to acquiring the interest for a consideration that, having regard solely to commercial considerations, reflects the value of the interest.

(3) A reference in this Act to a transaction of any kind (including sale, disposition, dealing and acquisition) includes a reference to a transaction outside New South Wales.

(4) For the purposes of this Act, a person is not to be regarded as being a director of a financial institution or corporation within the meaning of paragraph (c) of the definition of
"director" in subsection (1) just because the directors act on advice given by that person in the proper performance of the functions attaching to his or her professional capacity.

(5) If an expression used in this Act would ordinarily impose a duty, it is not to be construed in a particular case or particular cases as conferring a discretion.

(6) In this Act--

(a) a reference to a function includes a reference to a power, authority and duty, and

(b) a reference to the exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

(7) Notes included in this Act are explanatory notes and do not form part of this Act.