Northern Territory Explanatory Statements

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CRIMINAL PROPERTY FORFEITURE AMENDMENT BILL 2014

The purpose of the Bill is to clarify the operation of the crime-used property substitution declaration provisions of the Criminal Property Forfeiture Act and other matters arising from the judgement of the Full Court of the Supreme Court of the Northern Territory in the Director of Public Prosecutions v Green [2010] NTSC 16.

This Bill seeks to ensure the aims of the Criminal Property Forfeiture Act are fully realised and cannot be circumvented by criminals entering into agreements with innocent parties regarding property that is subsequently crime-used.

NOTES ON CLAUSES

Clause 1. Short Title.

This is a formal clause which provides for the citation of the Bill.
The Bill when passed may be cited as the Criminal Property Forfeiture Amendment Act 2014.

Clause 2. Commencement.

This Act will commence on a day fixed by the Administrator by Gazette notice.

Clause 3. Act amended.

This Act will amend the Criminal Property Forfeiture Act.

Clause 4. Section 5 amended

This clause inserts the definition of ‘agreement’. ‘Agreement’ is defined as a ‘tenancy, lease, hire agreement or contract’.
This definition is relevant for the amendments at clauses 6 and 7.

Clause 5. Section 81 amended

This clause amends section 81(2) by omitting the word ‘may’ and inserting the word ‘must’.

The amendment ensures that where a court is satisfied of matters stated in section 81(2), it must make a substitution declaration regarding property. The amendment only relates to a court making a declaration regarding the availability of property for substitution and the court still maintains its discretion when ordering the forfeiture of a respondent’s property sought in substitution under sections 98 and 101 of the Criminal Property Forfeiture Act.

Clause 6. Section 82 amended.

This clause amends section 82 by omitting section 82(a) and inserting

‘(a) at the time the property became crime-used, the respondent:

i. had a legal or equitable interest in the property through an agreement granted by another person who is an innocent party in relation to the property; or

ii. had a right of occupancy, use or possession of the property through an agreement granted by another person who is an innocent party in relation to the property; or

iii. did not have effective control of the property; or’

Clause 7. Section 85 amended.

Clause 7 inserts a new subsection (3) in section 85. The new subsection clarifies that ‘In this section, the value of crime-used property is the freehold value of the real property or the full value of other property and not the value of an interest in the property under an agreement.’

Currently, property of equivalent value is not defined and the term can be interpreted in a number of ways, including the value of an interest under an agreement (for example the value of a lease). Clause 7 amends section 85 of the Criminal Property Forfeiture Act to ensure the value of crime-used property substituted is the freehold value of real property that is crime-used or the full value of other property that is crime-used and not the value of an interest in the crime-used property under an agreement.

Clause 8. Part 14 inserted.

Clause 8 inserts a transitional provision for this Bill.
The transitional provision notes that the Criminal Property Forfeiture Act, as amended by this Act, applies only in relation to proceedings commenced after the commencement of these amendments.

The Criminal Property Forfeiture Act, as in force prior to the commencement of this Act, will continue to apply to proceedings commenced before the commencement of these amendments.

Clause 9. Expiry of Act.

This clause notes that this Act expires the day after is commences.

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