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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Serious and Organised Crime (Unexplained Wealth)
Bill 2009
A BILL FOR
An Act to provide for the making and enforcement of unexplained wealth
orders; to make related amendments to the Criminal Assets Confiscation
Act 2005; and for other purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Interpretation
4 Meaning of effective
control
5 Extra-territorial operation
6 Criminal intelligence
7 Role of
Crown Solicitor
Part 2—Unexplained wealth
orders
8 Determining the value of property and
benefits
9 Unexplained wealth orders
10 Appeals to Supreme Court
Part 3—Investigative and enforcement
powers
Division 1—Preliminary
11 Application of
Part
12 Limitation on exercise of powers and functions under Part
Division 2—Investigative notices, orders and
warrants
13 Notices to deposit holders
14 Monitoring
orders
15 Orders for obtaining information
16 Warrants
17 Powers
conferred by warrant
18 Exercise of jurisdiction
Division 3—Enforcement powers
19 Enforcement
of unexplained wealth orders
20 Restraining orders
21 Refusal to make an
order for failure to give undertaking
22 Form of restraining
order
23 Notice of restraining order
24 Right of objection
25 Variation
or revocation of restraining order
26 Appeals to Supreme
Court
27 Cessation of restraining order
28 Contravention of restraining
order
Division 4—General provisions relating to
investigative and enforcement powers
29 Representation of Commissioner
of Police
30 Ex parte proceedings
31 Immunity from liability
32 Making
false or misleading statements
33 Failing to comply with notice or
order
Part 4—Reviews and expiry of Act
34 Annual
review and report as to exercise of powers
35 Review of operation of
Act
36 Expiry of Act
Part 5—Miscellaneous
37 Manner of giving
notices
38 Immunity from liability
39 Protection from proceedings
etc
40 Proceedings under Act are civil proceedings
41 Ancillary
orders
42 Consent orders
43 Costs
44 Credits to Victims of Crime
Fund
45 Regulations
Schedule 1—Related amendments
Part 1—Preliminary
1 Amendment
provisions
Part 2—Amendment of Criminal Assets Confiscation
Act 2005
2 Insertion of section
8A
8A Certain property and benefits not subject to proceedings
under Act
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Serious and Organised Crime (Unexplained
Wealth) Act 2009.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
benefit includes a service or advantage;
corresponding unexplained wealth order means an order made
under a law of another State, a Territory or the Commonwealth that is of a kind
declared by the regulations to be within this definition;
criminal intelligence means information relating to actual or
suspected criminal activity (whether in this State or elsewhere) the disclosure
of which could reasonably be expected to prejudice criminal investigations, to
enable the discovery of the existence or identity of a confidential source of
information relevant to law enforcement or to endanger a person's life or
physical safety;
deposit holder means—
(a) an ADI; or
(b) a friendly society; or
(c) an organisation that holds money in accounts on behalf of other
persons; or
(d) a person who carries on business as a pawnbroker; or
(e) an institution of a kind declared by regulation to be a deposit
holder;
effective control—see section 4;
executive officer, in relation to a deposit holder or a
corporation, means any person, by whatever name called and whether or not the
person is a director of the deposit holder or corporation, who is concerned, or
takes part, in the management of the deposit holder or corporation;
gift includes a transaction (other than a transaction entered
into in the ordinary course of trade or commerce) under which a person acquires
property for less than a commercially adequate consideration;
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;
premises means any land, building, structure, vehicle, vessel
or aircraft;
property means real or personal property (tangible or
intangible) including—
(a) a chose in action; and
(b) an interest in property;
restraining order means an order made under
section 20;
safe custody facility includes any facility or arrangement
through which a deposit holder accepts deposits or allows withdrawals and any
other facility through which a deposit holder holds property on behalf of a
person;
unexplained wealth order means an order made under
section 9;
wealth of a person consists of the following:
(a) all property that the person owns or has previously owned (including
property acquired by the person before the commencement of this Act);
(b) all other benefits that the person has at any time acquired (including
benefits acquired by the person before the commencement of this Act);
(c) all property that is, or has previously been, subject to the person's
effective control (including property that became subject to the person's
effective control before the commencement of this Act).
(2) For the purposes of this Act, property that is or has been subject to
the effective control of a person will be taken to have been
acquired by that person when the property became subject to the
effective control of the person.
4—Meaning
of effective control
(1) For the purposes of this Act, the following principles apply when
determining whether property is subject to the effective control
of a person:
(a) property may be subject to the effective control of a person whether
or not the person has an interest in the property;
(b) property that is held on trust for the ultimate benefit of a person is
taken to be subject to the effective control of the person;
(c) if a person is 1 of 2 or more beneficiaries under a
discretionary trust, the following undivided proportion of the trust property is
taken to be subject to the effective control of the person:
(d) property may be subject to the effective control of a person even if
1 or more other persons have joint control of the property.
(2) In determining whether or not property is subject to the effective
control of a person, regard may be had to—
(a) securities (within the meaning of section 92 of the
Corporations Act 2001 of the Commonwealth) in, or directorships of, a
company that has an interest (whether direct or indirect) in the property;
and
(b) a trust that has a relationship to the property; and
(c) family, domestic and business relationships between persons having an
interest in the property, or in companies of the kind referred to in
paragraph (a) or trusts of the kind referred to in paragraph (b), and
other persons.
It is the intention of the Parliament that this Act apply within the State
and outside the State to the full extent of the extra-territorial legislative
capacity of the Parliament.
(1) No information provided by the Commissioner of Police to the Crown
Solicitor for the purposes of this Act may be disclosed to any person (except to
the Attorney-General, a court, a person conducting a review under Part 4 or a
person to whom the Commissioner of Police authorises its disclosure) if the
information is classified by the Commissioner of Police as criminal
intelligence.
(2) In any proceedings under this Act, the court determining the
proceedings—
(a) must, on the application of the Commissioner of Police, take steps to
maintain the confidentiality of information classified by the Commissioner of
Police as criminal intelligence, including steps to receive evidence and hear
argument about the information in private in the absence of the parties to the
proceedings and their representatives; and
(b) may take evidence consisting of, or relating to, information that is
so classified by the Commissioner of Police by way of affidavit.
(3) The Commissioner of Police may not delegate the function of
classifying information as criminal intelligence for the purposes of this Act
except to a Deputy Commissioner or Assistant Commissioner of Police.
For the avoidance of doubt, where this Act specifies that a power or
function is to be exercised by the Crown Solicitor, the Crown Solicitor
exercises an independent discretion in relation to that power or function and
does not act on the instructions of any other person or body.
Part
2—Unexplained wealth orders
8—Determining the
value of property and benefits
The following provisions apply when determining the value of any property
or benefits for the purposes of this Part:
(a) the value of any property or benefit that has been disposed of, used,
consumed or is for any other reason no longer available will be taken to
be—
(i) the value of the property or benefit at the time it was acquired;
or
(ii) the value of the property or benefit immediately before it was
disposed of, used, consumed or otherwise ceased to be available,
whichever is the higher;
(b) the value of any other property or benefit will be taken to
be—
(i) the value of the property or benefit at the time it was acquired;
or
(ii) the value of the property or benefit on the day that the application
for an unexplained wealth order was made,
whichever is the higher.
(1) If the Crown Solicitor reasonably suspects that a person has wealth
that has not been lawfully acquired, the Crown Solicitor may make an application
to the District Court under this section.
(2) If, on an application by the Crown Solicitor under this section, the
Court finds that any components of a person's wealth specified in the
application have not been lawfully acquired, the Court may make an order (an
unexplained wealth order) that the person pay to the Crown a
specified amount.
(3) If the Court makes findings as to a person's wealth as specified in
subsection (2), the Court should make an unexplained wealth order
specifying an amount equal to the value of those components of the person's
wealth that have not been lawfully acquired unless the Court determines that it
would be manifestly unjust to make such an order (in which case the Court may
reduce the amount payable or decline to make the order, as the Court thinks
fit).
(4) The application—
(a) must specify with sufficient particularity the components of the
person's wealth to which the application relates; and
(b) subject to subsection (6), must be served on the person and on
any other persons that should, in the opinion of the Court, be served with the
application.
(5) The Court may allow the Crown Solicitor to subsequently vary the
components of the person's wealth specified in the application (and may, in such
a case, make any consequential orders as to service of the application as so
varied that the Court thinks fit).
(6) The Court may hear and determine an application in the absence of a
party if—
(a) the Court is satisfied that the person cannot be found; or
(b) the person fails to appear after being given reasonable notice of the
application.
(7) For the purposes of this section, each component of a person's wealth
specified in the application will be presumed not to have been lawfully acquired
unless the person proves otherwise.
(8) Property or a benefit that has been acquired by a person on the
payment of any consideration will only be taken to have been lawfully acquired
by the person for the purposes of this Part if the consideration given for the
property or benefit was lawfully acquired.
(9) Property or a benefit that has been acquired by a person as a prize or
as the proceeds of any form of gaming will only be taken to have been lawfully
acquired by the person for the purposes of this Part if any money or other item
of value used by the person for the purposes of entering the prize draw or for
the purposes of the gaming (as the case may be) was lawfully acquired.
(10) Property or a benefit that has been acquired by a person as a gift or
on the distribution of the estate of a deceased person will only be taken to
have been lawfully acquired for the purposes of this Part if the donor of the
gift or the deceased person (as the case may be) lawfully acquired the property
or benefit.
(11) If, in determining an application under this section relating to
wealth of a person, the Court is satisfied—
(a) that it is not reasonably possible for the person to establish that a
component of his or her wealth was lawfully acquired (due to the effluxion of
time, the circumstances in which that component was acquired or any other
reason); and
(b) that the person has acted in good faith,
the Court may determine that that component should be excluded from the
application.
(12) The Court must not make an unexplained wealth order relating
to—
(a) property that has been forfeited under any Act or law (whether of the
State or another jurisdiction); or
(b) property or benefits in respect of which a pecuniary penalty order has
been made against the person under the Criminal Assets Confiscation
Act 2005; or
(c) literary proceeds in respect of which a literary proceeds order has
been made against the person under the Criminal Assets Confiscation
Act 2005; or
(d) property or benefits that have comprised (wholly or in part) the basis
for a previous unexplained wealth order, or a corresponding unexplained wealth
order.
(1) The Crown Solicitor or a person subject to an unexplained wealth order
may appeal to the Supreme Court against a decision of the District Court on an
application under this Part.
(2) An appeal lies as of right on a question of law and with permission on
a question of fact.
(3) An appeal must be commenced within the time, and in accordance with
the procedure, prescribed by rules of the Supreme Court.
(4) On an appeal, the Supreme Court may—
(a) confirm, vary or revoke the decision subject to appeal; and
(b) make any ancillary orders that the Supreme Court considers
appropriate.
Part
3—Investigative and enforcement powers
Subject to this Part, the powers and functions specified in this Part may
be exercised for the purpose of investigating, or restraining, wealth of a
person either before or after an unexplained wealth order, or an application for
an unexplained wealth order, has been made against the person.
12—Limitation
on exercise of powers and functions under Part
(1) Powers and functions under this Part may not be exercised before an
unexplained wealth order has been made unless—
(a) the powers and functions are exercised for the purpose of
investigating, or restraining, wealth of a person who—
(i) has been convicted of a serious offence or declared liable to
supervision under Part 8A of the Criminal Law Consolidation
Act 1935 in relation to a charge of a serious offence; or
(ii) is, or has been, the subject of a control order; or
(b) the Crown Solicitor has authorised the exercise of those powers or
functions.
(2) The Crown Solicitor may not authorise the exercise of powers and
functions under this Part unless satisfied that the powers and functions are to
be exercised for the purpose of investigating, or restraining, wealth of a
person who the Crown Solicitor reasonably suspects of being—
(a) a person who engages or has engaged in serious criminal activity;
or
(b) a person who regularly associates, or has regularly associated, with
persons who engage, or have engaged, in serious criminal activity; or
(c) a person who is, or has been, a member of an organisation that is, at
the time at which the authorisation of the Crown Solicitor is sought, a declared
organisation; or
(d) a person who has acquired property or a benefit as a gift from a
person of a kind referred to in paragraph (a), (b) or (c) or on the
distribution of the estate of a deceased person who was a person of a kind
referred to in paragraph (a), (b) or (c).
(3) Information provided to the Crown Solicitor under this section must
not be disclosed to any person (except to the Attorney-General, a person
conducting a review under Part 4 or a person to whom the Commissioner authorises
its disclosure).
(4) An authorisation given by the Crown Solicitor under this section
lapses 3 years after the date on which it was given.
(5) In any proceedings—
(a) a certificate of the Crown Solicitor certifying that the exercise of
powers or functions under this Part has been authorised in accordance with this
section is conclusive evidence of the matters so certified; and
(b) an apparently genuine document purporting to be a certificate of the
Crown Solicitor under this subsection is to be accepted in any proceedings as
such a certificate in the absence of proof to the contrary.
(6) The Crown Solicitor may not delegate any powers or functions of the
Crown Solicitor under this section.
(7) A court must not determine proceedings under this Part unless
satisfied that the proceedings—
(a) relate to investigating, or restraining, wealth of a person in
relation to whom an unexplained wealth order has been made; or
(b) are authorised under this section.
(8) In this section—
control order means a control order under the Serious and
Organised Crime (Control) Act 2008;
declared organisation has the same meaning as in the
Serious and Organised Crime (Control) Act 2008;
member, in relation to a declared organisation, has the same
meaning as in the Serious and Organised Crime (Control)
Act 2008;
serious criminal activity means the commission of serious
offences;
serious offence has the same meaning as in the Criminal
Assets Confiscation Act 2005.
Division
2—Investigative notices, orders and warrants
(1) A police officer of or above the rank of Superintendent may give a
written notice to a deposit holder requiring the deposit holder to provide to
the Commissioner of Police any information or documents relevant to any of the
following:
(a) determining whether an account is held by a specified person with the
deposit holder;
(b) determining whether a specified person is a signatory to an
account;
(c) if a person holds an account with the deposit holder—the current
balance of the account;
(d) determining whether any related accounts are held with the deposit
holder and the names of those who hold those accounts.
(2) A notice must—
(a) state that the notice is given under this Act; and
(b) specify the information or documents required to be provided;
and
(c) specify the form and manner in which the information or documents are
to be provided; and
(d) state that the information or documents must be provided within
14 days of the day on which the notice was given; and
(e) if the notice specifies that information about the notice must not be
disclosed—set out the effect of subsection (3) and (4); and
(f) set out the effect of section 33.
(3) If a notice given to a deposit holder under this section specifies
that information about the notice must not be disclosed, a person who
either—
(a) discloses the existence or nature of the notice to another person;
or
(b) discloses information to another person from which the other person
could infer the existence or nature of the notice,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(4) Subsection (3) does not apply if the disclosure—
(a) is necessary to comply with the notice; or
(b) is made for the purpose of obtaining legal advice or legal
representation in relation to the notice; or
(c) is made for the purposes of, or in the course of, legal
proceedings.
(1) A court may, on application by the Commissioner of Police make an
order (a monitoring order) requiring a deposit holder to report,
as soon as practicable, transactions of a kind specified in the order relevant
to identifying, tracing, locating or valuing a person's wealth.
(2) An application to a court under this section must be accompanied by an
affidavit that specifies how the transactions to which the application relates
are relevant to identifying, tracing, locating or valuing a person's
wealth.
(3) A monitoring order must—
(a) specify the kind of information the deposit holder is required to
give; and
(b) specify the form and manner in which the information is to be given;
and
(c) set out the effect of subsection (6) and (7); and
(d) set out the effect of section 33.
(4) Subject to subsection (5), a monitoring order remains in force
for a period of not more than 6 months specified in the
order.
(5) A court that has made a monitoring order may, on application by the
Commissioner of Police or the deposit holder, extend, vary or revoke the
order.
(6) If a monitoring order is made, a person who—
(a) discloses the existence or nature of the order to another person;
or
(b) discloses information to another person from which the other person
could infer the existence or nature of the order,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(7) Subsection (6) does not apply if the disclosure—
(a) is authorised by the order; or
(b) is necessary to comply with the order; or
(c) is made for the purpose of obtaining legal advice or legal
representation in relation to the order; or
(d) is made for the purposes of, or in the course of, legal
proceedings.
15—Orders for
obtaining information
(1) A court may, on application by the Commissioner of Police, make an
order of 1 or both of the following kinds:
(a) an order requiring a person to give oral or affidavit evidence to the
court on questions relevant to identifying, tracing, locating or valuing a
person's wealth;
(b) an order requiring a person to produce before the court documents or
other materials relevant to identifying, tracing, locating or valuing a person's
wealth.
(2) An application to a court under this section must be accompanied by an
affidavit that specifies how the evidence, documents or materials to which the
application relates are relevant to identifying, tracing, locating or valuing a
person's wealth.
(3) If a person is ordered to give evidence or to produce documents or
other materials under this section, the Commissioner of Police must ensure that
a copy of the order is served on the person, in accordance with any directions
of the court, and that the person is advised that the order was made under this
section.
(4) A person ordered to give evidence or to produce documents or other
materials may not refuse to give the evidence, or to produce documents or
materials, on the ground that the evidence, or the contents of the documents or
materials, would tend to incriminate the person of an offence, but evidence so
given or documents or materials so produced cannot be used against that person
in proceedings in which that person is charged with an offence (other than
proceedings for an offence the basis of which is a charge that the person
knowingly provided false or misleading information in the evidence so given or
the documents or materials so produced).
(5) If a person is ordered to give evidence or to produce documents or
other materials under this section, the court may order the Crown to pay the
person's legal costs in connection with complying with that order (which may be
costs as between solicitor and client) or such part of those costs as is
determined by the court.
(1) A court may, on application by the Commissioner of Police, issue a
warrant authorising—
(a) the seizure of a document or article relevant to identifying, tracing,
locating or valuing a person's wealth;
(b) the search of a particular person, or particular premises, and the
seizure of documents and articles of a kind referred to in paragraph (a)
found in the course of the search.
(2) Subject to this section, an application to a court under this section
must be accompanied by an affidavit that specifies—
(a) in the case of a warrant referred to in
subsection (1)(a)—how the documents and articles to which the
application relates are relevant to identifying, tracing, locating or valuing a
person's wealth; or
(b) in the case of a warrant referred to in
subsection (1)(b)—why it is believed that the person or premises to
which the application relates might have or contain documents or articles
relevant to identifying, tracing, locating or valuing a person's
wealth.
(3) An application for a warrant may be made to a judicial officer of a
court by telephone if, in the opinion of the applicant, a warrant is urgently
required and there is not enough time to make the application
personally.
(4) If an application for a warrant is made by telephone—
(a) the applicant must inform the judicial officer that he or she is
acting on behalf of the Commissioner of Police, and the judicial officer, on
receiving that information, is entitled to assume, without further inquiry, that
the applicant is so acting; and
(b) the applicant must inform the judicial officer—
(i) in the case of a warrant referred to in
subsection (1)(a)—how the documents and articles to which the
application relates are relevant to identifying, tracing, locating or valuing a
person's wealth; or
(ii) in the case of a warrant referred to in
subsection (1)(b)—why it is believed that the person or premises to
which the application relates might have or contain documents or articles
relevant to identifying, tracing, locating or valuing a person's wealth;
and
(c) if it appears to the judicial officer from the information given by
the applicant that there are proper grounds to issue a warrant, the judicial
officer must inform the applicant of the facts that justify, in the judicial
officer's opinion, the issue of the warrant, and must not proceed to issue the
warrant unless the applicant undertakes to make an affidavit verifying those
facts; and
(d) if the applicant gives such an undertaking, the judicial officer may
then make out and sign a warrant, noting on the warrant the facts that justify,
in the opinion of the judicial officer, the issue of the warrant; and
(e) the warrant is taken to have been issued, and comes into force, when
signed by the judicial officer; and
(f) the judicial officer must inform the applicant of the terms of the
warrant; and
(g) the applicant must fill out and sign a warrant form (the
duplicate warrant) that—
(i) sets out the name of the judicial officer who issued the original and
the terms of the warrant; and
(ii) complies with any other requirements prescribed by regulation;
and
(h) the applicant must, as soon as practicable after the issue of the
warrant, forward to the judicial officer an affidavit verifying the facts
referred to in paragraph (c) and a copy of the duplicate warrant.
(5) A judicial officer by whom a warrant is issued must file the warrant,
or a copy of the warrant, and the affidavit verifying the facts referred to in
subsection (4)(c), in the relevant court.
17—Powers
conferred by warrant
(1) A warrant authorises any police officer, with assistants the officer
considers necessary—
(a) to seize documents and other articles relevant to identifying,
tracing, locating or valuing a person's wealth referred to in the
warrant;
(b) if the warrant authorises the search of a person—to search that
person and seize anything suspected on reasonable grounds to be a document or
other article relevant to identifying, tracing, locating or valuing a person's
wealth;
(c) if the warrant authorises the search of premises—to enter and
search the premises and anything in the premises and seize anything suspected on
reasonable grounds to be a document or other article relevant to identifying,
tracing, locating or valuing a person's wealth.
(2) A warrant must not be executed between the hours of 7 o'clock in
the evening and 7 o'clock in the following morning unless the judicial
officer by whom the warrant is issued expressly authorises its execution between
those hours.
(3) A police officer, or a person assisting a police officer, may use such
force as is reasonably necessary for the execution of the warrant.
(4) A police officer who executes a warrant—
(a) must prepare a notice in the prescribed form
containing—
(i) the officer's name and rank; and
(ii) the name of the judicial officer who issued the warrant and the date
and time of its issue; and
(iii) a description of anything seized under the warrant; and
(b) must, as soon as practicable after execution of the
warrant—
(i) in the case of a warrant authorising search of a person—give the
notice to the person;
(ii) in any other case—give the notice to the occupier of the
premises or leave it in a prominent position on those premises.
(5) A warrant, if not executed at the expiration of 1 month from the
date of its issue, then expires.
The jurisdiction of a court under this Division may be exercised by a
judicial officer sitting in chambers.
19—Enforcement
of unexplained wealth orders
(1) If an amount payable under an unexplained wealth order remains unpaid
21 days after the making of the order, the order may be enforced under the
Enforcement of Judgments Act 1991.
(2) If—
(a) a person is subject to an unexplained wealth order; and
(b) the Commissioner of Police applies to a court for an order under this
subsection; and
(c) the court is satisfied that particular property is subject to the
effective control of the person,
the court may make an order declaring that the whole, or a specified part,
of that property is to be taken to be property of the person for the purposes of
the Enforcement of Judgments Act 1991.
(3) The Commissioner of Police must, on applying for an order under
subsection (2) relating to particular property, give written notice of the
application to—
(a) the person who is subject to the unexplained wealth order;
and
(b) any person whom the Commissioner of Police has reason to believe may
have an interest in the property; and
(c) any other persons that should, in the opinion of the court, be given
notice of the application.
(4) The person who is subject to the unexplained wealth order, and any
person who claims an interest in the property, may appear and adduce evidence at
the hearing of the application.
(1) A court may, on application by the Commissioner of Police, make an
order (a restraining order) preventing—
(a) the disposal of specified property; or
(b) specified kinds of transactions involving safe custody
facilities,
except in the manner and circumstances, if any, specified in the
order.
(2) A court may only make a restraining order if satisfied that the order
is reasonably necessary to ensure payment of an amount that is, or may become,
payable under an unexplained wealth order (and the application for the order
must be accompanied by an affidavit setting out matters that would justify such
a finding).
(3) A restraining order may be subject to such conditions as the court
thinks fit.
(4) In determining whether or not to make a restraining order, or the
terms of a restraining order, the court must have regard to any serious hardship
that may be caused to any person as a result of the order.
21—Refusal
to make an order for failure to give undertaking
(1) A court may refuse to make a restraining order if the Crown refuses or
fails to give the court an appropriate undertaking with respect to the payment
of any costs that may be awarded against the Crown in accordance with
section 43.
(2) The Commissioner of Police may give such an undertaking on behalf of
the Crown.
(1) A restraining order must—
(a) set out the terms of the order; and
(b) subject to subsection (2)—include a statement of the
court's reasons for issuing the order; and
(c) if the order was made on an application made without notice to any
person—set out an explanation of the right of objection under
section 24.
(2) A statement of the court's reasons for issuing the order must not
contain information that must not be disclosed in accordance with
section 6.
(3) A copy of the affidavit that accompanied the application for the order
must be attached to the restraining order unless disclosure of information
included in the affidavit would be in breach of section 6.
(4) If disclosure of information included in the affidavit would be in
breach of section 6, an edited copy of the affidavit, from which the
information that cannot be disclosed has been removed or erased, may be attached
to the restraining order.
23—Notice
of restraining order
(1) If a court makes a restraining order prohibiting the disposal of
property, the Commissioner of Police should give written notice of the order
(including a copy of the order) to—
(a) the person who is the owner of the property; and
(b) any person who has an interest in the property; and
(c) any other persons that should, in the opinion of the court, be given
notice of the order.
(2) If a court makes a restraining order prohibiting transactions, the
Commissioner of Police should give written notice of the order (including a copy
of the order) to—
(a) the relevant deposit holder; and
(b) any person who, but for the prohibition in the restraining order,
would have had a legal entitlement to enter into the transaction; and
(c) any other persons that should, in the opinion of the court, be given
notice of the order.
(3) For the purposes of this section, written notice of an order will be
taken to have been given to a deposit holder or a corporation if it is given to
an executive officer of the deposit holder or corporation (as the case
requires).
(1) If a restraining order is made on an application made without notice
to any person, a person who has been, or should have been, given notice of the
order under section 23 may lodge a notice of objection with the court that
made the order within 14 days after becoming aware of the making of the
order (or such longer period as the court may allow).
(2) The grounds of the objection must be stated fully and in detail in the
notice of objection.
(3) A copy of the notice of objection must be served by the objector on
the Commissioner of Police by registered post at least 7 days before the
day appointed for hearing of the notice.
(4) The court must, when determining a notice of objection, consider
whether, in the light of the evidence presented by both the Commissioner of
Police and the objector, sufficient grounds existed for the making of the
restraining order.
(5) The court may, on hearing a notice of objection—
(a) confirm, vary or revoke the restraining order; and
(b) make any other orders of a kind that could have been made by the court
on the making of the restraining order.
25—Variation or
revocation of restraining order
(1) A court may vary or revoke a restraining order made by the court on
application—
(a) by the Commissioner of Police; or
(b) by a person who was, or should have been, given notice of the order
under section 23.
(2) An application for variation or revocation of a restraining order may
only be made by a person referred to in subsection (1)(b) with the
permission of the court.
(3) The court must, before varying or revoking a restraining order under
this section, allow all parties a reasonable opportunity to be heard on the
matter.
(4) If an application for variation or revocation of a restraining order
is made in order to allow the payment of legal costs of a person, the court may
only vary or revoke the order if satisfied that the person has no other source
of funds (within or outside the State) to which he or she could reasonably have
recourse for the legal costs.
(1) The Commissioner of Police or a person who has been, or should have
been, given notice of an order under section 23 may appeal to the Supreme
Court against a decision of a court under this Division.
(2) An appeal lies as of right on a question of law and with permission on
a question of fact.
(3) An appeal must be commenced within the time, and in accordance with
the procedure, prescribed by rules of the Supreme Court.
(4) The commencement of an appeal under this section does not affect the
operation of the restraining order to which the appeal relates.
(5) On an appeal, the Supreme Court may confirm, vary or reverse the
decision appealed against.
27—Cessation of
restraining order
(1) A restraining order, of a kind referred to in section 20(1)(a),
relating to property will be taken to have been discharged—
(a) in a case where no unexplained wealth order had been made when the
restraining order was made—if 1 or more of the following
occurs:
(i) no application is made, within 21 days after the making of the
restraining order, for an unexplained wealth order against an owner of the
property, or a person who effectively controls the property;
(ii) where application is made, within 21 days after the making of
the restraining order, for an unexplained wealth order against an owner of the
property, or a person who effectively controls the property—that
application is withdrawn;
(iii) the District Court refuses an application to make an unexplained
wealth order against an owner of the property, or a person who effectively
controls the property; or
(b) in any other case—if 1 or more of the following
occurs:
(i) the unexplained wealth order is satisfied;
(ii) the property is sold or disposed of to satisfy the unexplained wealth
order;
(iii) the unexplained wealth order is revoked, discharged or otherwise
ceases to have effect.
(2) A restraining order, of a kind referred to in section 20(1)(b),
relating to transactions will be taken to have been discharged—
(a) in a case where no unexplained wealth order had been made when the
restraining order was made—if 1 or more of the following
occurs:
(i) no application is made, within 21 days after the making of the
restraining order, for an unexplained wealth order against any person who has
the legal authority to engage in the transactions;
(ii) where application is made, within 21 days after the making of
the restraining order, for an unexplained wealth order against a person who has
the legal authority to engage in the transactions—that application is
withdrawn;
(iii) the District Court refuses an application to make an unexplained
wealth order against a person who has the legal authority to engage in the
transactions; or
(b) in any other case—if 1 or more of the following
occurs:
(i) the unexplained wealth order is satisfied;
(ii) the unexplained wealth order is revoked, discharged or otherwise
ceases to have effect.
28—Contravention
of restraining order
(1) A person is guilty of an offence if the person, knowing of the
existence of a restraining order—
(a) deals with or permits a dealing with property that is subject to the
order; or
(b) engages in, facilitates or permits a transaction that is subject to
the order,
contrary to the terms of the order.
Maximum penalty: $20 000 or imprisonment for 4 years.
(2) A person is guilty of an offence if—
(a) the person deals with or permits a dealing with property, or engages
in, facilitates or permits a transaction, subject to a restraining order;
and
(b) by so doing, contravenes the order (whether or not the person knows or
is reckless as to that fact); and
(c) the person was given notice of the order under
section 23.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) A dealing with property or a transaction contrary to this section is
void against anyone except a person who acquires an interest in property in good
faith for value and without notice of the terms of the order.
(4) This section does not limit the jurisdiction of the Court to deal with
a contravention of a restraining order as a contempt of court.
Division 4—General
provisions relating to investigative and enforcement powers
29—Representation
of Commissioner of Police
In proceedings under this Part, the Commissioner of Police may be
represented—
(a) by a police officer; or
(b) by counsel.
A court may make an order under this Part on an application made without
notice to any person.
No liability attaches to a person in relation to any action taken by the
person under a notice or order under this Part or in the mistaken belief that
action was required under a notice or order under this Part.
32—Making false or
misleading statements
A person who knowingly or recklessly makes a false or misleading statement
(whether orally, in a document or in any other way) in, or in connection with, a
notice or order under this Part is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
33—Failing
to comply with notice or order
A person who refuses or fails to comply with a notice or order under this
Part is guilty of an offence.
Maximum penalty: $5 000 or imprisonment for 1 year.
Part
4—Reviews and expiry of Act
34—Annual
review and report as to exercise of powers
(1) The Attorney-General must, before 1 July in each year (other than
the calendar year in which this section comes into operation), appoint a retired
judicial officer to conduct a review to determine whether powers under this Act
were exercised in an appropriate manner during the period of 12 months
preceding that 1 July.
(2) The Attorney-General, the Crown Solicitor and the Commissioner of
Police must ensure that a person appointed to conduct a review is provided with
such information as he or she may require for the purpose of conducting the
review.
(3) A person conducting a review must maintain the confidentiality of
information provided to the person that is classified by the Commissioner of
Police as criminal intelligence.
(4) A report on a review must be presented to the Attorney-General on or
before 30 September in each year.
(5) The Attorney-General must, within 12 sitting days after receipt
of a report under this section, cause copies of the report to be laid before
each House of Parliament.
(6) In this section—
judicial officer means a person appointed as a judge of the
Supreme Court or the District Court or a person appointed as judge of
another State or Territory or of the Commonwealth.
(1) The Attorney-General must, as soon as practicable after the fourth
anniversary of the commencement of this section, conduct a review of the
operation and effectiveness of this Act.
(2) The Attorney-General, or any person conducting the review on behalf of
the Attorney-General, must maintain the confidentiality of information provided
to the Attorney-General or other person that is classified by the Commissioner
of Police as criminal intelligence.
(3) The Attorney-General must prepare a report based on the review and
must, within 12 sitting days after the report is prepared, cause copies of
the report to be laid before each House of Parliament.
This Act will expire 10 years after the date on which this section
comes into operation.
A notice, order or other document required or authorised by this Act to be
given to or served on a person may be given or served—
(a) by delivering it personally to the person or an agent of the person;
or
(b) by leaving it for the person at the person's place of residence or
business with someone apparently over the age of 16 years; or
(c) by posting it to the person or an agent of the person at the person's
or agent's last known place of residence or business; or
(d) in any other manner prescribed by regulation.
Except as specifically provided in this Act, no civil or criminal liability
attaches to—
(a) the Attorney-General, the Solicitor-General, the Commissioner of
Police or any other person exercising powers and functions under this Act;
or
(b) the Crown,
in respect of an act or omission in good faith in the exercise or
discharge, or purported exercise or discharge, of a power, function or duty
conferred or imposed by or under this Act.
39—Protection from
proceedings etc
(1) No proceeding for judicial review or for a declaration, injunction,
writ, order or other remedy may be brought to challenge or
question—
(a) a decision or determination, or purported decision or determination,
of the Crown Solicitor under this Act; or
(b) procedures adopted by the Crown Solicitor under this Act or
purportedly adopted by the Crown Solicitor under this Act; or
(c) an act, omission, matter or thing incidental or relating to the
operation of this section.
(2) The Crown Solicitor is not required to provide procedural fairness in
exercising a discretion under this Act.
40—Proceedings
under Act are civil proceedings
Except in relation to an offence under this Act—
(a) proceedings under this Act are civil proceedings; and
(b) 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; and
(c) the rules of construction applicable only in relation to the criminal
law do not apply in the interpretation of this Act; and
(d) the rules of evidence applicable in civil proceedings apply to
proceedings under this Act.
(1) A court may, when making an order under this Act or at any later time,
make any ancillary orders that the court considers appropriate.
(2) Without limiting subsection (1), the court may make an ancillary
order requiring that information about an order not be disclosed to a particular
person or class of persons.
A court may make an order in proceedings under this Act with the consent of
the parties to the proceedings (and such an order may be made without
consideration of the matters that the court would otherwise be obliged to
consider in the proceedings).
A court may, if—
(a) a person brings, or appears at, civil proceedings under this Act;
and
(b) the person is successful in those proceedings or in any aspect of
those proceedings,
order the Crown to pay the person legal costs in connection with the
proceedings (which may be costs as between solicitor and client) or such part of
those costs as is determined by the court.
44—Credits
to Victims of Crime Fund
Money recovered by the Crown under an unexplained wealth order must be
applied, in accordance with guidelines issued by the Treasurer, towards the
costs of administering this Act and the Serious and Organised Crime (Control)
Act 2008 and the balance must be paid into the Victims of Crime Fund
maintained under the Victims of Crime Act 2001.
(1) The Governor may make such regulations as are contemplated by, or
necessary or expedient for the purposes of, this Act.
(2) The regulations may—
(a) be of general application or vary in their application according to
prescribed factors;
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Attorney-General,
the Crown Solicitor or the Commissioner of Police.
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Criminal Assets Confiscation
Act 2005
After section 8 insert:
8A—Certain property and benefits not subject to
proceedings under Act
(1) Despite any provision of this Act, if an unexplained wealth order has
been made against a person, any property or benefits that were taken into
account as wealth of the person that was not lawfully acquired for the purposes
of that order may not be made the subject of proceedings under this Act for a
restraining order or a confiscation order (provided that the person is the
suspect for the purposes of those proceedings).
(2) In this section—
unexplained wealth order means an unexplained wealth order
under the Serious and Organised Crime (Unexplained Wealth) Act 2009 or a
corresponding unexplained wealth order within the meaning of that Act;