Criminal Assets Confiscation Act 2005 (SA)

South Australia Criminal Assets Confiscation Act 2005 An Act to provide for the confiscation of proceeds and instruments of crime; to provide for the confiscation of property of certain drug offenders as an additional punishment for their offending; and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Meaning of abscond 5 Meaning of convicted of an offence 6 Meaning of effective control 6A Meaning of prescribed drug offender 7 Meaning of proceeds and instrument of an offence 8 Meaning of quashing a conviction 8A Certain property and benefits not subject to proceedings under Act 9 Act binds Crown 10 Application of Act 11 Interaction with other Acts 11A Application of Personal Property Securities Act 12 Corresponding laws 13 Delegation 14 Jurisdiction of Magistrates Court Part 2—Freezing orders 15 Interpretation 16 Commissioner may authorise police officers for purposes of Part 17 Authorised police officer may apply for freezing order 18 Urgent applications 19 Notice of freezing order to be given to financial institution 20 Effect of freezing order 21 Duration of freezing order 22 Failure to comply with freezing order 23 Offence to disclose existence of freezing order Part 3—Restraining orders Division 1—Restraining orders 24 Restraining orders 25 Notice of application 26 Refusal to make an order for failure to give undertaking 27 Order allowing expenses to be paid out of restrained property 28 Excluding property from or revoking restraining orders in certain cases when expenses are not allowed Division 2—Giving effect to restraining orders 29 Notice of a restraining order 30 Registering restraining orders 31 Notifying registration authorities of exclusions from or variations to restraining orders 32 Court may set aside a disposition contravening a restraining order 33 Contravening restraining orders Division 3—Excluding property from restraining orders 34 Court may exclude property from restraining order 35 Application to exclude property from a restraining order after notice of the application for the order 36 Application to exclude property from a restraining order after notice of the order 37 Application not to be heard unless DPP has had reasonable opportunity to conduct an examination 38 Giving security etc to exclude property from a restraining order Division 4—Further orders 39 Court may order Administrator to take custody and control of property 40 Ancillary orders 41 Contravening ancillary orders relating to foreign property Division 5—Duration of restraining orders 42 When a restraining order comes into force 43 Application to revoke a restraining order 44 Giving security etc to revoke a restraining order 45 Notice of revocation of a restraining order 46 Cessation of restraining orders Part 4—Forfeiture Division 1—Forfeiture orders Subdivision 1—Forfeiture orders 47 Forfeiture orders 48 Instrument substitution declarations 49 Additional application for a forfeiture order 50 Notice of application 51 Procedure on application 52 Amending an application 53 Forfeiture orders can extend to other interests in property 54 Forfeiture orders must specify the value of forfeited property 55 Declaration by court in relation to buying back interests in forfeited property 56 Court may make supporting directions Subdivision 1A—Deemed forfeiture orders 56A Prescribed drug offenders 56B Court may declare that property has been forfeited under this Subdivision Subdivision 2—Reducing the effect of forfeiture orders 57 Relieving certain dependants from hardship 58 Making exclusion orders before forfeiture order made 59 Making exclusion orders after forfeiture 59A Exclusion orders based on cooperation with law enforcement agency 59B Exclusion orders based on financial interests of Crown etc 60 Applying for exclusion orders 61 Making compensation orders 62 Applying for compensation orders 62A No exclusion or compensation where forfeiture taken into account in sentencing Subdivision 3—The effect of acquittals and quashing of convictions 63 Certain forfeiture orders unaffected by acquittal or quashing of conviction 64 Discharge of conviction based forfeiture order on quashing of conviction 65 Notice of application for confirmation of forfeiture order 66 Procedure on application for confirmation of forfeiture order 67 Court may confirm forfeiture order 68 Effect of court's decision on confirmation of forfeiture order 69 Administrator must not deal with forfeited property before the court decides on confirmation of forfeiture order 70 Giving notice if a forfeiture order is discharged on appeal or by quashing of a conviction 71 Returning property etc following the discharge of a forfeiture order Subdivision 4—Buying back interests in forfeited property etc 72 A person may buy back interest in forfeited property 73 A person may buy out another person's interest in forfeited property Division 2—Forfeiture on conviction of a serious offence Subdivision 1—Forfeiture on conviction of a serious offence 74 Forfeiting restrained property without forfeiture order if person convicted of serious offence 75 Extended period 76 Excluding property from forfeiture under this Division 76AA Excluding property based on cooperation with law enforcement agency 76A No exclusion where forfeiture taken into account in sentencing 77 Court may declare that property has been forfeited under this Division Subdivision 2—Recovery of forfeited property 78 Court may make orders relating to transfer of forfeited property etc 79 Court may make orders relating to buying back forfeited property 80 Applying for orders under sections 78 and 79 81 A person may buy back interest in forfeited property 82 A person may buy out another person's interest in forfeited property Subdivision 3—The effect of acquittals and quashing of convictions 83 The effect on forfeiture of convictions being quashed 84 Notice of application for confirmation of forfeiture 85 Procedure on application for confirmation of forfeiture 86 Court may confirm forfeiture 87 Effect of court's decision on confirmation of forfeiture 88 Administrator must not deal with forfeited property before the court decides on confirmation of forfeiture 89 Giving notice if forfeiture ceases to have effect on quashing of a conviction Division 3—Forfeited property 90 What property is forfeited and when 91 When the Crown can begin dealing with property specified in a forfeiture order 92 When the Crown can begin dealing with property forfeited under section 74 93 How forfeited property must be dealt with 94 Dealings with forfeited property Part 5—Other confiscation orders Division 1—Pecuniary penalty orders Subdivision 1—Pecuniary penalty orders 95 Making pecuniary penalty orders 96 Additional application for pecuniary penalty order 97 Pecuniary penalty orders made in relation to serious offence convictions 98 Making of pecuniary penalty order if person has absconded 98A Property subject to a person's effective control Subdivision 2—Pecuniary penalty order amounts 99 Determining penalty amounts 100 Evidence the court is to consider in assessing the value of benefits 101 Value of benefits derived 102 Value of benefits may be as at time of assessment 103 Matters that do not reduce the value of benefits 104 Benefits and instruments already the subject of pecuniary penalty 106 Effect of property vesting in an insolvency trustee 107 Reducing penalty amounts to take account of forfeiture and proposed forfeiture 108 Reducing penalty amounts to take account of fines etc 109 Varying pecuniary penalty orders to increase penalty amounts Division 2—Literary proceeds orders Subdivision 1—Literary proceeds orders 110 Meaning of literary proceeds 111 Making literary proceeds orders 112 Matters taken into account in deciding whether to make literary proceeds orders Subdivision 2—Literary proceeds amounts 113 Determining literary proceeds amounts 114 Deductions from literary proceeds amounts 115 Varying literary proceeds orders to increase literary proceeds amounts Subdivision 3—Literary proceeds amounts may cover future literary proceeds 116 Literary proceeds orders can cover future literary proceeds 117 Enforcement of literary proceeds orders in relation to future literary proceeds Division 3—Matters generally applicable to orders under this Part Subdivision 1—Applications for confiscation orders under this Part 118 Notice of application 119 Amending an application Subdivision 2—Ancillary orders 120 Ancillary orders Subdivision 3—Reducing pecuniary penalty amount or literary proceeds amount 121 Reducing penalty amounts and literary proceeds amounts to take account of tax paid Subdivision 4—Enforcement 122 Enforcement of confiscation orders under this Part 123 Property subject to a person's effective control Subdivision 5—Effect of acquittals and quashing of convictions 124 Acquittals do not affect confiscation orders under this Part 125 Discharge of confiscation order under this Part if made in relation to a conviction 126 Confiscation order under this Part unaffected if not made in relation to a conviction 127 Notice of application for confirmation of confiscation order under this Part 128 Procedure on application for confirmation of confiscation order under this Part 129 Court may confirm confiscation order under this Part 130 Effect of court's decision on confirmation of confiscation order under this Part Part 6—Information gathering Division 1—Examinations Subdivision 1—Examination orders 131 Examination orders relating to restraining orders 132 Examination orders relating to applications for confirmation of forfeiture Subdivision 2—Examination notices 133 Examination notices 134 Form and content of examination notices Subdivision 3—Conducting examinations 135 Time and place of examination 136 Requirements made of person examined 137 Examination to take place in private 138 Role of the examinee's legal practitioner during examination 139 Record of examination 140 Questions of law 141 DPP may restrict publication of certain material 142 Protection of DPP etc Subdivision 4—Offences 143 Failing to attend an examination 144 Offences relating to appearance at an examination 145 Self-incrimination 146 Unauthorised presence at an examination 147 Breaching conditions on which records of statements are provided 148 Breaching directions preventing or restricting publication Division 2—Production orders 149 Interpretation 150 Making production orders 151 Contents of production orders 152 Powers under production orders 153 Retaining produced documents 154 Self-incrimination 155 Varying production orders 156 Making false statements in applications 157 Disclosing existence or nature of production orders 158 Failing to comply with a production order 159 Destroying etc a document subject to a production order Division 3—Notices to financial institutions 160 Giving notices to financial institutions 161 Immunity from liability 162 Making false statements in notices 163 Disclosing existence or nature of notice 164 Failing to comply with a notice Division 4—Monitoring orders 165 Making monitoring orders 166 Contents of monitoring orders 167 Immunity from liability 168 Making false statements in applications 169 Disclosing existence or operation of monitoring order 170 Failing to comply with monitoring order Division 5—Search and seizure Subdivision 1—Preliminary 171 Interpretation Subdivision 2—Search warrants 172 Warrants authorising seizure of property 173 Applications for warrants 174 Powers conferred by warrant 175 Hindering execution of warrant 176 Person with knowledge of a computer or a computer system to assist access etc 177 Providing documents after execution of a search warrant Subdivision 3—Seizure without warrant 178 Seizure without warrant allowed in certain circumstances 179 Stopping and searching vehicles Subdivision 4—Dealing with material liable to seizure under this Act 180 Receipts for material seized 181 Responsibility for material seized 182 Effect of obtaining forfeiture orders 183 Returning seized material 184 Magistrate may order that material be retained 185 Return of seized material to third parties 186 Return of seized material if applications are not made for restraining orders or forfeiture orders 187 Effect of obtaining restraining orders 188 Effect of refusing applications for restraining orders or forfeiture orders Subdivision 5—Miscellaneous 189 Making false statements in applications Part 7—Administration Division 1—Powers and duties of the Administrator Subdivision 1—Preliminary 190 Appointment of Administrator 191 Property to which the Administrator's powers and duties under this Division apply Subdivision 2—Obtaining information about controlled property 192 Access to documents 193 Suspect to assist Administrator 194 Power to obtain information and evidence 195 Self-incrimination 196 Failure of person to attend 197 Refusal to be sworn or give evidence etc Subdivision 3—Dealings relating to controlled property 198 Preserving controlled property 199 Rights attaching to shares 200 Destroying or disposing of property 201 Objection to proposed destruction or disposal 202 Procedure if person objects to proposed destruction or disposal 203 Proceeds from sale of property Subdivision 4—Discharging pecuniary penalty orders and literary proceeds orders 204 Direction by a court to the Administrator 205 Administrator not to carry out directions during appeal periods 206 Discharge of pecuniary penalty orders and literary proceeds orders Division 2—Legal assistance 207 Payments to Legal Services Commission for representing suspects and other persons 208 Disclosure of information to Legal Services Commission Division 3—Credits to funds 209 Credits to Victims of Crime Fund 209A Credits to Justice Rehabilitation Fund Division 3A—National cooperative scheme on unexplained wealth 209B Interpretation 209C Application of Division—National Cooperative Scheme 209D Notification of shareable proceeds 209E Contribution by foreign jurisdiction 209F Net amount 209G CJC subcommittee 209H Payment to contributing non-participating State 209I Payment to contributing CJC members 209J Payment period 209K Payment to Victims of Crime Fund or Justice Rehabilitation Fund Division 4—Charges on property Subdivision 1—Charge to secure certain amounts payable to the Crown 210 Charge on property subject to restraining order Subdivision 2—Charge to secure certain amounts payable to Legal Services Commission 211 Legal Services Commission charges Subdivision 3—Registering and priority of charges 212 Charges may be registered 213 Priority of charges Part 8—Miscellaneous 214 Authorised officers to be issued identity cards 216 Manner of giving notices etc 217 Registration of orders made under corresponding laws 218 Certain proceedings to be civil 219 Consent orders 220 Onus and standard of proof 221 Applications to certain courts 222 Proof of certain matters 223 Stay of proceedings 224 Effect of confiscation scheme on sentencing 225 Deferral of sentencing pending determination of confiscation order 226 Appeals 227 Costs and exemplary or punitive damages 228 Interest 229 Effect of a person's death 229A Annual report relating to prescribed drug offenders 230 Regulations Schedule 1—Transitional provisions Part 7—Transitional provisions 11 Transitional provision Legislative history