Her Excellency the Governor, with the advice of the Executive Council, has made the following Regulation under the Criminal Assets Recovery Act 1990.

CARL SCULLY, M.P.,

Explanatory note

The object of this Regulation is to remake, with certain additions and minor changes, the Criminal Assets Recovery Regulation 2000 which is repealed on 1 September 2006 by section 10 (2) of the Subordinate Legislation Act 1989.

This Regulation:

(a)  makes provision for the manner in which notice of certain applications to, and orders of, the Supreme Court is to be given as required by the Criminal Assets Recovery Act 1990 (the Act), and

(b)  requires notice to be given to the Public Trustee (in addition to the New South Wales Crime Commission) of applications for orders seeking exclusion of property from forfeiture, and

(c)  sets fees that the Public Trustee is authorised to deduct in respect of the exercise of functions in relation to property under the Act, and

(d)  prescribes various Acts of other jurisdictions as corresponding laws for the purposes of the Act, and

(e)  prescribes various orders and declarations in force under provisions of the corresponding laws as interstate assets forfeiture orders, interstate proceeds assessment orders and interstate restraining orders for the purposes of the Act.

This Regulation is made under the Criminal Assets Recovery Act 1990, including sections 4, 19, 25, 26, 31C and 67 (the general regulation-making power).

This Regulation comprises or relates to matters of a machinery nature and matters that are not likely to impose an appreciable burden, cost or disadvantage on any sector of the public.

1   Name of Regulation

This Regulation is the Criminal Assets Recovery Regulation 2006.

2   Commencement

This Regulation commences on 1 September 2006.

Note. The Regulation replaces the Criminal Assets Recovery Regulation 2000 which is repealed on 1 September 2006 by section 10 (2) of the Subordinate Legislation Act 1989.

3   Definitions

(1)  In this Regulation:

Commission means the New South Wales Crime Commission.

Note. See also section 19 of the Police Integrity Commission Act 1996 which provides that the Criminal Assets Recovery Act 1990 applies to the Police Integrity Commission in the same way as it applies to the New South Wales Crime Commission.

originating document means a sealed copy of either the originating process by which proceedings on an application are commenced in the Supreme Court or the notice of motion by which an application is made to the Supreme Court.

the Act means the Criminal Assets Recovery Act 1990.

the Australian Capital Territory Act means the Confiscation of Criminal Assets Act 2003 of the Australian Capital Territory.

the Northern Territory Act means the Criminal Property Forfeiture Act of the Northern Territory.

the Queensland Act means the Criminal Proceeds Confiscation Act 2002 of Queensland.

the South Australian Act means the Criminal Assets Confiscation Act 2005 of South Australia.

the Tasmanian Act means the Crime (Confiscation of Profits) Act 1993 of Tasmania.

the Western Australian Act means the Criminal Property Confiscation Act 2000 of Western Australia.

(2)  Notes included in this Regulation do not form part of this Regulation.

4   Giving of notice

(1)  If notice of an application for an order of the Supreme Court is authorised or required to be given to a person under the Act, the notice is given when the originating document is served on the person in accordance with clause 5.

(2)  If notice of an order of the Supreme Court is authorised or required to be given to a person under the Act, the notice is given when a minute of the order is served on the person in accordance with clause 5.

(3)  Notice to the Commission of the grounds on which an order is sought under section 25 or 26 of the Act is to be given at the same time and in the same manner as notice of the application for the order is given to the Commission.

Note. Section 25 of the Act empowers the Supreme Court to make orders excluding certain property from the operation of assets forfeiture orders and restraining orders in certain circumstances.

Section 26 of the Act empowers the Supreme Court to exclude the value of innocent interests from the operation of assets forfeiture orders in certain circumstances.

5   Form of service

(1)  For the purposes of clause 4 (but subject to this clause), an originating document, a minute of an order or a notice to the Commission must be served personally in accordance with the provisions of Division 3 of Part 10 of the Uniform Civil Procedure Rules 2005 relating to personal service of a document.

(2)  The following forms of service by the Commission are authorised (subject to any order of the Supreme Court) in the case of service on a person (other than the Director of Public Prosecutions, the Commissioner of Police or the Public Trustee), but only if the Commission is satisfied that reasonable efforts to effect personal service have been or would be unsuccessful:

(a)  in accordance with any provisions of Part 10 of the Uniform Civil Procedure Rules 2005 relating to service of a document if personal service is not required,

(b)  by publication of a notice relating to the application or order in a Sydney daily newspaper (and, if the last known residential address of the person to be served is more than 50 kilometres from the General Post Office, Sydney, in a local newspaper circulating in the district concerned), being a notice that sets out:

(i)  the terms of any order sought by the application or the terms of the order made by the Supreme Court, and

(ii)  the date on which the application or order was made,

(c)  in any other manner authorised by the Supreme Court.

(3)  The following forms of service only are authorised (subject to any order of the Supreme Court) in the case of service on the Commission or the Public Trustee:

(a)  by leaving the originating document or the minute of the order at the Head Office in Sydney of the Commission or Public Trustee (as the case requires), with a person who is apparently a member of the staff of the Commission or of the Public Trustee,

(b)  by leaving the originating document or the minute of the order addressed to the Commission or the Public Trustee (as the case may be) in the exchange box of the Commission or Public Trustee in the Sydney Document Exchange, or any other document exchange, of Ausde Pty Ltd,

(c)  in any other manner authorised by the Supreme Court.

6   Giving of notice to Public Trustee of certain exclusion orders

For the purposes of sections 25 (5), 26 (5) and 31C (3) of the Act, the Public Trustee is prescribed as another person to whom notice of an application must be given.

Note. Section 25 of the Act empowers the Supreme Court to make orders excluding certain property from the operation of assets forfeiture orders and restraining orders in certain circumstances.

Section 26 of the Act empowers the Supreme Court to exclude the value of innocent interests from the operation of assets forfeiture orders in certain circumstances.

Section 31C of the Act empowers the Supreme Court to exclude a specified portion of the value of an interest in property forfeited or paid, because an interest in the property was not disclosed in certain circumstances, if it is probable that the specified portion of the value is not attributable to an illegal activity and the person was unaware of the interest.

7   Fees payable to Public Trustee

(1)  For the purposes of section 19 of the Act, the fees which the Public Trustee is entitled to deduct from the proceeds of disposition of an interest in property of which the Public Trustee has taken control in accordance with a restraining order or which has vested in the Public Trustee on an assets forfeiture order are as follows:

(a)  an amount equal to 2.5% of the value of the interest in the property as determined in accordance with subclause (2),

(b)  an amount equal to the actual costs incurred and disbursements made in relation to the interest in the property by the Public Trustee,

(c)  in the case of an interest in property from which income is derived, in addition to the fees set out in paragraphs (a) and (b), an amount equal to 5.25% of the gross income derived from the interest in the property.

(2)  The value of the interest in the property referred to in subclause (1) (a) is the value determined by the Public Trustee or, if the interest is disposed of by sale, the gross amount realised on the sale.

(3)  Costs and disbursements referred to in subclause (1) (b) include the costs of legal representation, the costs of obtaining legal advice or any other legal costs, agents’ fees, valuation fees and the costs and expenses incurred in relation to the operation of any business associated with the interest in the property concerned.

(4)  This clause does not prevent the Public Trustee from waiving or reducing a fee that the Public Trustee is entitled to deduct under this clause.

Note. Section 19 of the Act entitles the Public Trustee to deduct prescribed fees from the proceeds of disposition of property that is subject to a restraining order or an assets forfeiture order.

8   Corresponding laws

The following laws are prescribed as laws that correspond to the Act:

(a)  the Australian Capital Territory Act,

(b)  the Northern Territory Act,

(c)  the Queensland Act,

(d)  the South Australian Act,

(e)  the Tasmanian Act,

(f)  the Western Australian Act.

9   Interstate assets forfeiture orders

The following are declared to be within the definition of an interstate assets forfeiture order for the purposes of the Act:

(a)  an order in force under Part 5 of the Australian Capital Territory Act,

(b)  an order in force under section 94, 96, 97, 99, 100 or 101 of the Northern Territory Act,

(c)  an order in force under section 58 of the Queensland Act,

(d)  an order in force under section 47 of the South Australian Act,

(e)  an order in force under section 16 of the Tasmanian Act,

(f)  a declaration in force under section 22 or 28 of the Western Australian Act that is enforceable by confiscation under that Act or a confiscable property declaration under section 30 of that Act.

10   Interstate proceeds assessment orders

The following are declared to be within the definition of an interstate proceeds assessment order for the purposes of the Act:

(a)  an order in force under Part 7 of the Australian Capital Territory Act,

(b)  an order in force under section 72, 80 or 86 of the Northern Territory Act resulting from a declaration under section 71, 75, 76 or 81 of that Act,

(c)  an order in force under section 78 of the Queensland Act,

(d)  an order in force under section 95 of the South Australian Act,

(e)  an order in force under section 21 of the Tasmanian Act,

(f)  a declaration in force under section 12, 16, 17 or 22 of the Western Australian Act in respect of which a person is liable under that Act to pay an amount specified in that declaration.

11   Interstate restraining orders

The following are declared to be within the definition of an interstate restraining order for the purposes of the Act:

(a)  an order in force under section 30 or 31 of the Australian Capital Territory Act,

(b)  an order in force under section 43 or 44 of the Northern Territory Act,

(c)  an order in force under section 31 or 37 of the Queensland Act,

(d)  an order in force under section 24 of the South Australian Act,

(e)  an order in force under section 26 of the Tasmanian Act,

(f)  a freezing notice in force under section 34 of the Western Australian Act or a freezing order in force under section 43 of that Act.

12   Saving

Any act, matter or thing that, immediately before the repeal of the Criminal Assets Recovery Regulation 2000, had effect under that Regulation continues to have effect under this Regulation.

Historical notes

The following abbreviations are used in the Historical notes:

Table of amending instruments

Criminal Assets Recovery Regulation 2006 (506). GG No 111 of 1.9.2006, p 7100. Date of commencement, 1.9.2006, cl 2.