Confiscation of Criminal Assets Regulation 2003

This regulation is short and largely definitional and mapping in character. The main concepts, with the relevant provisions, are:

• Corresponding law (s 4). The regulation declares a fixed list of interstate Acts to be “corresponding laws” for the Act’s dictionary. The list is concrete: NSW Confiscation of Proceeds of Crime Act 1989 and Criminal Assets Recovery Act 1990; Victoria’s Confiscation Act 1997; Queensland’s Criminal Proceeds Confiscation Act 2002; Western Australia’s Criminal Property Confiscation Act 2000; South Australia’s Criminal Assets Confiscation Act 2005 and Serious and Organised Crime (Unexplained Wealth) Act 2009; Tasmania’s Crime (Confiscation of Profits) Act 1993; and the Northern Territory’s Criminal Property Forfeiture Act 2002.

• Corresponding law orders (ss 5-9A). The Act uses terms such as “interstate restraining order”, “interstate automatic forfeiture decision”, “interstate civil forfeiture order”, “interstate conviction forfeiture order”, “interstate penalty order” and “interstate unexplained wealth order”. This regulation prescribes which specific provisions in the listed corresponding laws count as those order types for the Act. Each section does two things: it lists specific provisions in other statutes that are to be treated as the relevant order type (s 5(1), s 6(1), etc.), and it frequently also prescribes consent orders, variation orders and orders varying the property to which a prescribed order relates (see the recurring subsections such as s 5(2), s 7(2), s 9A(2)).

• Prescribed substances (s 11 and sch 1). For the Act’s definition of “narcotic substance” at s 90, the regulation prescribes an enumerated list of “other narcotic substances” in schedule 1. The schedule is specific: it lists named chemical substances and classes (items 1-33) and refers to “cannabis, other than a cannabis food product” as a listed substance, while defining “cannabis food product” by cross-reference to the Drugs of Dependence Act 1989 s 6 (sch 1, meaning provision).

• Police notification duty (s 10). The regulation requires a police officer who proposes restraint to give the Director of Public Prosecutions written notice of the property and of the name and address of anyone the officer believes has an interest. The notice may include other information the officer considers appropriate, and the failure to comply does not invalidate an application for a restraining order (s 10(3)). The regulation also notes that, where an approved form exists under the Act s 259, that form must be used (s 10 note).

• Public trustee management fee (s 12). The regulation fixes the annual fee the public trustee may charge the confiscated assets trust fund at 1.1% of amounts paid into the trust fund each financial year (s 12, citing Act s 132(1)(d)).

Structurally, this instrument serves as a statutory crosswalk: it tells practitioners which interstate instruments plug into the Act’s cross-border recognition framework and which substances plug into the Act’s narcotics definition. It also sets a modest administrative rule for police and a specific administrative cost (public trustee fee). The regulation does not itself set out the Act’s substantive test for restraint, forfeiture or unexplained wealth matters; it supplies the definitional and administrative scaffolding that the Act uses in cross-jurisdictional and substance-specific contexts.

This regulation affects several distinct groups in narrow, concrete ways:

• Police officers (s 10). A police officer who proposes that property should be restrained under the Act must give written notice to the director of public prosecutions identifying the property and the names and addresses of persons the officer believes have an interest (s 10(1)). The officer may include other information the officer considers appropriate (s 10(2)). Although non‑compliance does not invalidate an application (s 10(3)), the duty creates an administrative obligation on investigating officers and their agencies. The provision therefore affects police record-keeping and communications with prosecutorial authorities.

• The Director of Public Prosecutions (s 10). The DPP will receive written notices of proposed restraint under s 10. That creates an information flow into the DPP’s office, which may affect DPP decision‑making on applications for restraining orders and the resources needed to process incoming notices.

• Persons with interests in property targeted for restraint. The regulation requires police to include the names and addresses of anyone the officer believes has an interest (s 10(1)(b)). Practically, this affects persons who may be notified or whose existence must be recorded in the prosecution file, and it can affect subsequent timelines for court processes triggered by a restraining application.

• Public Trustee and the confiscated assets trust fund (s 12). The trust fund will be charged an annual management fee of 1.1% of amounts paid into the fund in each financial year (s 12). That directly reduces net amounts available in the trust fund for distribution or other statutory uses and affects accounting practices for the trust fund.

• Persons and entities subject to interstate orders. The regulation prescribes which interstate orders are to be treated as corresponding law orders for the Act (ss 5-9A). Individuals whose property is restrained, forfeited, or otherwise affected by an order in another jurisdiction listed in the schedule may find that the ACT can treat that interstate order as a corresponding law order under the Act. That expands the practical reach of orders made elsewhere to ACT processes, potentially affecting property rights and enforcement exposure of persons with assets in the ACT.

• Lawyers, accountants and compliance professionals advising clients in cross-border matters. Because the regulation maps specific interstate provisions to the Act’s definitions, advisers must check the regulation to know which interstate orders will be recognised for ACT processes (ss 4-9A). This will affect advice on risk of restraint, cross-jurisdictional enforcement, and transactions involving property that might be targeted under confiscation regimes.

• Regulated entities dealing with narcotics or suspected drug proceeds. The prescribed list of “other narcotic substances” (sch 1) will affect the Act’s application where “narcotic substance” is material to restraint or forfeiture. The inclusion of “cannabis, other than a cannabis food product” and the cross-reference to the Drugs of Dependence Act 1989 s 6 for “cannabis food product” means some cannabis products fall inside the Act’s definition while others do not, which affects businesses and individuals dealing with such products.

Notably absent from the regulation are any new criminal offences or penalties specific to this instrument; the regulation instead modifies definitions and cross-jurisdictional recognition. The primary incremental compliance costs are administrative: police providing written notices, the trust fund paying the public trustee fee, and legal advisers checking the regulation when assessing interstate risk. The regulation’s mapping function concentrates decision-making on prosecutorial and court processes linked to the Act, and on how external orders will be processed under the Act’s machinery.

The regulation establishes a small set of duties and rights, largely administrative and definitional. The principal duties are:

• Police notice duty (s 10(1)). A police officer proposing that property should be restrained under the Act must give the director of public prosecutions written notice stating: (a) the property, and (b) the name and address of anyone the officer believes has an interest in the property. The notice may include other information the officer considers appropriate (s 10(2)). The duty is a mandatory notice requirement in form, though s 10(3) explicitly states that failure to comply does not invalidate an application for a restraining order. That combination makes the duty a procedural obligation that does not create a jurisdictional bar if omitted.

• Use of approved form, if one exists (s 10 note). The regulation’s explanatory note directs that if a form is approved under the Act s 259 for a notice, that form must be used. This ties the procedural duty to any standardised form regime enacted under the Act, if in force.

• Public trustee fee (s 12). The public trustee is entitled to an annual management fee of 1.1% of the amount paid into the confiscated assets trust fund each financial year. That is an express statutory financial entitlement for the public trustee to be applied against the trust fund.

The principal definitional rights or effects that can translate into legal positions include:

• Recognition of interstate orders (ss 5-9A). The regulation prescribes which interstate provisions are to be treated as corresponding law orders for the Act. That mapping produces legal effects under the Act: orders made under the prescribed interstate provisions will count as the corresponding ACT-type orders for recognition/enforcement processes under the Act. For example, Confiscation Act 1997 (Vic) s 35 is prescribed as an interstate automatic forfeiture decision (s 6(1)(b)). Individuals affected by a prescribed interstate order therefore have the right to be treated according to the Act’s rules that apply to that order type, though the Act itself sets the substantive consequences and any procedural protections.

• Definition of narcotic substances (s 11 and sch 1). The schedule prescribes specific substances that fall within the Act’s “narcotic substance” concept (Act s 90). That definitional decision creates rights for regulators and liabilities for persons whose property derives from, or is used in connection with, dealings in the listed substances.

Procedural protections and invalidity rules remain governed by the Act. The regulation’s s 10(3) is notable: it removes the possibility that a police officer’s failure to give the prescribed notice will invalidate a restraining order application, so it constrains any argument that non‑compliance of that notice duty would automatically defeat jurisdiction. Rights to challenge orders (e.g. on substantive grounds) are not created or affected by this regulation; those remain the province of the Act and court rules.

For practitioners, the key operational duties to observe are the police notice (s 10) and, for financial administration, the public trustee’s right to charge 1.1% (s 12). For rights and remedies, the mapping of interstate orders to the Act’s defined categories (ss 5-9A) affects what processes apply after an interstate order is recognised; the exact rights available in response will be determined by the Act and the courts under the Act’s procedures.

This regulation does not create new criminal offences nor set new penal consequences beyond its administrative prescriptions. The instrument is largely definitional and procedural; it prescribes mappings, a notice duty, a fee, and a schedule of substances. The enforcement and penalty architecture remains with the parent Act and existing enforcement regimes.

Relevant explicit material in the republication is:

• Penalty unit values (republication header). The republication front matter states that, at the republication date, a penalty unit is $160 for an individual and $810 for a corporation (see the “Penalties” paragraph at the head of the instrument). That is a republication note about penalty-unit values and is not specific to any particular offence in the regulation (no offence provisions are included in the regulation text).

• Non-invalidating notice failure (s 10(3)). The regulation expressly states that a police officer’s failure to comply with the notice requirement in s 10 does not invalidate an application for a restraining order. That is an enforcement‑relevant rule: it removes automatic invalidity as a sanction for non‑compliance with that procedural duty. It may, however, leave open administrative or disciplinary consequences within police agencies, though the regulation itself does not provide for those.

• Public trustee fee (s 12) as an administrative charging power. The regulation sets the annual management fee at 1.1% of amounts paid into the trust fund. The instrument does not include enforcement mechanisms for non‑payment beyond the Act’s trust‑fund accounting and legal remedies that apply to public trustee fees in other contexts.

No penalties are prescribed in the regulation itself for contraventions of its provisions (for example, there is no fine specified for a police officer failing to provide notice). The regulation’s practical enforcement is therefore governance and administrative rather than penal: compliance will be managed through administrative processes (use of forms, DPP handling, public trustee accounting) and by the Act’s substantive enforcement of confiscation and forfeiture powers where relevant.

Practitioners should therefore treat this instrument as operationally significant for administrative compliance rather than penal risk: failure to follow the procedural duties will not, by this regulation, result in the invalidation of applications and no specific offence provisions are created here. Any sanctioning for non‑compliance would need to be found in the Act or in internal agency disciplinary regimes, not in the regulation.

The regulation’s raison d’être is interaction with external statutes. Its core interaction pattern is to bind particular interstate provisions and specified substances into the Act’s defined vocabulary. The interactions are explicit and statutory.

• Corresponding laws and the Act’s dictionary. Section 4 declares a set of interstate Acts to be “corresponding laws”. That declaration directly affects how the Act’s dictionary term “corresponding law” operates: where the Act uses the term, the Acts listed in s 4 are to be treated as falling within that definition. The instrument therefore links the Act to specified NSW, Vic, Qld, WA, SA, Tas and NT statutes and brings their specified orders within reach of the Act’s cross‑jurisdictional mechanisms.

• Corresponding law orders. Sections 5-9A perform a statutory crosswalk: they identify particular sections of those corresponding law statutes and designate them to be the interstate order types used in the Act. For example, s 5(1)(a) prescribes NSW Confiscation of Proceeds of Crime Act 1989 s 43 as a corresponding provision for an “interstate restraining order”. Section 9A(1)(d) prescribes SA’s Serious and Organised Crime (Unexplained Wealth) Act 2009 s 9 as an interstate unexplained wealth order. The regulation also prescribes ancillary orders such as consent orders, variation orders, and orders that vary property to which an interstate order relates (see ss 5(2), 6(2), 7(2), 9A(2)). That crosswalk establishes the legal mechanism by which decisions made in those other jurisdictions can be treated as orders for the Act’s purposes in the ACT context.

• Interaction with the Act’s definitional cross‑references. The regulation’s provisions operate “for the Act, dict, def corresponding law” and “for the Act, dict, def interstate restraining order” (each section’s marginal note indicates the Act cross‑reference). That means the regulation does not itself create the operational effect of interstate recognition; rather, it supplies the inputs the Act needs to give interstate orders effect in ACT processes. The substantive legal consequences of recognition (for example, steps for giving effect to an interstate forfeiture decision in the ACT) remain those set out in the Act.

• Interaction with the Drugs of Dependence Act 1989. Schedule 1 contains “cannabis, other than a cannabis food product” and then defines “cannabis food product” by reference to the Drugs of Dependence Act 1989 s 6. That constructs a cross‑statute definitional link: whether a cannabis product falls within the Act’s “narcotic substance” definition will in part turn on the Drugs of Dependence Act’s definition of “cannabis food product.”

• Interaction with public trustee and trust fund law. Section 12 fixes an annual fee for the public trustee’s management of the confiscated assets trust fund, citing Act s 132(1)(d). That ties the trust fund’s administration to the public trustee’s fee regime, and affects the trust fund’s net resources available for distribution or other purposes under the Act.

• Interaction with administrative form law. Section 10’s note references the Act s 259 approved form regime: where an approved form exists, it must be used. That links the regulation’s procedural prescription to any forms regime under the Act.

The regulation therefore acts as a connecting instrument. It does not, by itself, change substantive criminal or civil forfeiture law; it tells readers which external orders and substances feed into the Act’s machinery. Practitioners must therefore read the regulation alongside the Act and the listed interstate provisions to understand full legal effect. The mapping is sometimes conditional (for example, WA provisions are prescribed “if the property was confiscated under that Act, section 8(1)” , see s 6(1)(c)), so the interaction can depend on facts about how the interstate order was made.

The endnotes in the republication provide the instrument’s legislative history and amendment record. The regulation was originally made as the Confiscation of Criminal Assets Regulations 2003 (SL2003-25), notified on the legislation register 14 August 2003, with most provisions commencing 15 August 2003 (see endnote 3). The amendment history in the endnotes records two principal later amendments included in this republication:

• Crimes Legislation Amendment Act 2019 (A2019-23). This amending Act effected changes that were included in Republication R3 effective 15 August 2019. Endnote 4 records that Schedule 1 (other narcotic substances) was amended by A2019-23, s 22 and s 23; the schedule as republished reflects those amendments.

• Confiscation of Criminal Assets Amendment Regulation 2022 (No 1) (SL2022-5). This subordinate instrument was notified 2 May 2022 and took effect in part on 3 May 2022 (endnote 3). Endnote 4 records that SL2022-5 amended multiple sections: s 4 (corresponding laws) (SL2022-5 s 4); ss 5-7 renumbering for interstate restraining order (SL2022-5 ss 5-7); s 8 for interstate automatic forfeiture decision (SL2022-5 s 8); ss 9-11 for interstate civil forfeiture order; ss 12-15 for interstate conviction forfeiture order; s 16 for interstate penalty order; and s 17 inserted s 9A for interstate unexplained wealth order.

The republication’s earlier republications table (endnote 5) shows R1 (15 Aug 2003), R2 (1 Nov 2004) and R3 (15 Aug 2019) with annotations describing editorial changes and the 2019 amendments. The republication includes editorial amendments made under the Legislation Act 2001 part 11.3 as permitted (see the preliminary notes).

Practitioners must therefore note that the regulation has been updated to reflect evolving interstate statutory regimes, including the insertion (by SL2022-5) of a specific mapping for interstate unexplained wealth orders (s 9A). The amendment history makes clear that the regulation’s principal function , to map interstate provisions and to maintain a list of substances , is periodically updated to match changes in other jurisdictions’ confiscation and unexplained wealth statutes.

The regulation itself contains no recorded litigation history in its endnotes. The endnotes in this republication provide legislative and amendment history (see endnote 3 and 4) and list earlier republications (endnote 5), but there are no entries recording judicial decisions that interpret or apply the regulation. The instrument does not name any cases.

Because this regulation is primarily definitional and cross‑referential, party litigation will more commonly arise under the Act’s substantive provisions and under court processes that implement or challenge the recognition and enforcement of interstate orders. The regulation’s role in litigation is therefore likely to be as an evidentiary or interpretive tool: litigants and courts will consult ss 4-9A to determine whether a particular interstate order is a prescribed “corresponding law order” for the Act, and will consult sch 1 when the Act’s application turns on whether a substance is a “narcotic substance.” Any reported decisions addressing those points will appear in jurisprudence under the Act rather than in the regulation’s endnotes.

For practitioners preparing litigation or advising clients, the absence of recorded cases in the instrument means that precedential treatment of the regulation’s mappings must be sought in broader case-law under the Act and in judicial decisions that discuss interstate recognition. If a court were to be asked to interpret whether a specified interstate instrument falls within the regulation’s prescription, the court would read the regulation alongside the Act. Absent reported cases cited here, the necessary research step is to search court databases and published decisions under the Confiscation of Criminal Assets Act 2003 and the listed corresponding laws for any decisions that address the mapping, the validity of prescribed items, or challenges to administrative steps such as the police notice obligation.

This short regulation contains several practical traps for the unwary. The following items are concrete, text‑based pitfalls and operational points to watch:

• Notice requirement is mandatory but non‑jurisdictional (s 10). Police must give written notice to the DPP before making a restraint proposal and must include names/addresses of people believed to have an interest (s 10(1)). However, s 10(3) expressly states that failure to comply does not invalidate an application for a restraining order. The “gotcha” is twofold: (1) police may nonetheless face administrative or evidential disadvantages if they omit required notice, and (2) litigants cannot automatically invalidate a restraining application on the basis of non‑compliance with s 10 , they will need to find another ground. Practitioners should therefore not assume omission equals fatal procedural error.

• Approved-form requirement (s 10 note). The note to s 10 points to Act s 259: if an approved form exists for the notice, that form must be used. The form regime is an external dependency; practitioners should confirm whether an approved form is current and must be used, otherwise the notice may not satisfy internal agency or DPP expectations even if it is not jurisdictionally fatal.

• Conditional prescriptions for WA provisions (see ss 6(1)(c), 7(1)(d), 8(1)(d)). In several places the regulation prescribes WA Criminal Property Confiscation Act 2000 provisions only in limited circumstances (for example, “section 30 if the property was confiscated under that Act, section 8(1)”). That conditionality means a practitioner must examine the factual basis on which the WA order was made before relying on the mapping , the mapping does not apply universally to all WA orders.

• Cannabis carve‑out paired with external definition (sch 1). Schedule 1 lists “cannabis, other than a cannabis food product” and then defines “cannabis food product” by reference to the Drugs of Dependence Act 1989 s 6 (sch 1, meaning provision). The practical effect is that some cannabis products are prescribed narcotic substances but others (cannabis food products as defined elsewhere) are excluded. Advisers must cross‑check the separate Drugs of Dependence Act definition to determine whether a particular product is captured.

• The public trustee fee reduces the trust fund (s 12). The annual management fee of 1.1% of amounts paid into the trust fund each financial year is a fixed cost that will reduce amounts available for restitution, victim compensation, or other statutory distributions. Practitioners and clients should account for that reduction when assessing expected net recoveries.

• Mapping includes consent/variation orders (multiple sections). The regulation explicitly prescribes “an order consenting to the making of an order prescribed under subsection (1)”, “an order varying an order prescribed under subsection (1)”, and “an order varying the property to which an order prescribed under subsection (1) relates” in many of the sections (for example, s 5(2), s 7(2), s 9A(2)). That inclusion means that not only final interstate forfeiture orders but also associated consent and variation instruments can be treated as corresponding law orders. Practitioners should check whether an interstate consent or variation instrument is itself caught by the mapping.

• No penalty in this regulation for non‑compliance. There is no fine or criminal sanction specified here for failing to give the notice or for any other breach of the regulation. The lack of a statutory penalty does not remove administrative consequences but does remove the possibility of seeking statutory fines under this instrument.

• The regulation is subject to amendment and has been amended to reflect other jurisdictions’ laws (endnotes 3-4). The mapping changes over time, particularly with the insertion of s 9A for unexplained wealth orders (SL2022-5). Do not rely on an older copy; always check the current republication or the legislation register for up‑to‑date mappings.

• The regulation is a bridge, not the substantive law. It tells you which interstate provisions and which substances are to be treated as corresponding, but it does not set out the Act’s substantive tests, time limits, or court processes. A “gotcha” is to assume that prescribing an interstate order here supplies the procedural steps for enforcement; it does not , those steps are in the Act.

Compliance with this regulation is primarily about following the administrative prescriptions and using the regulation as a checklist when dealing with interstate confiscation matters and narcotic‑related property. Concrete compliance steps:

1. Police officers proposing restraint:

   • Provide the DPP with written notice that includes the property to be restrained and the name and address of anyone the officer believes has an interest in the property (s 10(1)(a)-(b)).
   • If the Act s 259 approved form exists, use that form for the notice (s 10 note). Confirm the current approved form on the legislation register or with the DPP’s office.
   • Consider including additional background information the officer deems appropriate to assist DPP decision-making (s 10(2)). Keep documentary records to evidence compliance.

2. Advisers and prosecutors handling interstate orders:

   • When an interstate restraining, forfeiture, penalty or unexplained wealth order is presented for recognition or enforcement under the Act, check ss 5-9A to confirm whether the interstate provision under which the order was made is prescribed as the corresponding order type.
   • For orders arising under WA law or other provisions with conditional prescriptions (see, for example, s 6(1)(c)), verify the factual basis of the interstate order to ensure the regulation’s conditional mapping applies in that case.
   • Check whether ancillary interstate instruments (consents, variations, property-variation orders) are included in the mapping (they often are; see ss 5(2), 6(2), 7(2), 9A(2)). If so, follow the Act’s processes for recognition accordingly.

3. Dealing with narcotic substance definitions:

   • Where the Act’s application turns on whether property is connected to a “narcotic substance”, consult s 11 and schedule 1 to determine whether the substance is listed. For cannabis products, cross-check the Drugs of Dependence Act 1989 s 6 (sch 1 meaning provision) to determine whether a product is a “cannabis food product” and thus excluded from the schedule’s “cannabis, other than a cannabis food product” entry.

4. Public trustee and trust fund accounting:

   • For trust fund administrators and the public trustee, apply an annual management fee of 1.1% of amounts paid into the confiscated assets trust fund each financial year (s 12). Ensure the fee calculation is separately recorded in trust accounting and disclosed where statutory reporting requires.

5. Record-keeping and audit:

   • Keep contemporaneous records evidencing the provision of notices to the DPP (s 10), including the form used and the information provided.
   • Maintain a register of any interstate orders relied upon for recognition under the Act and contemporaneous copies of the interstate order and the statutory provision under which it was made, to show the mapping under ss 5-9A.

6. Stay current:

   • The mapping of corresponding laws and orders has been amended (see amendment history endnotes). Regularly consult the ACT legislation register for the most recent republication and any further amendments to ss 4-9A or sch 1.

7. Litigation and challenge readiness:

   • Because s 10(3) disclaims invalidity for non‑compliance, litigants should not plan to succeed in a jurisdictional challenge solely on failure to give the notice; instead, identify substantive grounds or other procedural defects. Keep full records to demonstrate compliance with the notice requirement as evidence if needed in court.

8. Cross‑jurisdictional diligence:

   • Where advising clients with assets in multiple jurisdictions, examine both the ACT regulation (ss 4-9A) and the originating interstate provisions to determine whether recognition in the ACT is available. Pay attention to versioning and any conditional prongs that limit the mapping’s application.

Following these steps will ensure compliance with the regulation’s operational requirements and will position advisers and agencies to use the regulation as a reliable checklist when assessing cross‑jurisdictional confiscation risk and administrative obligations.