This Regulation is organised around several recurring operational concepts. Each is prescribed in the Regulation and performs a particular functional role in administering confiscation measures under the Act.

Corresponding laws and interstate orders (sections 4-7). The Regulation declares specific laws of other States to be “corresponding” to the NSW Act for the purposes of the Act’s s 4(1) definition of corresponding law (s 4). It also declares particular statutory provisions of other States to be interstate forfeiture orders, interstate pecuniary penalty orders, and interstate restraining orders for the Act’s relevant definitions (ss 5-7). The direct legal effect of these declarations is to bring certain foreign statutory instruments and orders within the NSW Act’s machinery where the Act uses those defined terms.

Forms and prescribed notice content (sections 8-11, Schedule 1). The Regulation prescribes the text and structure of multiple Forms that must be used for key Act processes: Form 1 for notice of application for recovery of interest in forfeited property (s 8, Sch 1), Form 2 for notice of application for return of or access to seized property (s 9, Sch 1), Form 3 as the application for a freezing notice (s 10(1), Sch 1), Form 4 as the freezing notice itself (s 10(2), Sch 1), Form 5 as the notice of issue of a freezing notice (s 10(3), Sch 1), and Form 6 as the authorised justice’s record of the issue of a freezing notice and the grounds relied on (s 11(1), Sch 1). Section 17 requires the prescribed forms to be adapted to comply with applicable rules of court regarding format and formal matters. The Regulation therefore standardises procedural documents and the evidentiary content the courts and parties will see in these processes.

Freezing notice mechanics and records (sections 10-11, Sch 1). The Regulation makes an application for a freezing notice (other than a telephone freezing notice) a Form 3 application (s 10(1)). A freezing notice must be issued in Form 4 (s 10(2)); the notice of issue must be given in Form 5 using prescribed methods (personal delivery, facsimile or leaving with an adult at last known residence/business) (s 10(3)). The authorised justice must cause a record to be made of the issue and execution of freezing notices in Form 6, and that record must be kept by the appropriate Local Court registrar for not less than six years (s 11(1)(a)-(b)). The Regulation confers on registrars the ability to issue and revoke certificates that withhold documents or parts of documents from inspection on specific public safety or investigative ground (s 11(3)-(6)).

Appropriate officers (section 13). The Regulation prescribes particular persons or offices as appropriate officers for the purposes of the Act’s definition: the Commonwealth Director of Public Prosecutions, the Commissioner of Police, and the New South Wales Crime Commission for a number of functions listed in s 13(c)(i)-(vii). This prescription allocates who can perform the Act’s specified functions and therefore shapes who may initiate particular processes under the Act.

Serious offence definition (section 14). The Regulation expands the Act’s definition of “serious offence” for the purposes of s 7(c) of the Act by prescribing particular Commonwealth and State offences (offences under the Classification (Publications, Films and Computer Games) Enforcement Act 1995 with a maximum penalty of 100 penalty units or more, and s 578C of the Crimes Act 1900) (s 14). This affects which conduct meets the statutory threshold for several Act powers that depend on the “serious offence” concept.

Fees, costs and interest (sections 15-16 and Schedule 2). The Regulation prescribes how interest is calculated on property returned under the Act (s 15), and it prescribes fees payable to the NSW Trustee and Guardian or Commissioner of Police in relation to property under their control (s 16 and Sch 2). Schedule 2 sets annual fees as the greater of 0.22% of the property value as fixed by the Trustee/Commissioner, or $220, plus recovery of actual costs and disbursements including legal costs, agents’ fees, valuation fees and costs of operating a business associated with the property. Additional fees apply in respect of income derived from property and sale proceeds (Sch 2).

Administrative prohibitions and saving (sections 17-19). The Regulation prohibits charging a filing fee for applications or other process under the Act (s 18). It requires that the forms be adapted to applicable court rules (s 17). Lastly, it repeals the 2015 Regulation and saves any acts, matters or things in effect under that regulation so they continue under the 2021 Regulation (s 19).

These main concepts combine to standardise procedural steps, allocate roles, determine who pays and how much, and define which interstate instruments are recognized under the NSW Act.

The Regulation directly affects a defined set of public offices, court officers, private parties and property interests. The principal categories and the statutory mechanics that touch each category follow.

Investigative and prosecuting authorities. The Regulation prescribes the Commonwealth Director of Public Prosecutions and the Commissioner of Police as appropriate officers for all functions under the Act (s 13(a)-(b)). The New South Wales Crime Commission is prescribed as an appropriate officer for a specified set of functions such as applying for forfeiture and drug proceeds orders, applying for restraining orders in relation to drug trafficking offences, and various ancillary applications (s 13(c)(i)-(vii)). Those prescriptions determine which agencies can initiate or conduct specified steps under the Act and thereby affect investigative and prosecutorial workload and decision-making.

Authorised officers and authorised justices. The freezing notice procedure requires an authorised officer to apply in Form 3 and an authorised justice to consider and, if satisfied, issue a freezing notice in Form 4 (s 10(1)-(2), Sch 1). The forms and record-keeping obligations (Form 6) allocate tasks to authorised justices to record reasons and particulars when issuing freezing notices and for registrars to retain those records (s 11(1), Sch 1).

Local Court registrars. Registrars are specified as the custodians of freezing notice records and must keep the Form 6 records for not less than six years after the freezing notice is issued (s 11(1)(b)). Registrars also have discretion to issue certificates withholding parts of documents from inspection where disclosure may jeopardise safety or investigations, and to revoke those certificates after considering submissions (s 11(3)-(6)). Registrars will therefore hold and control access to often-sensitive material and exercise gatekeeping functions.

Director of Public Prosecutions, Commissioner of Police and NSW Crime Commission as notice recipients. The prescribed recipients of statutory notices include the Director of Public Prosecutions and, in Local Court applications, the Commissioner of Police; in certain contexts the NSW Crime Commission and the NSW Trustee and Guardian are also prescribed recipients (s 8-9). Parties bringing applications must serve notices on these agencies in the forms prescribed.

Owners, defendants and third-party claimants. Individuals and entities who own property, who have property seized, or who claim interests in forfeited property are directly affected. Form 1 (s 8, Sch 1) is a notice used where a person claims an interest in forfeited property and applies for recovery of such interest; Form 2 (s 9, Sch 1) is used for applications to have seized property returned or to obtain access. Served notices, freezing orders and the fees regime interact directly with the financial position of such persons by freezing assets, allowing custodial control by the Trustee or Police, applying fees (Sch 2) and setting interest rates for returned property (s 15).

NSW Trustee and Guardian and Commissioner of Police as custodians. The Regulation explicitly contemplates property being under the control of the NSW Trustee and Guardian or the Commissioner of Police, prescribes fees payable to those bodies for that control, and identifies the kinds of recoverable costs (s 16 and Sch 2). Those bodies are therefore administrative actors with the capacity to incur and recover costs against the property they manage, including legal representation and business operating costs (Sch 2 1(b)).

Courts and rules officers. The courts which hear confiscation matters must receive prescribed forms and treat service according to s 12 and the Uniform Civil Procedure Rules (s 12; s 17 requires adaptation to rules of court). The Regulation therefore binds court processes to the prescribed forms and to the rules governing service and filing, except filing fees are prohibited (s 18).

Interstate actors. By declaring certain interstate provisions and orders to be corresponding or interstate orders for the purposes of the Act (ss 4-7), the Regulation affects parties and statutory orders that originate in other Australian jurisdictions, making it possible for those interstate orders to be treated within the NSW Act framework.

Secondary or incidental affected groups. Legal practitioners, valuers and agents will be affected because the Trustee or Commissioner may recover costs for legal representation, valuation fees and agents’ fees from property under control (Sch 2 1(b)). Landlords, tenants and real-estate managers are affected by the income-derived fees (Sch 2 2), and businesses associated with property that is controlled by the Trustee or Commissioner may see operating costs recovered under Sch 2 1(b).

In short, the Regulation allocates responsibilities and costs among investigative agencies, courts, custodians of property and private parties, and it shapes administrative discretion around record access and the form and timing of key procedural steps.

The Regulation prescribes specific duties and confers procedural rights linked to the practice of confiscation and the handling of property under the Act. The obligations generally fall into categories of notice and service, form and record-keeping, custodian fees and cost recovery, and prescribed roles for particular offices.

Notice and service duties. Notices for specific applications must be given in the Form prescribed. Section 8 requires a notice of application for recovery of interest in forfeited property to be given in Form 1 and served on the DPP, the Commissioner of Police for Local Court applications, and, where applicable, the NSW Crime Commission and the NSW Trustee and Guardian (s 8). Section 9 requires that notices for applications for return of or access to seized property be given in Form 2 and served on the DPP and the Commissioner of Police (s 9). For freezing notices, the Regulation requires an application (other than telephone applications) be in Form 3 (s 10(1)), a freezing notice in Form 4 (s 10(2)), and notice of issue to be given in Form 5 by one of the methods listed, including personal service, facsimile (including electronic transmissions under the Act’s definition) or by leaving with a person over 16 at the last known residence or business (s 10(3)). Section 12 directs that notices required in proceedings under the Act must be served personally or otherwise as the court may direct, and that personal service is effected in accordance with the Uniform Civil Procedure Rules unless this Regulation otherwise provides (s 12).

Form and record-keeping duties. Form 6 is the record an authorised justice must make of the issue of a freezing notice and it must be kept by the appropriate Local Court registrar for at least six years (s 11(1)(a)-(b)). An authorised justice must also cause a record to be made of unsuccessful applications for freezing notices, and that record must be kept for the same period (s 11(2)). Local Court registrars are empowered to issue certificates that withhold documents or parts of documents from inspection where disclosure could jeopardise safety or investigations (s 11(3)-(5)), and registrars may revoke those certificates after considering submissions (s 11(6)). Section 17 requires the prescribed forms to be adapted to comply with relevant rules of court; that is, parties and courts must align the prescribed content with the applicable court format and formal requirements.

Custodian duties and rights to recover fees and costs. Section 16 makes the NSW Trustee and Guardian or the Commissioner of Police entitled to prescribed fees for services in relation to property under their control, and Schedule 2 sets out the fee structure. Schedule 2, item 1 provides an annual fee that is the greater of 0.22% of the property’s value as fixed by the Trustee/Commissioner or $220, plus an amount equal to the actual costs and disbursements incurred in relation to the property, including legal representation, valuation fees and the costs of operating a business associated with the property. Item 2 prescribes fees payable in relation to property from which income is derived, including 5.775% of gross income and a 2.75% rate if income is rent where an agency charge has been incurred. Item 3 prescribes a 2.75% fee on gross sale proceeds where the court directs sale or disposition. These provisions give custodians explicit entitlement to recover set percentages and costs against controlled property.

Interest calculation on returned property. Section 15 prescribes that interest payable on returned property is to be calculated from the date the property was sold or otherwise disposed of, and the rate is the “standard rate” or, if none, the rate applicable from time to time in relation to money invested for trust matters in a common fund under the NSW Trustee and Guardian Act 2009, s 104 (s 15). This defines the temporal and rate basis for any interest awards when property is returned under s 42S(1) of the Act.

Prescribed roles and functions. Section 13 prescribes particular offices as appropriate officers for certain Act functions. The Commonwealth DPP and the Commissioner of Police are prescribed for “all functions” of an appropriate officer under the Act (s 13(a)-(b)). The NSW Crime Commission is prescribed for a list of functions (s 13(c)(i)-(vii)), including applying for specific orders and making ancillary applications such as setting aside dispositions contravening restraining orders. This allocation is a statutory duty/right mapping: the bodies listed have the statutory standing to perform the roles specified.

Prohibition of filing fees. Section 18 provides that a filing fee must not be charged for applications or other process under the Act. That is an affirmative protection for applicants and a duty on courts and registrars not to charge filing fees arising from Act processes.

Record preservation and continuity. Section 19 repeals the 2015 Regulation but saves acts, matters and things that had effect under the repealed regulation, ensuring continuity. It also provides that references to a Form include references to the corresponding Form in the repealed Regulation (s 19).

Taken together these duties and rights create discrete obligations around form and process, confer entitlements to fee recovery for custodians, and allocate procedural control over freezing notices and access to records. They also shape parties’ operational choices, including whether and when to bring applications and the likely costs associated with property under custodian control.

The Regulation itself does not create standalone criminal offences or new statutory penalties beyond those contained in the Confiscation of Proceeds of Crime Act 1989. Its enforcement operates through administrative, procedural and financial mechanisms that are implemented within the Act’s framework. The Regulation therefore functions as a set of administrative rules governing how the Act’s enforcement machinery runs, rather than as a penal code.

Court enforcement and confirmation requirements. One enforcement-related mechanism is the freezing notice procedure. Form 4 explicitly contains a direction that an application to confirm the notice is to be made to the appropriate court by an authorised officer no later than 14 days after the issue of the notice (Form 4, Sch 1). The requirement to seek confirmation binds authorised officers to lodge a follow-up court application within a set period, failing which the legal basis for the freezing notice may lapse under the Act’s own provisions. The Regulation therefore enforces temporal discipline on freezing notices through the content of the prescribed form.

Custodian recovery of fees and costs. The Regulation prescribes fees payable to the NSW Trustee and Guardian or Commissioner of Police for property under their control (s 16 and Sch 2). That creates an enforcement-like financial mechanism: custodians are entitled to recover percentages of property values, income-derived fees and costs incurred. The practical effect is that property under custodian control will bear fees and costs, enforceable administratively by the Trustee or Commissioner when administering the property.

Registrar powers and access limitations. Section 11 confers upon Local Court registrars the power to issue certificates that withhold documents or parts of documents from inspection where disclosure is likely to jeopardise personal safety or seriously compromise an investigation (s 11(3)-(5)). Registrars may also revoke such certificates after receiving submissions (s 11(6)). The mechanism is administrative but enforceable by the court system: registrars control access to records and thereby can prevent or limit disclosure, which in turn shapes the enforcement environment around sensitive investigations.

Service and procedural compliance. Section 12 directs how notices are to be served, and s 17 requires forms to be adapted to court rules. Non-compliance with service requirements or the prescribed forms may be remedied, challenged or fatal to an application in court. The Regulation therefore sets procedural prerequisites that courts can enforce through ordinary contempt, rejection of improperly served documents or orders invalidating defective process, subject to the Act and the courts’ inherent powers. However neither the Regulation nor Schedule 2 contain express provisions for sanctions such as fines or imprisonment; enforcement is conducted within the Act’s and the courts’ ordinary remedial processes.

Records retention and evidentiary effects. The six-year retention period for freezing notice records (s 11(1)(b)) creates an administrative obligation, and registrars’ certification powers affect parties’ access to evidence. The Regulation thus gives courts and court officers instruments to manage evidence disclosure and preservation, which in turn influences enforcement and prosecutorial capacity.

Filing fee prohibition. Section 18’s prohibition on charging filing fees for applications or other processes under the Act creates an enforceable duty on courts and registrars not to charge. If a filing fee were charged contrary to section 18, that would be inconsistent with the Regulation, and corrective steps could be taken through court administration channels.

In sum, the Regulation provides a framework of procedural obligations, custodial fee entitlements and record-control powers that are enforced through existing court and administrative procedures rather than by newly-created penal provisions within the Regulation itself.

The Regulation is expressly designed to operate in a legal ecosystem of the Confiscation of Proceeds of Crime Act 1989, statutes in other Australian jurisdictions, court rules and the NSW Trustee and Guardian Act 2009. Its interaction with other laws is explicit in its text.

Interaction with the Act. The Regulation repeatedly frames its provisions “for the purposes of the Act,” referencing specific Act sections when prescribing forms, defining who is an appropriate officer, and specifying record-keeping and service rules (see ss 3, 8-11, 12, 13, 15, 16, 18). The Regulation therefore functions as subordinate legislation that determines procedural and administrative details necessary for the practical operation of the Act’s powers, such as freezing, forfeiture, and return of property.

Interstate statutes and reciprocity. Sections 4-7 expressly declare particular statutes and particular provisions in other Australian jurisdictions to be “corresponding laws” and to amount to interstate forfeiture, pecuniary penalty or restraining orders for the Act’s definitions. This legislative mapping creates legal reciprocity, ensuring that particular orders made under other States’ laws are treated as orders the NSW Act recognises. The declared provisions are identified by statute name and section number, giving definitive scope to what will be treated as corresponding or interstate orders (ss 4-7).

Interaction with the Uniform Civil Procedure Rules and rules of court. Section 12 requires that notices be served personally or otherwise as the court may direct, and s 12(b) states that personal service is to be effected in accordance with the Uniform Civil Procedure Rules 2005, Part 10, unless the Regulation provides otherwise. Section 17 requires prescribed forms to be adapted so as to comply with the format and formal requirements of the rules of court or regulations applicable to the respective courts. These cross-references mean the Regulation does not replace court process rules but must be read and implemented in conjunction with them.

Reference to the NSW Trustee and Guardian Act 2009. Section 15 prescribes how interest is to be calculated on returned property, setting the rate as the standard rate or, if there is no standard rate, the rate applicable to money invested for trust matters in a common fund established under the NSW Trustee and Guardian Act 2009, s 104. That ties the Regulation’s interest measure to trust investment practice under a separate statute.

Continuity with the repealed Regulation. Section 19 repeals the Confiscation of Proceeds of Crime Regulation 2015 but saves the continuing effect of acts, matters or things that had effect under it, and treats references to a Form as including the corresponding Form in the 2015 Regulation. This is an internal legal housekeeping provision which ensures continuity of process between the two subordinate instruments.

Linkages to investigatory and prosecutorial institutions. By prescribing who is an appropriate officer (s 13), the Regulation allocates functions across Commonwealth and State prosecutorial bodies (Commonwealth DPP, NSW Police Commissioner) and the NSW Crime Commission. That allocation shapes the interface between NSW law and Commonwealth prosecutorial resources, and between state investigative functions and courts.

No prescriptive conflicts or overrides. The Regulation does not purport to override the substantive law in the Act; rather it provides the administrative modalities by which Act processes are to be done. For example, it does not expand the substantive definition of forfeiture beyond the Act but declares which interstate instruments are to be recognised for the Act’s purposes.

In practice, practitioners must therefore read the Regulation alongside: the Act (to ascertain the substantive grounds and consequences of confiscation measures), the Uniform Civil Procedure Rules and the relevant courts’ practice directions (for service and file formatting), the NSW Trustee and Guardian Act (for applicable interest rates), and the specified interstate statutes (where interstate orders are in play).

The Regulation itself contains limited amendment history within its own text. Two provisions are relevant.

Commencement and replacement of earlier Regulation. Section 2 states that the Regulation commences on the day on which it is published on the NSW legislation website, and the note to section 2 states that the Regulation repeals and replaces the Confiscation of Proceeds of Crime Regulation 2015, which would otherwise have been repealed on 1 September 2021 by the Subordinate Legislation Act 1989, s 10(2). Section 1 names the instrument the Confiscation of Proceeds of Crime Regulation 2021. Those materials identify this instrument as the successor to the 2015 Regulation.

Repeal and saving provision. Section 19(1) repeals the 2015 Regulation. Section 19(2) contains a saving provision: any act, matter or thing that, immediately before repeal, had effect under the 2015 Regulation continues to have effect under the 2021 Regulation. Section 19(3) provides that a reference in the 2021 Regulation to a Form includes the corresponding Form in the 2015 Regulation. These clauses preserve continuity for existing processes and documents while transitioning to the updated Regulation.

Lack of further internal amendment history. The text supplied contains no further expressed amendments or a schedule of earlier or later amendments to the 2021 Regulation. The Regulation does not itself note any subsequent amending instruments or historical changes beyond the repeal of the 2015 Regulation and the saving clauses. The Regulation’s form provisions (Schedule 1) and fee schedule (Schedule 2) are presented as the operative versions as at commencement; any later changes would need to be looked for in the consolidated statute database or amendment instruments beyond the text provided.

Practical implication for practitioners. Given the express repeal and saving provisions, parties should treat forms and processes under the 2015 Regulation as still valid where they correspond to the new forms, but they should adopt the 2021 prescribed forms and the fees and record-keeping requirements in Schedule 2 and section 11 going forward. Because the Regulation will be effective from publication, any implementation or transitional practice must align with the commencement date set under section 2.

For a complete amendment chronology beyond what the instrument itself provides, users should consult the consolidated legislative database or Parliament’s statute book to see if the 2021 Regulation has since been amended; the text supplied does not contain that subsequent history.

The Regulation contains no reported decisions, cases, or litigation references. It does not itself cite or summarise any judicial determinations about its provisions or about the Act’s application. The instruments and forms in Schedule 1 and the administrative rules in the body of the Regulation are procedural and administrative, and the text does not identify any litigation outcomes or precedent related to them.

Points likely to generate litigation or judicial argument. Although the Regulation contains no litigation history, it prescribes procedures and entitlements that are likely to be the subject of contested applications under the Act. The Regulation itself indicates the types of court processes where disputes commonly arise by prescribing forms and notice requirements for:

• Applications for recovery of an interest in forfeited property, using Form 1 (s 8, Sch 1). Disputes over the nature and extent of a claimant’s interest, standing to bring the application and whether the claimant was involved in the offence are the types of factual and legal questions likely to be litigated in such proceedings.

• Applications for return of or access to seized property, using Form 2 (s 9, Sch 1). The Regulation prescribes service on the DPP and Commissioner of Police which may lead to contested hearings about the legitimacy of seizure or continuing retention.

• Freezing notice applications and confirmations, using Forms 3, 4, 5 and the authorised justice’s record in Form 6 (s 10-11, Sch 1). Freezing notices involve urgent interim restraint of property and attract disputes about the sufficiency of grounds, urgency, adequacy of notice and confirmation within the 14-day period specified in Form 4.

• Registrar certificates withholding documents, under s 11(3)-(6). The scope of a registrar’s discretion to withhold documents on safety or investigative grounds, and the scope of an interested party’s right to seek revocation of such a certificate, could be the subject of challenge or application for disclosure.

• Fees and recovery by custodians. Schedule 2 prescribes percentages and allowable recoverable costs. Disputes could arise concerning the Trustee or Commissioner’s valuation of property, the inclusion of particular disbursements or legal costs, or the calculation of income-derived fees (5.775% or 2.75% where rent and agency charges apply). Challenges about the reasonableness of deducted costs, or the method of valuation, might come before the court or in administrative review.

Available remedies and likely forums. The Regulation frames these matters as court-administered processes under the Act, so disputes will be litigated in the courts that hear Act matters, subject to the Act’s own procedural regime. Because the Regulation ties service and form to the Uniform Civil Procedure Rules and the courts’ rules (s 12 and s 17), any procedural challenge about defective service or non-compliance with prescribed forms may be resolved by the relevant court applying its powers.

No cases named in the Regulation. The Regulation does not name any cases or supply judicial interpretation. Practitioners should therefore treat the Regulation as a set of current procedural prescriptions and look to case law developed under the Act for interpretive guidance, while noting that such case law is not contained in the Regulation itself.

The Regulation contains multiple procedural and administrative pitfalls that can catch practitioners or parties out if not followed with precision. Below are specific “gotchas” grounded in the Regulation’s text and structure.

Strict form requirements and adaptation to court rules. Several critical notices and applications must be made in the prescribed Form (s 8-11, Schedule 1). Section 17 requires that the prescribed forms be adapted to comply with the format and formal matters in the rules of court applicable to the respective courts. The requirement to use the prescribed forms is not a mere suggestion: the Regulation links statutory processes to those Forms. Practitioners should not assume that a custom or different template will suffice. Failure to use the prescribed form, or to adapt it correctly to the court’s formatting requirements, may lead to procedural rejection or delay.

Service modalities and the Uniform Civil Procedure Rules. Section 12 requires personal service or service otherwise as the court may direct, and directs personal service to be effected in accordance with the Uniform Civil Procedure Rules Part 10, except where the Regulation provides otherwise. For freezing notice issuance, Form 5 allows service personally, by facsimile (which the Act defines to include electronic communications), or by leaving the notice with a person aged over 16 at the last known place of residence or business (s 10(3), Form 5). Practitioners must be careful to comply with these specific service options and not assume that other electronic methods or substituted service will be effective.

Telephone applications and evidentiary record. The Regulation contemplates telephone freezing notice applications. Form 3 includes a note that for an application by telephone the authorised justice should complete the form for record purposes as if made in person by the applicant but not on oath (Form 3). This creates evidentiary and record-keeping wrinkles: the affidavit content in Form 3 lists multiple grounds that must be sworn or affirmed in writing for in-person applications; telephone applications are treated differently. Practitioners should ensure the authorised justice properly completes Form 6 to record the nature of the application and whether the justice was satisfied that the notice was required urgently (Form 6).

Time limit to confirm a freezing notice. Form 4 states that an application to confirm the notice must be made to the appropriate court by an authorised officer no later than 14 days after the notice (Form 4). Practitioners must ensure that the follow-up application for confirmation is lodged within that period. Failing to seek confirmation within 14 days may undermine the legal basis for the freezing action taken.

Registrar certificates and withheld material. Section 11 allows a Local Court registrar to issue a certificate that certain records or parts of records not be made available for inspection where disclosure would jeopardise a person’s safety or seriously compromise an investigation (s 11(3)-(5)). The certificate must be kept with the document and may be revoked after considering submissions (s 11(5)-(6)). Parties seeking access should not assume immediate disclosure; they must be prepared to make submissions to the registrar to seek revocation.

Record retention obligation. Registrars must keep records made under s 42H(1) concerning freezing notices for not less than six years after issue (s 11(1)(b)). Parties should preserve their own contemporaneous records because court registries will retain records but access may be limited by certificates.

Fees payable to custodians and minimum charges. Schedule 2 sets out fees which may be charged by the NSW Trustee and Guardian or the Commissioner of Police for property under their control. Item 1(a) provides that for each calendar year the custodian is entitled to the greater of 0.22% of the value of the property as fixed by the custodian or $220. Item 1(b) also entitles the custodian to recover actual costs and disbursements, including legal costs and the costs of operating a business associated with the property. These entitlements mean that property subject to custodial control may be diminished over time by annual fees and recoverable costs. Owners and claimants must anticipate and plan for these charges in any recovery strategies.

Income-derived fees are substantial and defined. Schedule 2 item 2(a) prescribes 5.775% of gross income derived from property as a fee, and item 2(b) prescribes 2.75% of income where rent is received and an agency charge has been incurred. These are fixed percentages, not discretionary, and will apply irrespective of the custodian’s internal efficiency. Parties should account for these percentages when assessing the net return from income-producing assets under custodian control.

Sale proceeds fee. Schedule 2 item 3 prescribes a fee equal to 2.75% of the gross amount realised by the sale or disposition of a property when the court directs sale or disposition. This is a deduction from gross proceeds that claimants and the State will need to accommodate in distribution calculations.

No filing fee but other costs persist. Section 18 prohibits filing fees for Act processes. This might be misread as meaning the regime is cost-free; it is not. The Trustee or Commissioner may recover significant fees and disbursements under Sch 2, and parties will still bear costs associated with legal representation. Moreover, the custodian’s entitlement to actual costs includes legal representation and valuation fees (Sch 2 1(b)).

Continuity with prior Forms. Section 19(3) provides that a reference to a Form includes the corresponding Form in the repealed 2015 Regulation. That helps transition, but practitioners must be careful when relying on older documents to ensure they meet the 2021 Regulation’s content and formatting requirements as adapted under s 17.

Prescribed meaning of “serious offence.” Section 14 prescribes certain offences as serious for the purposes of the Act. Claims and applications that depend on the “serious offence” threshold must be analysed against this expanded list. Misclassifying an offence could be dispositive of a freezing or restraining power.

Limited delegation detail. While the Regulation prescribes certain offices as appropriate officers and sets out record-keeping and service rules, it leaves implementation detail to authorised officers, authorised justices and court registrars. That means there can be local variation in practice, and practitioners should obtain local court practice notes or directions to avoid procedural pitfalls.

Taken together, the Regulation creates multiple technical obligations and financial drains on property under control. The common practical errors will be failing to use the prescribed form, mis-executing service, missing the 14-day confirmation window for freezing notices, underestimating custodian fees and failing to contest registrar certificates when disclosure is essential.

Compliance with this Regulation requires attention to form, service, timetables, custodial fees and record practices. Below are concrete steps for the principal actors and for legal practitioners representing affected parties, grounded in the Regulation’s text.

For authorised officers seeking a freezing notice (s 10(1), Sch 1 Forms 3-6):

• Prepare the application in Form 3 for any non-telephone application. Ensure the statutory declaration/affidavit elements listed in Form 3 are completed, covering the authorised officer’s status, the grounds for belief about charges, convictions or commission of serious offences, the tainted or substitutable nature of the property, and any relevant drug trafficking proceeds grounds where applicable (Form 3).
• If using a telephone application, ensure the authorised justice completes Form 3 for record purposes as if the application were made in person, noting the exception regarding oath (Form 3 note). Record whether the justice was satisfied urgency rendered telephone application necessary (Form 6 question 1 and 2).
• If a freezing notice is issued, ensure it is issued in Form 4 and that an application to confirm the freezing notice is made to the appropriate court no later than 14 days after the issue (Form 4). Ensure proof of that confirmation application is filed in the court record.
• Deliver notice of the issue using Form 5 by one of the methods prescribed: personally, by facsimile (as defined), or by leaving with a person over 16 at the last known residence or business (s 10(3), Sch 1). Maintain proof of service consistent with the Uniform Civil Procedure Rules.

For Local Court registrars and authorised justices (s 11, Sch 1):

• Record the authorised justice’s consideration and the grounds relied on in Form 6 when a freezing notice is issued, including whether the application was made in person, by facsimile or by telephone, the authorised justice’s factual/suspected grounds and the time and date details (Form 6).
• Keep the Form 6 record, and records of unsuccessful freezing notice applications, for at least six years after issue or refusal respectively (s 11(1)(b), (2)).
• If considering whether to withhold documents, issue a certificate under s 11(3) only where disclosure would likely jeopardise safety or seriously compromise an investigation. Keep the certificate with the document and consider submissions from interested parties before revocation (s 11(3)-(6)).

For persons claiming an interest in forfeited property or seeking return/access of seized property (ss 8-9, Sch 1):

• Use the prescribed Form 1 (for recovery of interest in forfeited property) or Form 2 (for return of or access to seized property). Complete the schedule describing the property and ensure the Form is filed and served on the listed recipients: DPP, Commissioner of Police (for Local Court applications), and where relevant, the NSW Crime Commission or NSW Trustee and Guardian (s 8-9).
• Ensure service is effected according to section 12 and the Uniform Civil Procedure Rules or as the court directs. Keep proof of service because defective service may invalidate or delay consideration.

For the NSW Trustee and Guardian or Commissioner of Police when controlling property (s 16, Sch 2):

• Apply the fee structure in Schedule 2. Each year, charge the greater of 0.22% of the property’s value (as fixed by the custodian) or $220 (Sch 2 1(a)). Track and document the valuation methodology when fixing property value.
• Collect actual costs and disbursements incurred in relation to the property, itemising legal representation, valuation fees, agents’ fees and business operating costs to justify recoveries under Sch 2 1(b).
• For income-producing property, calculate fees as 5.775% of gross income, unless the income is rent and an agency cost applies in which case a 2.75% fee applies (Sch 2 2). For court-directed sale or disposition, deduct 2.75% of gross sale proceeds (Sch 2 3).
• Maintain transparent records to support each component of recoverable costs and fees given potential disputes from owners or claimants.

For lawyers and practitioners advising clients:

• Verify the “serious offence” status relevant to your client’s matter under s 14. The Regulation prescribes particular offences that meet the Act’s s 7(c) definition; ensure the charged or suspected offence maps correctly to that list.
• Do not assume filing fees apply; confirm no filing fee is charged for applications or other process under the Act (s 18). However plan for likely custodial fees and recoverable disbursements under Schedule 2.
• Ensure all prescribed Forms are adapted in accordance with the courts’ format and formal requirements (s 17). Before filing, consult the relevant court’s practice directions to confirm paper size, electronic filing processes, and authentication requirements.
• For contested registrar certificates or withheld documents, prepare to make submissions to the registrar for revocation of a certificate under s 11(6). Challenge certificate decisions promptly and with evidence if disclosure is necessary for your client’s case.
• For freezing notices issued by telephone, obtain and preserve the authorised justice’s recorded reasons and the Form 6 certificate showing whether the justice was satisfied about urgency and grounds (Form 6). Build any challenge to a freezing notice around gaps or insufficiency in the authorised justice’s recorded particulars if they exist.

Administrative and procedural housekeeping:

• Keep copies of all served notices and proofs of service consistent with the methods allowed by the Regulation and the Uniform Civil Procedure Rules.
• When valuing property for fee base calculations, obtain and retain formal valuation documents because the custodian’s calculation of the 0.22% fee depends on value “as fixed by the NSW Trustee and Guardian or Commissioner of Police” (Sch 2 1(a)); disputes about valuation will hinge on these documents.
• Monitor whether the Regulation has been amended or replaced after publication. Section 19 preserved continuity with the 2015 Regulation, but any future amendments will require practice changes.

Following these steps will ensure that parties comply with the Regulation’s requirements on form, service, record-keeping, fee calculation and custodian recoveries, thereby minimising procedural risk and exposure to inadvertent forfeiture-related costs.