Part 8Miscellaneous

Part 8—Miscellaneous 214—Authorised officers to be issued identity cards (1) An authorised officer (other than the DPP or a police officer) must be issued with an identity card— (a) containing the person's name and a photograph of the person; and (b) stating that the person is an authorised officer for the purposes of this Act. (2) An authorised officer (other than the DPP) must, at the request of a person in relation to whom the authorised officer intends to exercise any powers under this Act, produce for the inspection of the person— (a) in the case of an authorised officer who is a police officer—his or her warrant card; or (b) in any other case—his or her identity card. 216—Manner of giving notices etc A notice, order or other document required or authorised by this Act to be given to or served on a person may be given or served— (a) by delivering it personally to the person or an agent of the person; or (b) by leaving it for the person at the person's place of residence or business with someone apparently over the age of 16 years; or (c) by posting it to the person or agent of the person at the person's or agent's last known place of residence or business; or (d) in any other manner prescribed by regulation. 217—Registration of orders made under corresponding laws (1) An order under a corresponding law may be registered, on application by the Administrator, in the Supreme Court. (2) On registration, the order has, in relation to property in this State to which it is expressed to apply, the same effect as it has in relation to property in the State or Territory in which it was made but as if it were made in favour of the Crown in right of this State. (3) However, the Court may make adaptations or modifications to the order (as it applies in this State) the Court considers necessary or desirable for the effective operation of the order in this State. 218—Certain proceedings to be civil (1) Proceedings on an application for a freezing order, a restraining order or a confiscation order are civil proceedings. (2) Except in relation to an offence under this Act— (a) the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of this Act; and (b) the rules of evidence applicable in civil proceedings apply to proceedings under this Act. 219—Consent orders (1) A court may make an order in a proceeding under Part 3, Part 4 or Part 5 with the consent of— (a) the parties to the proceeding; and (b) each person that the court has reason to believe has an interest in property the subject of the proceeding. (2) An order may be made— (a) without consideration of the matters that the court would otherwise consider in the proceeding; and (b) if the order is an order under section 47(1)(b)—before the end of the period of 6 months referred to in section 47(1)(b). (3) Despite any other provision of this Act, if a court is satisfied that an agreement has been reached between a person and the DPP and either— (a) the agreement provides for the person to make a payment to the Crown instead of property of the person being forfeited under this Act; or (b) the agreement provides for the person to make a payment to the Crown instead of the DPP applying for a confiscation order against the person, the court may make any orders necessary to give effect to the agreement. (4) An order may be made under subsection (3) requiring a person to make a payment to the Crown despite any other provision of this Act and irrespective of whether the payment represents the whole of the value of the person's interest in the property. (5) If an order is made in relation to property under subsection (3), the property is taken to not be liable to forfeiture under this Act (and any forfeiture of the property under this Act that occurred before the order is, on the making of the order, taken to be of no effect, subject to an order of the court to the contrary). 220—Onus and standard of proof (1) The applicant in any proceedings under this Act bears the onus of proving the matters necessary to establish the grounds for making the order applied for. (2) Subject to section 47(7) and section 98, any question of fact to be decided by a court on an application under this Act is to be decided on the balance of probabilities. 221—Applications to certain courts (1) If, during the course of criminal proceedings before a court in respect of a serious offence, the DPP applies for an order under this Act relating to the offence, the court must deal with the application during the course of the criminal proceedings unless satisfied by the defendant that to do so would not be appropriate in the circumstances. (2) If an application for an order under this Act is made to a court before which a person was convicted of a serious offence— (a) the application may be dealt with by the court; and (b) any power in relation to the relevant order may be exercised by the court, whether or not the court is constituted in the same way as when the person was convicted of the offence. 222—Proof of certain matters (1) A certificate of conviction of an offence that complies with a requirement of the Evidence Act 1929— (a) is admissible in civil proceedings under this Act; and (b) is evidence of the commission of the offence by the person to whom it relates. (2) In proceedings— (a) on an application for an order under this Act; or (b) ancillary to such an application; or (c) for the enforcement of an order made under this Act, the transcript of any examination is evidence of the answers given by a person to a question put to the person in the course of the examination. (3) In proceedings for an offence against this Act, an allegation in the complaint or information that a person named in the complaint or information was on a specified date an authorised person in relation to this Act, or a specified provision or provisions of this Act, will be accepted, in the absence of proof to the contrary, as proof of the authorisation. 223—Stay of proceedings The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which a court may stay proceedings under this Act that are not criminal proceedings. 224—Effect of confiscation scheme on sentencing Despite any provision of the Sentencing Act 2017, in determining sentence in respect of a person's conviction of a serious offence, a court— (a) may have regard to any cooperation by the person in resolving any action taken against the person under this Act; and (b) must not have regard to any forfeiture (whether under this Act or a corresponding law), pecuniary penalty order or recognised Australian pecuniary penalty order that relates to the offence or that might result from conviction for the offence, to the extent that the forfeiture or order applies to— (i) proceeds of the offence; or (ii) if the conviction has resulted in the person becoming a prescribed drug offender—property that was owned by or subject to the effective control of the person on the conviction day for the offence; and (c) must have regard to any forfeiture (whether under this Act or a corresponding law), pecuniary penalty order or recognised Australian pecuniary penalty order that relates to the offence or that might result from conviction for the offence, to the extent that the forfeiture or order applies to any other property; and (d) must not have regard to any literary proceeds order that relates to the offence. 225—Deferral of sentencing pending determination of confiscation order If— (a) an application is made for a confiscation order in respect of a person's conviction of a serious offence to the court before which the person was convicted; and (b) the court has not, when the application is made, passed sentence on the person for the offence, the court may, if satisfied that it is reasonable to do so in all the circumstances, defer passing sentence until it has determined the application for the confiscation order. 226—Appeals (1) A person— (a) against whom a confiscation order is made; or (b) who has an interest in property against which a forfeiture order is made; or (c) who has an interest in property that is declared in an order under section 123 to be available to satisfy a pecuniary penalty order or literary proceeds order, may appeal against the confiscation order, forfeiture order or order under section 123— (d) in the case of an order made in relation to a conviction of a serious offence—as if the order was, or was part of, the sentence imposed on the person in respect of the offence; or (e) in any other case—as if the person had been convicted of the serious offence to which the order relates and the order was, or was part of, the sentence imposed on the person in respect of the offence. (2) The DPP— (a) has the same right of appeal as a person referred to in subsection (1) has under this section; and (b) may appeal against a refusal by a court to make an order as if such an order had been made and the DPP was appealing against that order. (3) On an appeal under this section, the court may confirm, discharge or vary the order. (4) Nothing in this section affects any other right of appeal. 227—Costs and exemplary or punitive damages (1) A court may, if— (a) a person brings, or appears at, proceedings under this Act— (i) to prevent a forfeiture order or restraining order from being made against property of the person; or (ii) to have property of the person excluded from a forfeiture order or restraining order; and (b) the person is successful in those proceedings; and (c) the court is satisfied that the person was not involved in any way in the commission of the serious offence in respect of which the forfeiture order or restraining order was sought or made, order the Crown to pay the person costs in connection with the proceedings or such part of those costs as is determined by the court. (1a) However, the court may not award exemplary or punitive damages to the person. (2) To avoid doubt, the costs referred to in subsection (1) are not limited to costs of a kind that are normally recoverable by the successful party to civil proceedings. 228—Interest (a) money of a person is seized or forfeited under this Act; and (b) not less than one month after the seizure or forfeiture, the money (or an equal amount of money) is required under this Act to be paid back to the person or the person is required to be compensated by the Crown under this Act in respect of the seizure or forfeiture, the person is entitled to be paid interest on the money at the prescribed rate. (2) An amount payable by the Crown under this section is recoverable as a debt. (3) Except as provided by this section, no interest is payable by the Crown in respect of property seized or forfeited under this Act. 229—Effect of a person's death (1) A notice authorised or required to be given to a person under this Act is, if the person has died, taken to be given to the person if given to the person's legal representative. (2) A reference in this Act to a person's interest in property or a thing includes, if the person has died, a reference to an interest in the property or thing that the person had immediately before his or her death. (3) Nothing in this Act prevents an order from being applied for and made— (a) in respect of a person's interest in property or a thing; or (b) on the basis of the activities of a person, after the death of the person. 229A—Annual report relating to prescribed drug offenders (1) The Attorney‑General must, on or before 30 September in each year, lay before both Houses of Parliament a report on the operation of the amendments enacted by the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Act 2016 during the financial year ending on the preceding 30 June. (2) A report under this section must include the following information for the financial year to which the report relates: (a) the number of persons who became prescribed drug offenders during that period; (b) the number of restraining orders made during that period in relation to persons who, if convicted of the serious offence to which the restraining order relates, will become prescribed drug offenders; (c) details of property forfeited under this Act during that period that was owned by or subject to the effective control of a prescribed drug offender on the conviction day for the conviction offence. (3) A report required under this section may be incorporated into any other report required to be laid before both Houses of Parliament by the Attorney‑General. 230—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Regulations under this Act may— (a) be of general application or limited application; and (b) make different provision according to the matters or circumstances to which they are expressed to apply; and (c) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister or the DPP.