Criminal Assets Recovery Regulation 2023

The regulation does not introduce new concepts; it implements concepts from the Criminal Assets Recovery Act 1990. The key concepts it engages are originating document, corresponding law, interstate orders, maximum allowable costs, and notice.

An originating document is a sealed copy of the originating process commencing proceedings in the Supreme Court (for an application) or the notice of motion by which an application is made. This distinction matters for service rules: the regulation requires personal service of originating documents. The concept is purely procedural but critical because defective service can delay or invalidate proceedings.

Corresponding law is a concept from section 4 of the Act. The regulation prescribes which interstate Acts correspond to the NSW Act. This is not reciprocal recognition of all orders; it is a list that the regulationmaker chooses. The list covers all Australian states and territories except, notably, the Commonwealth’s Proceeds of Crime Act 2002 (Cth). Federal proceeds of crime laws operate under a different framework, and the regulation does not declare the Commonwealth Act a corresponding law. This means Commonwealth forfeiture orders are not automatically recognised as interstate orders under the NSW Act; separate mechanisms would be needed.

Interstate assets forfeiture orders, interstate proceeds assessments or unexplained wealth orders, and interstate restraining orders are defined by reference to specific sections of the corresponding laws. The regulation picks out particular orders and declarations from each jurisdiction. For example, from Western Australia, only declarations under sections 22, 28, or 30 of the Criminal Property Confiscation Act 2000 are declared as interstate assets forfeiture orders; other WA orders are not. This specificity is deliberate: it ensures only orders that are functionally equivalent to NSW orders are recognised, avoiding mismatches in legal effect.

Maximum allowable costs for legal services are not a fixed number but are set by reference to rates determined by the Attorney General and published on the Department of Communities and Justice website. The regulation does not specify the rates themselves, creating a dynamic system. This means the amount that can be paid from restrained assets for legal fees depends on executive decision, not legislation. Practitioners must monitor the website to ensure compliance.

Fees payable to the NSW Trustee and Guardian are a key concept. The regulation creates a three-part fee structure: (a) 2.5% of the value of the interest in property, determined by the Trustee or the gross sale proceeds if sold; (b) actual costs and disbursements incurred by the Trustee; and (c) for income-producing property, 5.25% of gross income. The Trustee may waive or reduce fees, but this is discretionary, not a right. This fee structure directly affects the net return to a person whose property is ultimately released or to the state if forfeited. The costs and disbursements component is potentially open-ended, covering legal representation, agents’ fees, valuation fees, and costs of operating a business associated with the property. Business operation costs could be substantial: if the restrained interest includes a business, the Trustee’s costs of running that business are recoverable from the property.

Notice under section 65 of the Act is defined by the regulation in terms of service. For applications, notice is given when the originating document is served; for orders, when the minute of order is served. This clarifies when the time limits for responding start. Additionally, if the Commission seeks an exclusion order under sections 25(6) or 26(6), it must give notice of the grounds at the same time and in the same way as the application notice. This ensures the Commission is not ambushed by late disclosure of grounds.

Service methods are divided into two categories: personal service is mandatory for originating documents, minutes of orders, and notices to the Commission. But the Commission can resort to alternative service (UCPR substituted service, newspaper publication, or court-authorised methods) if satisfied that reasonable efforts at personal service have failed or would be unsuccessful. Newspaper publication requires both a Sydney daily and, if the person’s last known address is more than 50 km from Sydney GPO, a local newspaper. This dual publication requirement can be costly and may still not reach the person effectively. Service on the Commission and the NSW Trustee and Guardian is simpler: leaving at head office or registered post.

Corresponding laws under section 4(1) of the Act are prescribed in section 4 of the regulation. The seven listed jurisdictions are: Australian Capital Territory (Confiscation of Criminal Assets Act 2003), Northern Territory (Criminal Property Forfeiture Act 2002), Queensland (Criminal Proceeds Confiscation Act 2002), South Australia (Criminal Assets Confiscation Act 2005), Tasmania (Crime (Confiscation of Profits) Act 1993), Victoria (Confiscation Act 1997), and Western Australia (Criminal Property Confiscation Act 2000). Notably absent is the Commonwealth’s Proceeds of Crime Act 2002; also absent is any mention of Norfolk Island or other external territories. This matters for interstate cooperation: a freezing order under the Commonwealth Act cannot be enforced as an interstate restraining order under the NSW Act without separate application.

The regulation directly affects a narrow but significant set of actors: persons whose assets are the subject of restraint or forfeiture proceedings under the Criminal Assets Recovery Act 1990; the NSW Crime Commission, which is the primary applicant for orders; the NSW Trustee and Guardian, which manages restrained property; legal practitioners representing parties in those proceedings; and, indirectly, the Law Enforcement Conduct Commission.

Persons with restrained assets are the most affected. They face a financial burden not from the restraint itself but from the fees and costs deducted by the NSW Trustee and Guardian. The 2.5% fee on property value applies regardless of whether the property is ultimately forfeited or returned. If the property is sold, the fee is on gross sale proceeds, not net. For income-producing assets, the 5.25% gross income fee is an additional charge. Actual costs and disbursements are added on top. For a person whose assets are restrained but later released (because charges are dropped or the person is acquitted), these fees represent a permanent loss recoverable only if the court orders costs or if the Trustee exercises its discretion to waive or reduce fees. The regulation does not create a right to a refund of fees if restraint is lifted; that depends on other provisions of the Act.

The $150,000 cap on staged legal expenses under section 8 affects persons seeking to fund their legal defence from restrained assets. Legal fees above that amount require court approval under section 10B(3A)(a). This limit may constrain a person’s ability to mount a robust defence, especially in complex cases requiring multiple counsel or expert evidence. The cap is not indexed to inflation and was set in 2023; its real value will erode over time.

The maximum allowable costs for legal services under section 9 are set by Attorney General’s rates. These rates may be below market rates, especially for experienced senior counsel. This means a person paying legal fees from restrained assets may only recover costs at the government-set rates, not their actual legal costs. The shortfall must be funded from the person’s other assets or by lawyers accepting lower fees. The rates are published on the Department of Communities and Justice website and can change without legislative amendment, creating uncertainty.

The NSW Crime Commission is affected by the service rules. It must personally serve originating documents, minutes, and notices on defendants, which can be costly and difficult for persons avoiding service. However, the regulation gives the Commission a way out: if it is satisfied that reasonable personal service efforts have failed or would be unsuccessful, it can use alternative methods, including newspaper publication. The Commission must make that judgment and could face challenges if it resorts to alternative service too quickly. The cost of newspaper publication (Sydney daily plus local paper if needed) falls on the Commission or the restrained assets, and is likely recoverable as costs.

Legal practitioners for both the Commission and the defendant must track the Attorney General’s rates for allowable costs. They also need to be aware of the $150,000 cap for staged payments. For practitioners acting for restrained persons, ensuring that fee agreements align with maximum allowable costs is important if fees are to be paid from restrained assets. If fees exceed allowable costs, the shortfall must be recovered from other sources, which may not exist if all assets are restrained.

The NSW Trustee and Guardian is affected as the recipient of notice under section 10 of the regulation. It must be notified of exclusion order applications. More significantly, it is entitled to deduct fees under section 11. The Trustee has broad discretion to determine the value of the interest in property (subject to sale proceeds if sold). The fee calculation is self-executing: the Trustee can deduct fees from property or income. The regulation does not require court approval for the fees, though court supervision of the Trustee’s actions may be available under the Act or general law.

The Law Enforcement Conduct Commission is affected indirectly. Under section 31 of the Law Enforcement Conduct Commission Act 2016, the Criminal Assets Recovery Act applies to the Commission as it applies to the NSW Crime Commission. The regulation’s notice and service provisions therefore also affect the Commission when it seeks exclusion orders under sections 25(6) or 26(6). The regulation requires that notice of the grounds for exclusion be given at the same time and in the same way as the application notice. This imposes a timing discipline on the Commission.

Interstate law enforcement agencies are affected insofar as the regulation recognises their orders. If an interstate agency obtains a restraining order under a corresponding law and needs it enforced in NSW, the regulation provides the definitional basis. However, the regulation does not create enforcement machinery; that is in the Act. But without the regulation declaring an order as an interstate restraining order, enforcement would require a fresh application.

Businesses associated with restrained property are affected by the NSW Trustee and Guardian’s costs. The Trustee can recover costs of operating a business associated with the interest in property as part of actual costs. This could include staff wages, rent, supplies, and management fees. If the business is profitable, the 5.25% gross income fee applies on top. If the business is not profitable, the actual costs may eat into capital. The regulation does not cap these costs, and the Trustee’s decisions about business operations are not subject to explicit court oversight in the regulation itself.

The Director of Public Prosecutions and the Commissioner of Police are specifically excluded from the definition of “relevant person” in section 13(6). This means they are not entitled to the alternative service methods that the Commission can use; they must be served personally if required. But in practice, they are parties to proceedings and service on them is typically straightforward.

The regulation does not create duties or rights directly; it fills gaps in the Act. But it imposes or clarifies duties on the NSW Crime Commission, the NSW Trustee and Guardian, and persons affected by orders.

The NSW Crime Commission has a duty to serve originating documents, minutes of orders, and notices to the Commission personally. If personal service is impractical, the Commission must form a reasonable satisfaction that efforts have failed or would be unsuccessful before resorting to alternative methods. This is not a mere administrative preference; defective service could lead to proceedings being set aside or orders not taking effect. The Commission also has a duty, when giving notice under section 12(2), to give notice of the grounds for an exclusion order under sections 25(6) or 26(6) at the same time and in the same way as the application notice. This duty ensures the Commission has timely information to decide whether to intervene.

The Commission also has a right to use alternative service methods, including newspaper publication, but only if it is satisfied of the unsuccessful efforts. The regulation does not require court approval for alternative service unless the Commission seeks a court-authorised method under section 13(2)(c). For newspaper publication, the Commission must publish in a Sydney daily and, if the person’s last known address is more than 50 km from Sydney GPO, in a local newspaper. The notice must set out the terms of the order sought or made and the date. This creates a duty to include specific content; failure to do so may invalidate service.

The NSW Trustee and Guardian has a right to deduct fees from property it manages under section 11. The fee structure is mandatory in the sense that the Trustee is entitled to deduct those amounts. However, the Trustee may waive or reduce fees: this is a discretion, not a duty. The Trustee also has a duty, when determining value of the interest, to make a determination. If the property is sold, the value is the gross amount realised, which is objective. The Trustee also has a duty to receive notice under section 10: the regulation prescribes the Trustee as a person to whom notice of certain exclusion order applications must be given. The Act requires the applicant to give that notice; the Trustee’s duty is to receive it.

Persons affected by orders have a right to be served properly. The regulation mandates personal service for originating documents and minutes of orders. If the Commission uses alternative service, the person may challenge whether the Commission was reasonable in concluding personal service was unsuccessful. The regulation does not grant a right to object to the NSW Trustee and Guardian’s fees as such, but the person may have rights under the Act to seek court review of the Trustee’s decisions generally. The fee provisions are not self-executing against the person; the Trustee deducts from the property, and the person’s residual interest is reduced.

Persons with restrained assets have a right to request that legal fees up to the maximum allowable costs be paid from the property, subject to the $150,000 staged payment limit. Above that, court approval is needed. The regulation does not create this right; it is in the Act. But the regulation defines the limit and the rates. A person cannot demand payment of fees above the Attorney General’s rates from restrained assets, even if those rates are below market. This effectively limits the person’s choice of counsel if they rely on restrained assets to fund legal representation.

The Law Enforcement Conduct Commission has a right to be notified of applications for exclusion orders under sections 25(6) and 26(6). The regulation clarifies that notice of grounds must be given simultaneously with the application notice. This gives the Commission a procedural right to early information.

Correspondingly, the Commission and others have the right to serve documents on the NSW Trustee and Guardian or the Commission itself by leaving at head office with a staff member or by registered post to head office. This is simpler than personal service. The regulation authorises these methods without court order, as long as consistent with any Supreme Court orders.

The Director of Public Prosecutions and the Commissioner of Police are excluded from the definition of “relevant person” in service provisions. This means the alternative service methods available for the Commission are not available for service on the DPP or Police Commissioner; they must be served personally if the Act requires service on them. But this is not a duty on them directly; it is a limitation on the serving party.

Interstate agencies have a right to have their orders recognised under the regulation, but only if the orders are of the specified type. The regulation does not impose duties on them; it enables NSW authorities to act on their orders.

In terms of duties on private persons: the regulation does not impose direct duties on individuals. It regulates how state actors perform their functions. However, individuals facing asset restraint have the practical burden of monitoring the Trustee’s fee deductions and challenging them if excessive. The regulation’s fee provisions are opaque: the Trustee determines value, and actual costs are recoverable. There is no requirement for the Trustee to justify costs unless challenged.

The regulation itself does not create any penalties. It is a procedural regulation that specifies details under the Criminal Assets Recovery Act 1990. Penalties for non-compliance with the Act (such as disposing of restrained property contrary to a restraining order) are found in the Act, not the regulation. However, the regulation’s provisions affect enforcement in practical ways.

Improper service is a key enforcement risk. If the Commission serves an originating document or minute of order by alternative methods without first being reasonably satisfied that personal service has failed or would be unsuccessful, the service may be invalid. This could lead to the proceedings being set aside or orders not taking effect. The court has inherent jurisdiction to set aside irregular service. The Commission’s certificate of satisfaction is not conclusive; a court may inquire into whether reasonable efforts were made. The regulation requires the Commission to have reached the satisfaction; merely stating it in an affidavit may not be enough if the facts show otherwise.

Newspaper publication service under section 13(2)(b) must be in the correct newspapers: a Sydney daily, and if the last known residential address is more than 50 km from Sydney GPO, also in a local newspaper. Failure to publish in the correct newspaper could render service ineffective. The notice must also contain the terms of the order and the date. If the notice omits these, service is likely defective.

For service on the Commission itself under section 13(4), the authorised methods are leaving at head office with a person apparently a staff member, or sending by registered post to head office. If a person serves by ordinary post or by email, that service is not authorised by the regulation, and the court may find it invalid unless the court otherwise orders. Similarly, service on the NSW Trustee and Guardian under section 13(5) must follow the same methods.

The regulation does not create any offence for failing to give notice to the NSW Trustee and Guardian under section 10. The Act may provide that the application must be dismissed or stayed if required notice is not given, but that is a sanction from the Act, not the regulation. Similarly, if the Commission fails to give notice of grounds for exclusion orders at the same time as the application notice, the court may exclude the grounds or adjourn.

The fee provisions under section 11 are self-enforcing: the NSW Trustee and Guardian deducts fees from the property. There is no penalty for overcharging beyond what the regulation allows; the Trustee’s entitlement is at the prescribed rates. If the Trustee charges more than 2.5% of value, or 5.25% of gross income, or claims costs that are not actual, the person affected may seek a remedy in court. But the regulation does not impose a penalty for excessive deductions; it only defines what the Trustee may deduct. The Trustee’s discretion to waive or reduce fees means there is no penalty for not waiving; a failure to waive is not a breach.

The repeal and savings provision under section 14 ensures continuity: acts done under the old regulation continue to have effect. This prevents enforcement gaps. If the Commission had served a notice under the old regulation, that service remains valid.

The regulation itself is enforced through the court system: persons affected can challenge service, fees, or notice issues as part of the underlying proceedings. There is no standalone enforcement mechanism for the regulation. The regulation does not give rise to civil penalty proceedings or criminal offences.

One could argue that the regulation indirectly enforces the policy of the Act by setting low maximum allowable costs for legal services, thereby limiting the ability of persons with restrained assets to mount expensive defences. The $150,000 stage limit and the Attorney General’s rates constrain the flow of funds to legal practitioners. This could be seen as a form of enforcement cost shifting: the state reduces its exposure to legal fee claims from restrained assets. But this is not a penalty in the traditional sense.

The regulation’s interaction with the Uniform Civil Procedure Rules 2005 means that enforcement of service rules under those rules applies. If personal service is required and not effected, the court may set aside subsequent orders.

The regulation sits directly under the Criminal Assets Recovery Act 1990 (NSW), which is the primary legislation. Every substantive provision in the regulation is tied to a specific section of the Act (s 4 for corresponding laws and interstate orders, s 10B for legal expenses, s 16B for maximum allowable costs, ss 25, 26, 31C for notice to NSW Trustee, s 32D for fees, s 65 for notice and service). The regulation does not operate independently; it only fills in details left blank by the Act.

The regulation interacts with the law of each other Australian state and territory through the corresponding laws provisions. By prescribing the ACT, NT, Qld, SA, Tas, Vic, and WA Acts as corresponding laws, the regulation enables mutual recognition of restraining orders, forfeiture orders, and proceeds assessments across jurisdictions. The specific sections listed in sections 5, 6, and 7 ensure that only orders with equivalent legal effect are recognised. For example, only declarations under Western Australia’s sections 22, 28, or 30 count as interstate assets forfeiture orders; other WA orders, such as unexplained wealth declarations under different sections, may fall outside. This creates a patchwork: a person with assets in NSW and WA may face two separate regimes unless the order fits the declared categories.

The regulation does not interact with the Commonwealth’s Proceeds of Crime Act 2002. That Act has its own mutual recognition provisions and is not listed as a corresponding law. This means federal freezing orders are not automatically enforceable as interstate restraining orders under the NSW Act. The Commonwealth and NSW have separate cooperation mechanisms, but the regulation does not cover them. This omission is notable: given the frequency of federal proceeds of crime actions, the regulation’s silence means additional procedural steps are required to give effect to Commonwealth orders in NSW.

The regulation interacts with the Uniform Civil Procedure Rules 2005 (UCPR) in several places. Section 13(1) requires that originating documents, minutes of orders, and notices to the Commission be served personally in accordance with UCPR Part 10, Division 3. This imports the UCPR personal service rules. Section 13(2)(a) allows alternative service in accordance with UCPR Part 10 relating to service if personal service is not required. This incorporates the UCPR substituted service regime. The regulation does not create a standalone service code; it piggybacks on the UCPR. This means practitioners must be familiar with UCPR service rules, including what constitutes personal service, how to obtain substituted service orders, and time limits.

The regulation also interacts with the Law Enforcement Conduct Commission Act 2016 through the note in sections 12 and 13. That Act provides that the Criminal Assets Recovery Act applies to the Law Enforcement Conduct Commission in the same way as it applies to the NSW Crime Commission. Therefore, the regulation’s provisions on notice and service apply to the Commission when it acts under the Act. The Commission must serve notices under sections 25(6) and 26(6) in compliance with this regulation.

The regulation interacts with the powers of the NSW Trustee and Guardian generally. The Trustee and Guardian Act 2009 (NSW) governs the NSW Trustee and Guardian’s powers, but the regulation specifically authorises the Trustee to deduct fees from property it manages under the Criminal Assets Recovery Act. This is likely an exclusive fee regime for this Act, overriding any standard fee structure the Trustee might otherwise apply.

The Interpretation Act 1987 (NSW) is referenced in the note to section 3. Its definitions and interpretive provisions affect how the regulation is read. For example, the meaning of “service” or “give notice” may be informed by the Interpretation Act if not defined in the regulation.

The regulation interacts with the Subordinate Legislation Act 1989 (NSW), which mandated the repeal of the 2017 regulation on 1 September 2023. The new regulation was made to avoid a gap. The savings provision ensures continuity.

The regulation may interact with court rules about costs. If a person prevails and obtains costs from the Crime Commission, the maximum allowable costs under section 9 may limit the costs recoverable, as they reflect the rates allowed for legal services paid from restrained assets. This could affect costs assessments.

The regulation does not interact with human rights instruments specifically, but the limits on legal fees and the Commissioner’s ability to use alternative service could raise issues under the implied right to a fair trial or the right to legal representation. However, the regulation is valid subordinate legislation and does not override fundamental rights.

The Criminal Assets Recovery Regulation 2023 is a new regulation that repeals and replaces the Criminal Assets Recovery Regulation 2017. The 2017 regulation would have been automatically repealed on 1 September 2023 under section 10(2) of the Subordinate Legislation Act 1989. The new regulation commences on the day it is published on the NSW legislation website. That date is not stated in the text but would be on or shortly before 1 September 2023 to avoid a gap.

The regulation contains a savings provision in section 14(2): any act, matter, or thing that had effect under the old regulation continues to have effect under the new one. This preserves the validity of notices given, fees deducted, and services effected under the 2017 regulation.

The regulation itself has no subsequent amending instruments in the provided text. The user provided only the base regulation as at commencement. The dynamic element is the reference to Attorney General’s rates in section 9, which are “adjusted from time to time and published on the website”. That is not an amendment to the regulation but a variation of its content by reference to external, changing rates.

The fee percentages in section 11 (2.5% of value, 5.25% of gross income) are fixed at commencement and would require amendment to change. The $150,000 cap in section 8 is also fixed.

The corresponding laws lists in sections 4 through 7 could be amended by regulation if a new state or territory enacts a confiscation law, or if existing laws are amended and the specific section numbers change. The regulation currently lists specific section numbers (e.g., Queensland Act section 58 or 93ZZB). If Queensland renumbers its Act, the regulation would need amendment to maintain recognition.

No amendment history is provided in the source text beyond the repeal of the 2017 regulation.

The regulation text does not cite any cases or include a litigation history. As a subordinate instrument that commenced in 2023, there has been limited time for litigation. No court decisions interpreting this specific regulation are mentioned in the source, and no case law is incorporated by reference.

However, litigation under the principal Act may have touched on predecessor regulations, especially regarding service rules and NSW Trustee and Guardian fees. The 2017 regulation had identical or similar service and fee provisions. Cases may have considered whether personal service requirements were met, whether alternative service was properly used, or whether the Trustee’s fees were reasonable. But those cases are not in the source, and the instruction is not to invent cases.

The regulation itself may be challenged on grounds of invalidity if it is inconsistent with the Act or if the prescribed fee percentages are ultra vires. The Act gives the regulation-maker power to prescribe fees under section 32D(2). The regulation sets those fees as a percentage of value and income. If a court were to find that the regulation goes beyond the Act’s scope, the provisions could be struck down. No such litigation is recorded in the source.

Litigation may arise over the interpretation of “interstate restraining order” or “interstate assets forfeiture order” if the specific sections in corresponding laws are amended. For example, if the Northern Territory Act is amended and section 94 is renumbered, the regulation’s reference to that section may become inoperative until amended. A court would then need to interpret whether the order still falls within the definition.

The note in sections 12 and 13 referencing the Law Enforcement Conduct Commission Act 2016 suggests there may have been litigation about the Commission’s powers under the Act, but the regulation does not mention any.

Given the procedural nature of the regulation, most litigation will occur in the context of asset recovery proceedings, where service or notice issues are raised. The regulation’s provisions are likely to be cited routinely but rarely litigated standalone.

Several traps in this regulation warrant attention.

The $150,000 cap on staged legal expenses under section 8 is a hard limit for payments from restrained assets without court approval. But it is staged meaning it applies per stage of proceedings, per the Act. The regulation does not define what constitutes a stage; that is in the Act. However, practitioners might assume the cap applies to total legal fees across all stages, but it actually applies per stage. The regulation only prescribes the amount for the purposes of section 10B(3A)(a). If a person has multiple stages (e.g., interlocutory applications, trial, appeal), the cap resets, but the Act requires court approval for aggregate payments exceeding the cap? This is ambiguous and can trap both the person and the Commission.

Maximum allowable costs under section 9 are set by Attorney General’s rates, but those rates are not in the regulation. They are published on the Department of Communities and Justice website. The regulation says “as adjusted from time to time”. This means the rates can change without notice in the Government Gazette or legislation. If a person agrees to pay a lawyer $500 per hour but the allowable rate is $250, only $250 can be paid from restrained assets. The difference must come from personal funds, which may not exist if all assets are restrained. This effectively limits choice of counsel to those willing to work at government rates or take payment on contingency.

The 2.5% fee under section 11(1)(a) is on the value of the interest in the property, not the net value after deducting mortgage or other encumbrances. The regulation says “value of the interest in the property as determined by the NSW Trustee and Guardian” or “if the interest is disposed of by sale, the gross amount realised on the sale”. So if the property is worth $1 million but subject to a $800,000 mortgage, the fee is still 2.5% of $1 million (or gross sale proceeds), not the equity. The note does not say “net proceeds”. This is a trap: a restrained property may have little equity, but the Trustee still takes 2.5% of the gross value. Combined with the actual costs, this could eat up most of the equity, leaving the owner with nothing even if the restraint is lifted.

The 5.25% gross income fee under section 11(1)(c) is on gross income, not net income. For a rental property, if rent is $50,000 per year and expenses are $40,000, the fee is 5.25% of $50,000 ($2,625), not 5.25% of net income ($10,000, which would be $525). This increases the effective tax on the property. If the property generates losses, the Trustee still charges the fee (since it’s on gross income, not net). But if there is no income, the fee does not apply.

The NSW Trustee and Guardian can deduct actual costs and disbursements under section 11(1)(b). These include “legal representation costs”, “costs of obtaining legal advice”, “other legal costs”, “agents’ fees”, “valuation fees”, and “costs and expenses incurred in relation to the operation of a business”. “Other legal costs” and “agents’ fees” are open-ended. The Trustee could hire lawyers and agents at its own discretion, and the cost is borne by the property. There is no requirement that the fees be at market rates; the Trustee’s own in-house rates may apply. The regulation does not require the Trustee to obtain competitive quotes.

The service provisions: personal service is mandatory for originating documents, minutes, and notices to the Commission. But the Commission can use alternative service if it is “satisfied reasonable efforts to effect personal service have been or would be unsuccessful”. The phrase “or would be unsuccessful” is broad. The Commission does not need to attempt personal service first; it can pre-judge that it would fail. This could lead to service by newspaper publication on persons who could have been found with more effort. The person may never see the newspaper notice, leading to default orders.

The newspaper publication requirement: notice must be in a Sydney daily newspaper and, if the last known address is more than 50 km from Sydney GPO, in a local newspaper. If the person last lived in Byron Bay (over 700 km from Sydney), the Commission must publish in a local paper. But if the person’s last known address is outside NSW? The regulation does not cover that. The Commission might be forced to use court-authorised methods under section 13(2)(c). There is a trap for persons who move interstate: they may not receive any notice.

Section 12(2) requires notice of grounds under section 25(6) or 26(6) to be given at the same time and in the same way as the application notice. This is a strict timing requirement. If the applicant gives notice of the application but delays giving notice of grounds, the Commission may be able to argue that the grounds are not properly before the court.

The savings provision in section 14(2) says acts under the old regulation continue to have effect. But it does not say that all notices given under the old regulation are deemed to be given under the new regulation. There may be a gap if the old regulation had slightly different service requirements.

The regulation does not prescribe a time limit for the NSW Trustee and Guardian to determine the value of the interest. If the Trustee delays, the person may not know how much fee is being deducted. The Trustee could determine value at a time when property values are high.

Compliance with this regulation is relevant to three groups: the NSW Crime Commission, the NSW Trustee and Guardian, and persons affected by restraint orders facing fee deductions.

For the NSW Crime Commission, compliance starts with service of documents. When serving an originating process or minute of order, the Commission must ensure personal service in accordance with UCPR Part 10, Division 3. If the Commission intends to rely on alternative service, it must first form a reasonable satisfaction that personal service has been tried (and failed) or would be unsuccessful. This satisfaction should be documented in an affidavit or internal file note, setting out the steps taken or reasons why personal service would be futile. For alternative service by newspaper publication, the Commission must identify the correct newspapers: a Sydney daily, and if the person’s last known address is more than 50 km from Sydney GPO, a local newspaper in that district. The notice must include the terms of the order sought or made and the date. For service on the NSW Trustee and Guardian or the Commission itself, the Commission may use the simplified methods (leave at head office or registered post). If the Commission is the addressee, staff must accept service by any person who complies with section 13(4). Section 12(2) requires that, when giving notice of an application for an exclusion order under sections 25(6) or 26(6), the Commission must serve the grounds simultaneously with the application notice. The Commission should include the grounds in the same package or at least at the same time.

For the NSW Trustee and Guardian, compliance means charging fees strictly in accordance with section 11. The Trustee must determine the value of the interest in property, or use gross sale proceeds if sold. The 2.5% fee is calculated on that value. The Trustee should keep records of actual costs and disbursements, including legal costs, agents’ fees, valuation fees, and business operation costs. The Trustee must deduct only costs that are actually incurred, not estimated amounts. For income-producing property, the 5.25% fee is on gross income, net income is irrelevant. The Trustee may waive or reduce fees, but if it chooses not to, it must stick to the prescribed percentages. The Trustee should provide accountings to the court or the parties if requested.

For a person whose assets are restrained, compliance is more about vigilance than action. The person should request from the Commission proper service in accordance with the regulation. If served by newspaper, they should check whether the Commission properly satisfied itself that personal service was impractical. The person should also monitor the NSW Trustee and Guardian’s fee deductions. Request an itemised statement of the value determination, the 2.5% fee, and all actual costs. Scrutinise legal costs: are they for the Trustee’s benefit or the property’s? The regulation does not require the Trustee to justify costs, but the person can apply to the court for an order under the Act for review of the Trustee’s decisions. The person should also check that the maximum allowable costs for legal services under section 9 are not exceeded when paying lawyers from restrained assets. If the person’s lawyer charges above the Attorney General’s rates, the shortfall must be funded from other sources.

When engaging a lawyer, the person should discuss the limits on legal fees from restrained assets. The $150,000 cap per stage may require budget planning and court applications for higher amounts. The lawyer should keep records of time and rates to match allowable costs.

Business owners whose business assets are restrained should be aware that the NSW Trustee and Guardian can deduct costs of operating the business as actual costs. This could include staff salaries, rent, utilities, and management fees. The business owner should cooperate with the Trustee to minimise unnecessary costs. If the Trustee hires agents or lawyers at high rates, the business owner may object to the court.

For legal practitioners acting for the Commission or the person, compliance includes checking the current Attorney General’s rates on the Department of Communities and Justice website before any payment of legal fees from restrained assets. The rates may change, so regular checks are needed. Practitioners should also ensure that any application for payment of legal fees above $150,000 per stage is supported by evidence of the reasonableness of the fees and necessity.

For a person seeking to exclude property from restraint, section 10 requires that the applicant for the exclusion order give notice to the NSW Trustee and Guardian. The trustee is prescribed as a person to be notified. Failure to do so could lead to the exclusion application being dismissed or delayed.

In summary, compliance with this regulation is largely procedural but carries significant cost implications. All actors should keep clear documented evidence of service decisions, fee calculations, and notice timelines. The discretionary nature of the Commission’s satisfaction and the Trustee’s fee waivers means that documentation is essential for any subsequent challenge.