Proceeds of Crime Act 2002

CHAPTER 1 - INTRODUCTION  

PART 1-1 - PRELIMINARY  

SECTION 1   1   Short title  
This Act may be cited as the Proceeds of Crime Act 2002.

SECTION 2   Commencement  

2(1)  
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.


Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent 11 October 2002
2. Sections 3 to 338 A single day to be fixed by Proclamation, subject to subsection (3) 1 January 2003 (Gazette 2002, No. GN44)

Note:

This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

2(2)  
Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.

2(3)  
If a provision covered by item 2 of the table does not commence under subsection (1) within the period of 6 months beginning on the day on which it receives the Royal Assent, it commences on the first day after the end of that period.

SECTION 3   Identifying defined terms  

3(1)  
Many of the terms in this Act are defined in the Dictionary in Chapter 6.

3(2)  
Most of the terms that are defined in the Dictionary in Chapter 6 are identified by an asterisk appearing at the start of the term: as in "*proceeds". The footnote with the asterisk contains a signpost to the Dictionary.

3(3)  
An asterisk usually identifies the first occurrence of a term in a section (if not divided into subsections), subsection or definition. Later occurrences of the term in the same provision are not usually asterisked.

3(4)  
Terms are not asterisked in headings, notes, examples, explanatory tables, guides, outline provisions or diagrams.

3(5)  
If a term is not identified by an asterisk, disregard that fact in deciding whether or not to apply to that term a definition or other interpretation provision.

3(6)  
The following basic terms used throughout the Act are not identified with an asterisk:


Terms that are not identified
Item This term: is defined in:
1 charged section 338
2 convicted section 331
3 deal section 338
4 derived section 336
5 property section 338

SECTION 4   4   Application of the Criminal Code  
Chapter 2 of the Criminal Code applies to all offences against this Act.

Note:

Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

PART 1-2 - OBJECTS  

SECTION 5   5   Principal objects  
The principal objects of this Act are:


(a) to deprive persons of the *proceeds of offences, the *instruments of offences, and *benefits derived from offences, against the laws of the Commonwealth or the *non-governing Territories; and


(b) to deprive persons of *literary proceeds derived from the commercial exploitation of their notoriety from having committed offences; and


(ba) to deprive persons of *unexplained wealth amounts that the person cannot satisfy a court were not derived or realised, directly or indirectly, from certain offences; and


(c) to punish and deter persons from breaching laws of the Commonwealth or the non-governing Territories; and


(d) to prevent the reinvestment of proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts in further criminal activities; and


(da) to undermine the profitability of criminal enterprises; and


(e) to enable law enforcement authorities effectively to trace proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts; and


(f) to give effect to Australia's obligations under the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, and other international agreements relating to proceeds of crime; and


(g) to provide for confiscation orders and restraining orders made in respect of offences against the laws of the States or the *self-governing Territories to be enforced in the other Territories.

PART 1-3 - OUTLINE OF THIS ACT  

SECTION 6   6   General  
This Act establishes a scheme to confiscate the proceeds of crime. It does this by:


(a) setting out in Chapter 2 processes by which confiscation can occur; and


(b) setting out in Chapter 3 ways in which Commonwealth law enforcement agencies can obtain information relevant to these processes; and


(c) setting out in Chapter 4 related administrative matters.

It concludes with miscellaneous provisions and with definitions and other interpretive material.

Note:

See also Part IAE of the Crimes Act 1914 (video link evidence).

SECTION 7   7   The confiscation scheme (Chapter 2)  
Chapter 2 sets out a number of processes relating to confiscation:


(aa) freezing orders limiting withdrawals from accounts with financial institutions before courts decide applications for restraining orders to cover the accounts (see Part 2-1A); and


(a) restraining orders prohibiting disposal of or dealing with property (see Part 2-1); and


(b) forfeiture orders under which property is forfeited to the Commonwealth (see Part 2-2); and


(c) forfeiture of property to the Commonwealth on conviction of a serious offence (see Part 2-3); and


(d) pecuniary penalty orders requiring payment of amounts based on benefits derived from committing offences (see Part 2-4); and


(e) literary proceeds orders requiring payment of amounts based on literary proceeds relating to offences (see Part 2-5); and


(f) unexplained wealth orders requiring payment of unexplained wealth amounts (see Part 2-6).

SECTION 8   Information gathering (Chapter 3)  

8(1)  
Chapter 3 sets out 5 ways to obtain information:


(a) examining any person about the affairs of people covered by examination orders (see Part 3-1); and


(b) requiring people, under production orders, to produce property-tracking documents or make them available for inspection (see Part 3-2); and


(c) requiring financial institutions to provide information and documents relating to accounts and transactions (see Part 3-3); and


(d) requiring financial institutions, under monitoring orders, to provide information about transactions over particular periods (see Part 3-4); and


(e) searching for and seizing tainted property or evidential material, either under search warrants or in relation to conveyances (see Part 3-5).

8(2)  


Chapter 3 also authorises the disclosure, to certain authorities for certain purposes, of information obtained under that Chapter or certain other provisions (see Part 3-6).

SECTION 9   9   Administration (Chapter 4)  


Chapter 4 sets out the following administrative matters:

(a)  

the powers and duties of the Official Trustee (see Part 4-1);

(b)  the provision of legal assistance (see Part 4-2);

(c)  the Confiscated Assets Account (see Part 4-3);

(d)  charges over restrained property for payment of certain amounts (see Part 4-4);

(e)  enforcement of interstate orders in certain Territories (see Part 4-5).

SECTION 10   10   Miscellaneous (Chapter 5)  


Chapter 5 deals with miscellaneous matters.

SECTION 11   11   Interpreting this Act (Chapter 6)  


Chapter 6 contains the Dictionary, which sets out a list of all the terms that are defined in this Act. It also sets out the meanings of some important concepts.

PART 1-4 - APPLICATION  

Division 1 - General  

SECTION 12   Act to bind Crown  

12(1)  
This Act binds the Crown in right of the Commonwealth, each of the States and each of the *self-governing Territories.

12(2)  
This Act does not make the Crown liable to be prosecuted for an offence.

SECTION 13   13   Act to apply both within and outside Australia  


This Act extends, except so far as the contrary intention appears:


(a) to acts, matters and things outside *Australia, whether or not in or over a foreign country; and


(b) to all persons, irrespective of their nationality or citizenship.

SECTION 14   14   Application  


This Act applies in relation to:


(a) an offence committed at any time (whether or not any person is convicted of the offence); and


(b) a person's conviction of an offence at any time;

whether the offence or conviction occurred before or after the commencement of this Act.

SECTION 14A   Concurrent operation of State and Territory laws  

14A(1)  
This Act does not exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.

14A(2)  
Subsection (1) does not apply to the *national unexplained wealth provisions.

Note:

For the interaction between the national unexplained wealth provisions and a law of a State or Territory, see section 14L.

Division 2 - The national unexplained wealth provisions  

Subdivision A - General  

SECTION 14B   Constitutional basis of the national unexplained wealth provisions  

What this section is about

14B(1)  
This section sets out the constitutional basis of the *national unexplained wealth provisions. National unexplained wealth provisions

14B(2)  
The national unexplained wealth provisions are:


(a) the *main unexplained wealth provisions; and


(b) the *participating jurisdiction information gathering provisions; and


(c) the *unexplained wealth machinery and transitional provisions. Main unexplained wealth provisions

14B(3)  
The main unexplained wealth provisions are:


(a) section 20A and Part 2-6; and


(b) the other provisions of this Act in so far as they relate to that section or that Part; and


(c) instruments made under this Act for the purposes of a provision referred to in paragraph (a) or (b). Participating jurisdiction information gathering provisions

14B(4)  
The participating jurisdiction information gathering provisions are:


(a) section 14M and Schedule 1; and


(b) the other provisions of this Act in so far as they relate to that section or that Schedule; and


(c) instruments made under this Act for the purposes of a provision referred to in paragraph (a) or (b). Unexplained wealth machinery and transitional provisions

14B(5)  
The unexplained wealth machinery and transitional provisions are:


(a) the following provisions (the main machinery and transitional provisions ):


(i) sections 14A to 14L and 14N;

(ii) the definitions of adoption Act , amendment reference , cooperating State , express amendment , information gathering , main machinery and transitional provisions , main unexplained wealth provisions , national unexplained wealth provisions , non-participating State , participating jurisdiction information gathering provisions , participating State , post-amended version 1 of this Act , post-amended version 2 of this Act , pre-amended version of this Act, referral Act , relevant law 1 , relevant law 2 , special confiscation law , text reference 1 , text reference 2 , unexplained wealth and unexplained wealth machinery and transitional provisions in section 338;

(iii) Schedule 2; and


(b) the other provisions of this Act in so far as they relate to any of the main machinery and transitional provisions; and


(c) instruments made under this Act for the purposes of a provision referred to in paragraph (a) or (b). Application in participating States

14B(6)  
The application of the *national unexplained wealth provisions in a *participating State is based on:


(a) the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliaments of the participating States under paragraph 51(xxxvii) of the Constitution; and


(b) the other legislative powers that the Commonwealth Parliament has under the Constitution. Application in non-participating States

14B(7)  
The application of the *national unexplained wealth provisions (other than the *unexplained wealth machinery and transitional provisions) in a *non-participating State is based on:


(a) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and


(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.

14B(8)  
The application of the *unexplained wealth machinery and transitional provisions in a *non-participating State that:


(a) was a *participating State because it had referred to the Commonwealth Parliament:


(i) *text reference 1; and

(ii) *text reference 2; and

(iii) the *amendment reference; and


(b) ceased to be a participating State because it terminated either or both of the following:


(i) the referral of text reference 1;

(ii) the referral of the amendment reference; and


(c) has not terminated the referral of text reference 2;

is based on:


(d) the legislative powers that the Commonwealth Parliament has because of the referral of text reference 2 under paragraph 51(xxxvii) of the Constitution; and


(e) the other legislative powers that the Commonwealth Parliament has under the Constitution.

14B(9)  
The application of the *unexplained wealth machinery and transitional provisions in a *non-participating State that:


(a) was a *participating State because it had:


(i) adopted *post-amended version 1 of this Act; and

(ii) adopted *post-amended version 2 of this Act; and

(iii) referred to the Commonwealth Parliament the *amendment reference; and


(b) ceased to be a participating State because it terminated either or both of the following:


(i) the adoption of post-amended version 1 of this Act;

(ii) the referral of the amendment reference; and


(c) has not terminated the adoption of post-amended version 2 of this Act;

is based on:


(d) the legislative powers that the Commonwealth Parliament has because of the adoption of post-amended version 2 of this Act under paragraph 51(xxxvii) of the Constitution; and


(e) the other legislative powers that the Commonwealth Parliament has under the Constitution.

14B(10)  
The application of the *unexplained wealth machinery and transitional provisions in a *non-participating State not covered by subsection (8) or (9) is based on:


(a) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and


(b) the other legislative powers that the Commonwealth Parliament has under the Constitution. Application in a self-governing Territory

14B(11)  
The application of the *national unexplained wealth provisions in a *self-governing Territory is based on:


(a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and


(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.

Despite section 2H of the Acts Interpretation Act 1901, thenational unexplained wealth provisions as applying in a self-governing Territory are laws of the Commonwealth.

Application outside Australia

14B(12)  
The application of the *national unexplained wealth provisions outside *Australia is based on:


(a) the legislative powers that the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and


(b) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxix)) and section 122 of the Constitution; and


(c) the other legislative powers that the Commonwealth Parliament has under the Constitution.

SECTION 14C   What is a participating State ?  

Participating State

14C(1)  
A State is a participating State if, for the purposes of paragraph 51(xxxvii) of the Constitution, the Parliament of the State:


(a) has, by its *referral Act, referred to the Commonwealth Parliament:


(i) *text reference 1 (see subsection (2)); and

(ii) *text reference 2 (see subsection (3)); and

(iii) the *amendment reference (see subsection (4));
before the enactment of the Unexplained Wealth Legislation Amendment Act 2018; or


(b) has, by its *adoption Act:


(i) adopted *post-amended version 1 of this Act (see subsection (5)); and

(ii) adopted *post-amended version 2 of this Act (see subsection (6)); and

(iii) referred to the Commonwealth Parliament the amendment reference;
after the enactment of the Unexplained Wealth Legislation Amendment Act 2018. Text reference 1

14C(2)  
Text reference 1 of a State means the matters to which the *pre-amended version of this Act would relate if *express amendments were made to it in the terms, or substantially in the terms, of *relevant law 1, but excluding matters to which the pre-amended version of this Act otherwise relates. Text reference 2

14C(3)  
Text reference 2 of a State means the matters to which the *pre-amended version of this Act would relate if *express amendments were made to it in the terms, or substantially in the terms, of *relevant law 2, but excluding matters to which the pre-amended version of this Act otherwise relates. Amendment reference

14C(4)  
The amendment reference of a State means the matters relating to:


(a) *unexplained wealth (see section 14D); and


(b) *information gathering (see section 14E);

to the extent of making laws with respect to those matters by making *express amendments of this Act.

Post-amended version 1 of this Act

14C(5)  
Post-amended version 1 of this Act , in relation to the *adoption Act of a State, means this Act as amended by:


(a) *relevant law 1; and


(b) any other *express amendments of this Act that:


(i) were enacted at any time after the enactment of relevant law 1 but before the enactment of the adoption Act; and

(ii) were not amendments of the *main machinery and transitional provisions (see subsection 14B(5));

to the extent that this Act as so amended is a law with respect to *text reference 1 or the *amendment reference referred to the Commonwealth Parliament by the Parliament of another State for the purposes of paragraph 51(xxxvii) of the Constitution.

Post-amended version 2 of this Act

14C(6)  
Post-amended version 2 of this Act , in relation to the *adoption Act of a State, means this Act as amended by:


(a) *relevant law 2; and


(b) any other *express amendments of this Act that:


(i) were enacted at any time after the enactment of relevant law 2 but before the enactment of the adoption Act; and

(ii) were amendments of the *main machinery and transitional provisions (see subsection 14B(5));

to the extent that this Act as so amended is a law with respect to *text reference 2 or the *amendment reference referred to the Commonwealth Parliament by the Parliament of another State for the purposes of paragraph 51(xxxvii) of the Constitution.

Certain things do not affect a participating State's status

14C(7)  
A State is a participating State even if the State's *referral Act or *adoption Act provides that:


(a) the reference to the Commonwealth Parliament of *text reference 1, *text reference 2 or the *amendment reference is to terminate in particular circumstances; or


(b) the adoption of *post-amended version 1 of this Act or *post-amended version 2 of this Act is to terminate in particular circumstances; or


(c) the reference to the Commonwealth Parliament of the amendment reference does not include the matter of including a provision in section 20A or Part 2-6 that:


(i) requires a person pay an amount otherwise than by order of a court; or

(ii) requires or permits property (within the meaning of subsection 14D(2)) to be restrained, forfeited or seized otherwise than by order of a court; or


(d) the reference to the Commonwealth Parliament of text reference 1, text reference 2 or the amendment reference has effect only:


(i) if and to the extent that the matter is not included in the legislative powers of the Commonwealth Parliament (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); or

(ii) if and to the extent that the matter is included in the legislative powers of the Parliament of the State.
When a State ceases to be a participating State

14C(8)  
A State ceases to be a participating State if:


(a) in the case where the Parliament of the State has referred to the Commonwealth Parliament *text reference 1 and *text reference 2 - either or both of those references terminate; or


(b) in the case where the Parliament of the State has adopted the *post-amended version 1 of this Act and *post-amended version 2 of this Act - either or both of those adoptions terminate.

14C(9)  
A State ceases to be a participating State if:


(a) the State's referral of the *amendment reference terminates; and


(b) subsection (10) does not apply to the termination.

14C(10)  
A State does not cease to be a participating State because of the termination of its referral of the *amendment reference if:


(a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and


(b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and


(c) that State's amendment reference, and the amendment reference of every other State, terminates on the same day. Other definitions

14C(11)  
In this Act:

adoption Act
, of a State, means the Act of the State that:


(a) adopts *post-amended version 1 of this Act; and


(b) adopts *post-amended version 2 of this Act; and


(c) refers the *amendment reference to the Commonwealth Parliament.

express amendment
of this Act means the direct amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act.

pre-amended version of this Act
, in relation to the *referral Act of a State, means this Act as originally enacted and as subsequently amended by amendments enacted at any time before the enactment of the referral Act of the State.

referral Act
, of a State, means the Act of the State that refers *text reference 1, *text reference 2 and the *amendment reference to the Commonwealth Parliament.

relevant law 1
means Schedules 2 and 4 to the Unexplained Wealth Legislation Amendment Act 2018.

relevant law 2
means Schedule 1 to the Unexplained Wealth Legislation Amendment Act 2018.

SECTION 14D   Meaning of unexplained wealth  

14D(1)  
For the purposes of the *amendment reference of a State (see subsection 14C(4)), unexplained wealth means property or wealth that might not have been lawfully acquired.

14D(2)  
The meaning of lawfully acquired , property and wealth in subsection (1) includes, but is not limited to, the meaning of those terms in this Act as in force immediately before the enactment of the first *referral Act of a State.

SECTION 14E   14E   Meaning of information gathering  


For the purposes of the *amendment reference of a State (see subsection 14C(4)), information gathering means the production or provision of information for the purposes of, or relevant to, the taking of action, or the institution of proceedings, under a law of the State.

SECTION 14F   When a non-participating State is a cooperating State  

States that have referred text references 1 and 2

14F(1)  
A *non-participating State is a cooperating State if:


(a) an *express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4-3 (about sharing proceeds), was enacted; and


(b) before the amendment was enacted, the State was a *participating State; and


(c) after the amendment was enacted, the State ceased to be a participating State because it terminated either or both of the following:


(i) the referral of *text reference 1;

(ii) the referral of the *amendment reference; and


(d) the termination was effected by a proclamation that was made under the State's *referral Act for the purposes of this section; and


(e) the State has not terminated its referral of *text reference 2.

Note:

Under Division 2 of Part 4-3 (which is about sharing proceeds of confiscated assets under the national cooperative scheme), a non-participating State that is a cooperating State is treated in the same way as a participating State.

States that have adopted the post-amended versions of this Act

14F(2)  
A *non-participating State is also a cooperating State if:


(a) an *express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4-3 (about sharing proceeds), was enacted; and


(b) before the amendment was enacted, the State was a *participating State; and


(c) after the amendment was enacted, the State ceased to be a participating State because it terminated either or both of the following:


(i) the adoption of *post-amended version 1 of this Act;

(ii) the referral of the *amendment reference; and


(d) the termination was effected by a proclamation that was made under the State's *adoption Act for the purposes of this section; and


(e) the State has not terminated its adoption of *post-amended version 2 of this Act.

14F(3)  
Despite subsections (1) and (2), a *non-participating State ceases to be, or is not, a cooperating State if a declaration under subsection (4) is in force in relation to the State.

14F(4)  
The Minister may, by legislative instrument, declare that a State is not a *cooperating State.

14F(5)  
A declaration made under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.

Subdivision B - Rollback of particular express amendments  

SECTION 14G   Effect of rollback by participating States on unexplained wealth proceedings  

When this section applies

14G(1)  
This section applies if:


(a) a proclamation is made under the *referral Act or *adoption Act of a *participating State for the purposes of this section; and


(b) the proclamation declares that an *express amendment of this Act (other than this Subdivision) is not to apply to proceedings covered by subsection (3), (4) or (5); and


(c) the proclamation comes into force in the period of 6 months beginning on the day the amendment is enacted. Application of this Act to proceedings

14G(2)  
This Act applies to the proceedings as if the amendment had not been enacted. Proceedings for restraining orders

14G(3)  
Proceedings are covered by this subsection if:


(a) the proceedings are instituted while the proclamation is in force; and


(b) the proceedings are for the making of a *restraining order under section 20A in relation to a *suspect; and


(c) the affidavit supporting the application for the order states that an *authorised officer suspects either or both of the following:


(i) that the suspect has committed a *relevant offence of a *participating State;

(ii) that the whole or any part of the suspect's *wealth was derived from a relevant offence of a participating State.
Proceedings for unexplained wealth orders

14G(4)  
Proceedings are covered by this subsection if:


(a) the proceedings are instituted while the proclamation is in force; and


(b) the proceedings are for the making of an *unexplained wealth order (including a *preliminary unexplained wealth order) in relation to a *suspect; and


(c) the application for the order states that an *authorised officer suspects that the whole or any part of the suspect's *wealth was derived from a *relevant offence of a *participating State. Proceedings for other orders

14G(5)  
Proceedings are covered by this subsection if:


(a) the proceedings are instituted while the proclamation is in force; and


(b) the proceedings are for the making of an order that relates to:


(i) a *restraining order made in proceedings covered by subsection (3); or

(ii) an *unexplained wealth order (including a *preliminary unexplained wealth order) made in proceedings covered by subsection (4).

SECTION 14H   Effect of rollback by self-governing Territories on unexplained wealth proceedings  

When this section applies

14H(1)  
This section applies if:


(a) a law (the disapplying law ) of a *self-governing Territory is made for the purposes of this section; and


(b) the law declares that an *express amendment of this Act (other than this Subdivision) is not to apply to proceedings covered by subsection (3), (4) or (5); and


(c) the disapplying law comes into force in the period of 6 months beginning on the day the amendment is enacted. Application of this Act to proceedings

14H  
This Act applies to the proceedings as if the amendment had not been enacted. Proceedings for restraining orders

14H(3)  
Proceedings are covered by this subsection if:


(a) the proceedings are instituted while the disapplying law is in force; and


(b) the proceedings are for the making of a *restraining order under section 20A in relation to a *suspect; and


(c) the affidavit supporting the application for the order states that an*authorised officer suspects either or both of the following:


(i) that the suspect has committed a *Territory offence;

(ii) that the whole or any part of the suspect's *wealth was derived from a Territory offence.
Proceedings for unexplained wealth orders

14H(4)  
Proceedings are covered by this subsection if:


(a) the proceedings are instituted while the disapplying law is in force; and


(b) the proceedings are for the making of an *unexplained wealth order (including a *preliminary unexplained wealth order) in relation to a *suspect; and


(c) the application for the order states that an *authorised officer suspects that the whole or any part of the suspect's *wealth was derived from a *Territory offence. Proceedings for other orders

14H(5)  
Proceedings are covered by this subsection if:


(a) the proceedings are instituted while the disapplying law is in force; and


(b) the proceedings are for the making of an order that relates to:


(i) a *restraining order that has been made in proceedings covered by subsection (3); or

(ii) an *unexplained wealth order (including a *preliminary unexplained wealth order) that has been made in proceedings covered by subsection (4).

SECTION 14J   Effect of rollback by participating States on action taken under State reference information gathering provisions  

When this section applies

14J(1)  
This section applies if:


(a) a proclamation is made under the *referral Act or *adoption Act of a *participating State for the purposes of this section; and


(b) the proclamation declares that an *express amendment of this Act (other than this Subdivision) is not to apply to:


(i) an application covered by subsection (3); or

(ii) an order made as a result of an application covered by subsection (3); or

(iii) a notice covered by subsection (4); and


(c) the proclamation comes into force in the period of 6 months beginning on the day the amendment is enacted. Application of this Act to the application, order or notice

14J(2)  
This Act applies to the application, order or notice as if the amendment had not been enacted. Applications for production orders

14J(3)  
This subsection covers an application if:


(a) the application is made while the proclamation is in force; and


(b) the application is for the making of a *production order under clause 1 of Schedule 1; and


(c) the application is made by an *authorised State/Territory officer of the State. Notices to financial institutions

14J(4)  
This subsection covers a notice if:


(a) the notice is given while the proclamation is in force; and


(b) the notice is given to a *financial institution under clause 12 of Schedule 1; and


(c) the notice is given by an official of the State specified in subclause 12(3) of Schedule 1.

SECTION 14K   Effect of rollback by self-governing Territories on action taken under State reference information gathering provisions  

When this section applies

14K(1)  
This section applies if:


(a) a law (the disapplying law ) of a *self-governing Territory is made for the purposes of this section; and


(b) the disapplying law declares that an *express amendment of this Act (other than this Subdivision) is not to apply to:


(i) an application covered by subsection (3); or

(ii) an order made as a result of an application covered by subsection (3); or

(iii) a notice covered by subsection (4); and


(c) the disapplying law comes into force in the period of 6 months beginning on the day the amendment is enacted. Application of this Act to the application, order or notice

14K(2)  
This Act applies to the application, order or notice as if the amendment had not been enacted. Applications for production orders

14K(3)  
This subsection covers an application if:


(a) the application is made while the disapplying law is in force; and


(b) the application is for the making of a *production order under clause 1 of Schedule 1; and


(c) the application is made by an *authorised State/Territory officer of the Territory. Notices to financial institutions

14K(4)  
This subsection covers a notice if:


(a) the notice is given while the disapplying law is in force; and


(b) the notice is given to a *financial institution under clause 12 of Schedule 1; and


(c) the notice is given by an official of the Territory specified in subclause 12(3) of Schedule 1.

Subdivision C - Interaction of the national unexplained wealth provisions and orders with State and Territory laws and orders  

SECTION 14L   Concurrent operation of State and Territory laws with national unexplained wealth provisions  

Concurrent operation of laws

14L(1)  
The *national unexplained wealth provisions do not exclude or limit the operation of a law of a State or Territory (including a *special confiscation law) to the extent that the law is capable of operating concurrently with those provisions.

14L(2)  
A *corresponding law of a State or Territory is a special confiscation law while the State is a *participating State or the Territory is a *self-governing Territory.

14L(3)  
Without limiting subsection (1), the *national unexplained wealth provisions do not exclude or limit the concurrent operation of a *special confiscation law merely because:


(a) that law, or an order made under that law:


(i) prevents or restricts a person from disposing of, or dealing with, property (for example, by way of a restraining order made under that law); or

(ii) confiscates or forfeits property of a person (for example, by way of a forfeiture order made under that law); or

(iii) requires the person to pay an amount (for example, by way of an unexplained wealth order made under that law); or

(iv) deals with a matter prescribed by the regulations; and


(b) the national unexplained wealth provisions, or an order made under those provisions, also:


(i) prevent or restrict the person from disposing of, or dealing with, the property (for example, by way of a restraining order under section 20A); or

(ii) require the person to pay an amount (for example, by way of an *unexplained wealth order); or

(iii) deal with a matter prescribedby the regulations.

14L(4)  
Subsection (3) applies even if the *special confiscation law, or order made under that law, does any one or more of the following:


(a) prevents or restricts a person from disposing of, or dealing with, property in circumstances in which a *restraining order under section 20A could not be obtained to prevent or restrict such disposal or dealing;


(b) prevents or restricts, in particular circumstances, disposal of, or dealing with, more or less property than could be covered by a restraining order under section 20A in those circumstances;


(c) prevents or restricts disposal of, or dealing with, property that is or could be excluded from a restraining order under section 20A;


(d) confiscates or forfeits, in particular circumstances, property of a greater or lesser value than the *unexplained wealth amount of a person under an *unexplained wealth order that is or could be made in those circumstances;


(e) requires payment of an amount that is greater or lesser than the amount that is or could be payable under an unexplained wealth order;


(f) deals with a matter prescribed by the regulations. This section does not affect section 14A

14L(5)  
This section does not by implication affect section 14A (which deals with the concurrent operation of this Act, except the *national unexplained wealth provisions, and laws of States and Territories). Application of this section

14L(6)  
This section applies in relation to the operation of the *national unexplained wealth provisions and a law of a *participating State or *self-governing Territory in the period referred to in subsection (7), including in relation to:


(a) orders that are made under a *special confiscation law in that period in relation to proceedings that are instituted under the special confiscation law before or in that period; and


(b) orders that are made under a special confiscation law before that period and that are in force at any time in that period; and


(c) orders that are made under the national unexplained wealth provisions in that period in relation to proceedings that are instituted under the national unexplained wealth provisions before or in that period.

14L(7)  
For the purposes of subsection (6), the period is as follows:


(a) for a *participating State that has a *referral Act - the period starts at the commencement of this section and ends only if the State ceases to be a participating State, in which case, the period ends at the time the State so ceases;


(b) for a participating State that has an *adoption Act-the period starts at the commencement of the State's adoption Act and ends only if the State ceases to be a participating State, in which case, the period ends at the time the State so ceases;


(c) for a *self-governing Territory - the period starts at the commencement of this section and does not end.

Subdivision D - Other matters  

SECTION 14M   14M   Information gathering by participating States and self-governing Territories  


Schedule 1 has effect.

SECTION 14N   14N   Transitional, application and saving provisions relating to the national cooperative scheme on unexplained wealth  


Schedule 2 has effect.

SECTION 15   15   Concurrent operation of State/Territory laws  
(Repealed by No 126 of 2018)

CHAPTER 2 - THE CONFISCATION SCHEME  

PART 2-1A - FREEZING ORDERS  

SECTION 15A   15A   Simplified outline of this Part  


A freezing order can be made against an account with a financial institution if:

  • (a) there are grounds to suspect the account balance reflects proceeds of an instrument of certain offences; and
  • (b) a magistrate is satisfied that, unless the order is made, there is a risk that the balance of the account will be reduced so that a person will not be deprived of all or some of the proceeds or instrument.
  • Division 1 - Making freezing orders  

    SECTION 15B   Making freezing orders  

    15B(1)  
    A magistrate must order that a *financial institution not allow a withdrawal from an *account with the institution, except in the manner and circumstances specified in the order, if:


    (a) an *authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338 applies for the order in accordance with Division 2; and


    (b) there are reasonable grounds to suspect that the balance of the account:


    (i) is *proceeds of an *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or

    (ii) is wholly or partly an *instrument of a *serious offence; and


    (c) the magistrate is satisfied that, unless an order is made under this section, there is a risk that the balance of the account will be reduced so that a person will not be deprived of all or some of such proceeds or such an instrument.

    Note 1:

    Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain persons performing functions under this Act for the Australian Federal Police,the Australian Commission for Law Enforcement Integrity, the Australian Crime Commission and the Immigration and Border Protection Department.

    Note 2:

    The balance of the account may be proceeds of an offence even though the balance is only partly derived from the offence: see section 329.

    15B(2)  
    An order made under subsection (1) covers the balance of the *account from time to time. Order need not be based on commission of particular offence

    15B(3)  
    The reasonable grounds referred to in paragraph (1)(b), and the satisfaction referred to in paragraph (1)(c), need not be based on a finding as to the commission of a particular offence.

    Division 2 - How freezing orders are obtained  

    SECTION 15C   15C   Affidavit supporting application made in person  


    If an *authorised officer applies in person to a magistrate for a *freezing order relating to an *account with a *financial institution, the application must be supported by an affidavit of an authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338:


    (a) setting out sufficient information to identify the account (for example, the account number); and


    (b) identifying the financial institution; and


    (c) setting out the grounds to suspect that the balance of the account:


    (i) is *proceeds of an *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern; or

    (ii) is wholly or partly an *instrument of a *serious offence; and


    (d) setting out the grounds on which a person could be satisfied that, unless the order is made, there is a risk that the balance of the account will be reduced so that a person will not be deprived of all or some of such proceeds or of such an instrument.

    Note:

    Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain persons performing functions under this Act for the Australian Federal Police, the Australian Commission for Law Enforcement Integrity, the Australian Crime Commission and the Immigration and Border Protection Department.

    SECTION 15D   Applying for freezing orders by telephone or other electronic means  

    15D(1)  
    An *authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338 may apply to a magistrate for a *freezing order by telephone, fax or other electronic means:


    (a) in an urgent case; or


    (b) if the delay that would occur if an application were made in person would frustrate the effectiveness of the order.

    Note:

    Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain persons performing functions under this Act for the Australian Federal Police, the Australian Commission for Law Enforcement Integrity, the Australian Crime Commission and the Immigration and Border Protection Department.

    15D(2)  
    An application under subsection (1):


    (a) must include all information that would be required in an ordinary application for a *freezing order and supporting affidavit; and


    (b) if necessary, may be made before the affidavit is sworn.

    15D(3)  
    The magistrate may require:


    (a) communication by voice to the extent that it is practicable in the circumstances; and


    (b) any further information.

    SECTION 15E   Making order by telephone etc  

    15E(1)  
    The magistrate may complete and sign the same form of *freezing order that would be made under section 15B if satisfied that:


    (a) a freezing order should be issued urgently; or


    (b) the delay that would occur if an application were made in person would frustrate the effectiveness of the order.

    15E(2)  
    If the magistrate makes the *freezing order, he or she must inform the applicant, by telephone, fax or other electronic means, of the terms of the order and the day on which and the time at which it was signed.

    15E(3)  
    The applicant must then:


    (a) complete a form of *freezing order in terms substantially corresponding to those given by the magistrate; and


    (b) state on the form:


    (i) the name of the magistrate; and

    (ii) the day on which the order was signed; and

    (iii) the time at which the order was signed.

    15E(4)  
    The applicant must give the magistrate the form of *freezing order completed by the applicant by the end of:


    (a) the second *working day after the magistrate makes the order; or


    (b) the first working day after the magistrate makes the order, if it is served on the *financial institution concerned before the first working day after the magistrate makes the order.

    15E(5)  
    If, before the magistrate made the *freezing order, the applicant did not give the magistrate an affidavit supporting the application and meeting the description in section 15C, the applicant must do so by the time by which the applicant must give the magistrate the form of freezing order completed by the applicant.

    15E(6)  
    If the applicant does not comply with subsection (5), the *freezing order is taken never to have had effect.

    15E(7)  
    The magistrate must attach the form of *freezing order completed by the magistrate to the documents provided under subsection (4) and (if relevant) subsection (5).

    SECTION 15F   15F   Unsigned freezing orders in court proceedings  


    If:


    (a) it is material, in any proceedings, for a court to be satisfied that a *freezing order applied for under section 15D was duly made; and


    (b) the form of freezing order signed by the magistrate is not produced in evidence;

    the court must assume that the order was not duly made unless the contrary is proved.

    SECTION 15FA   Prohibition of publication of evidence - proceedings for freezing orders  

    15FA(1)  
    If an *authorised officer applies to a magistrate for a *freezing order in accordance with this Division, the magistrate may make an order under subsection (2).

    15FA(2)  
    If it appears to the magistrate to be necessary in order to prevent prejudice to the administration of justice, the magistrate may make an order prohibiting or restricting the publication of all or any of the following matters:


    (a) if the application is made under section 15C (in person) - the matters referred to in that section that are contained in an affidavit made in support of the application;


    (b) if the application is made under section 15D (by telephone or other electronic means) - the matters referred to in paragraph 15D(2)(a) that are contained, or that are to be contained, in an affidavit made in support of the application.

    15FA(3)  
    The magistrate may make an order under subsection (2) at any time after the application is made and before it is determined.

    15FA(4)  
    The power conferred by subsection (2) is in addition to, and is not taken to derogate from, any other power of the magistrate.

    SECTION 15G   15G   Offence for making false statements in applications  


    A person commits an offence if:


    (a) the person makes a statement (whether orally, in a document or in any other way); and


    (b) the statement:


    (i) is false or misleading; or

    (ii) omits any matter or thing without which the statement is misleading; and


    (c) the statement is made in, or in connection with, an application for a *freezing order.

    Penalty: Imprisonment for 2 years or 120 penalty units, or both.

    SECTION 15H   Offences relating to orders made under section 15E  

    Offence for stating incorrect names in telephone orders

    15H(1)  
    A person commits an offence if:


    (a) the person states a name of a magistrate in a document; and


    (b) the document purports to be a form of *freezing order under section 15E; and


    (c) the name is not the name of the magistrate who made the order.

    Penalty: Imprisonment for 2 years or 120 penalty units, or both.

    Offence for unauthorised form of order

    15H(2)  
    A person commits an offence if:


    (a) the person states a matter in a form of *freezing order under section 15E; and


    (b) the matter departs in a material particular from the order made by the magistrate.

    Penalty: Imprisonment for 2 years or 120 penalty units, or both.

    Offence for service of unauthorised form of order

    15H(3)  
    A person commits an offence if:


    (a) the person presents a document to a person; and


    (b) the document purports to be a form of *freezing order under section 15E; and


    (c) the document:


    (i) has not been approved by a magistrate under that section; or

    (ii) departs in a material particular from the terms given by the magistrate under that section.

    Penalty: Imprisonment for 2 years or 120 penalty units, or both.

    Offence for giving form of order different from that served

    15H(4)  
    A person commits an offence if:


    (a) the person gives a magistrate a form of *freezing order under section 15E relating to a *financial institution; and


    (b) the person does so after presenting to the financial institution a document purporting to be a form of the freezing order; and


    (c) the form given to the magistrate is not in the same form as the document presented to the financial institution.

    Penalty: Imprisonment for 2 years or 120 penalty units, or both.

    Division 3 - Giving effect to freezing orders  

    SECTION 15J   Service of freezing order etc on financial institution and account-holder  

    15J(1)  
    If a magistrate makes a *freezing order relating to an *account with a *financial institution, the applicant for the order must cause the things described in subsection (2) to be given to:


    (a) the financial institution; and


    (b) each person in whose name the account is held.

    15J(2)  
    The things are as follows:


    (a) a copy of the order (or of a form of the order under section 15E);


    (b) a written statement of the name and contact details of the *enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the applicant.

    Note:

    If the copy of the order is given to the financial institution after the end of the first working day after the order is made, the order does not come into force: see subsection 15N(1).

    SECTION 15K   15K   Freezing order does not prevent withdrawal to enable financial institution to meet its liabilities  


    A *freezing order relating to an *account with a *financial institution does not prevent the institution from allowing a withdrawal from the account to enable the institution to meet a liability imposed on the institution by or under a written law of the Commonwealth, a State or a Territory.

    SECTION 15L   15L   Offence for contravening freezing orders  


    A *financial institution commits an offence if:


    (a) the institution allows a withdrawal from an *account with the institution; and


    (b) there is a *freezing order relating to the account; and


    (c) allowing the withdrawal contravenes the order.

    Penalty: Imprisonment for 5 years or 300 penalty units or both.

    SECTION 15M   15M   Protection from suits etc for those complying with orders  


    No action, suit or proceeding lies against:


    (a) a *financial institution; or


    (b) an *officer or *agent of the institution acting in the course of that person's employment or agency;

    in relation to any action taken by the institution or person in complying with a *freezing order or in the mistaken belief that action was required under a freezing order.

    Note:

    This section does not affect any action that may lie against anyone else for the makingor operation of a freezing order.

    Division 4 - Duration of freezing orders  

    SECTION 15N   When a freezing order is in force  

    15N(1)  
    A *freezing order relating to an *account with a *financial institution comes into force when a copy of the order (or of a form of the order under section 15E) is given to the institution. However, the order does not come into force if the copy is given to the institution after the end of the first *working day after the order is made.

    15N(2)  
    The *freezing order remains in force until:


    (a) the end of the period specified in the order (as affected by section 15P if relevant) from when the copy of the order was given to the institution; or


    (b) if, before the end of that period, a court makes a decision on an application for a *restraining order to cover the *account - the time the court makes that decision.

    15N(3)  
    The *freezing order, as originally made, must not specify a period of more than 3 *working days.

    SECTION 15P   Order extending a freezing order   View history reference

    15P(1)  
    A magistrate may make an order extending the period specified in a *freezing order made in relation to an *account with a *financial institution if:


    (a) an *authorised officer described in paragraph (a), (aa), (b) or (c) of the definition of authorised officer in section 338 applies for the extension; and


    (b) the magistrate is satisfied that an application has been made to a court (but not decided by the court) for a *restraining order to cover the account (whether or not the restraining order is also to cover other property).

    Note:

    Paragraphs (a), (aa), (b) and (c) of the definition of authorised officer in section 338 cover certain persons performing functions under this Act for the Australian Federal Police, the Australian Commission for Law Enforcement Integrity, the Australian Crime Commission and the Immigration and Border Protection Department.

    15P(2)  
    The extension may be for:


    (a) a specified number of *working days; or


    (b) the period ending when the court decides the application for the *restraining order.

    15P(3)  
    The extension does not have effect unless a copy of the order for the extension is given to the *financial institution before the time the *freezing order would cease to be in force apart from the extension.

    15P(4)  
    The following provisions apply in relation to an order extending a *freezing order in a way corresponding to the way in which they apply in relation to a freezing order:


    (a) Division 2 (except paragraphs 15C(c) and (d));


    (b) section 15J (except the note to that section).

    15P(5)  
    Division 2 applies because of subsection (4) as if:


    (a) section 15C also required that an affidavit supporting an application:


    (i) identify the *freezing order; and

    (ii) state that an application has been made for a *restraining order to cover the *account; and


    (b) the reference in subsection 15E(1) to section 15B were a reference to subsection (1) of this section.

    Division 5 - Varying scope of freezing orders  

    SECTION 15Q   Magistrate may vary freezing order to allow withdrawal to meet reasonable expenses  

    15Q(1)  
    A magistrate may vary a *freezing order relating to an *account with a *financial institution so that the institution may allow a withdrawal from the account to meet one or more of the following relating to a person in whose name the account is held:


    (a) the reasonable living expenses of the person;


    (b) the person has given written notice of the application and the grounds for the application to the *enforcement agency mentioned in the paragraph of the definition of authorised officer in section 338 that describes the *authorised officer who applied for the freezing order; and


    (c) the reasonable business expenses of the person;


    (d) a specified debt incurred in good faith by the person.

    15Q(2)  
    The magistrate may vary the *freezing order only if:


    (a) a person in whose name the *account is held has applied for the variation; and


    (b) the person has notified the *DPP in writing of the application and the grounds for the application; and


    (c) the magistrate is satisfied that the expense or debt does not, or will not, relate to legal costs that the person has incurred, or will incur, in connection with:


    (i) proceedings under this Act; or

    (ii) proceedings for an offence against a law of the Commonwealth, a State or a Territory; and


    (d) the magistrate is satisfied that the person cannot meet the expense or debt out of property that is not covered by:


    (i) a freezing order; or

    (ii) a *restraining order; or

    (iii) an *interstate restraining order; or

    (iv) a *foreign restraining order that is registered under the *Mutual Assistance Act.

    15Q(3)  
    The variation does not take effect until written notice of it is given to the *financial institution.

    Division 6 - Revoking freezing orders  

    PART 2-1 - RESTRAINING ORDERS  

    SECTION 16   16   Simplified outline of this Part  


    Restraining orders can be made against property, in relation to certain offences, on grounds that relate to possible forfeiture or confiscation orders relating to those offences. (There is not always a requirement that a person has been convicted of such an offence.)

    Division 1 - Making restraining orders  

    SECTION 17   Restraining orders - people convicted of or charged with indictable offences  

    When a restraining order must be made

    17(1)  
    A court with *proceeds jurisdiction must order that:


    (a) property must not be disposed of or otherwise dealt with by any person; or


    (b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

    if:


    (c) a *proceeds of crime authority applies for the order; and


    (d) a person has been convicted of, or has been charged with, an *indictable offence, or it is proposed that he or she be charged with an indictable offence; and


    (e) any affidavit requirements in subsection (3) for the application have been met; and


    (f) (unless there are no such requirements) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion or suspicionsstated in the affidavit on reasonable grounds.

    Property that a restraining order may cover

    17(2)  
    The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:


    (a) all or specified property of the *suspect;


    (aa) all or specified *bankruptcy property of the suspect;


    (b) all property of the suspect other than specified property;


    (ba) all bankruptcy property of the suspect other than specified bankruptcy property;


    (c) specified property of another person (whether or not that other person's identity is known) that is subject to the *effective control of the suspect;


    (d) specified property of another person (whether or not that other person's identity is known) that is *proceeds of the offence or an *instrument of the offence. Affidavit requirements

    17(3)  
    The application for the order must be supported by an affidavit of an *authorised officer stating:


    (a) if the *suspect has not been convicted of an indictable offence - that the authorised officer suspects that the suspect committed the offence; and


    (b) if the application is to restrain property of a person other than the suspect but not to restrain *bankruptcy property of the suspect - that the authorised officer suspects that:


    (i) the property is subject to the *effective control of the suspect; or

    (ii) the property is *proceeds of the offence or an *instrument of the offence.

    The affidavit must include the grounds on which the *authorised officer holds those suspicions.

    Refusal to make a restraining order

    17(4)  
    Despite subsection (1), the court may refuse to make a *restraining order in relation to an *indictable offence that is not a *serious offence if the court is satisfied that it is not in the public interest to make the order.

    Note:

    A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.

    Risk of property being disposed of etc.

    17(5)  
    The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with. Later acquisitions of property

    17(6)  
    The court may specify that a *restraining order covers property that is acquired by the *suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.

    SECTION 18   Restraining orders - people suspected of committing serious offences  

    When a restraining order must be made

    18(1)  
    A court with *proceeds jurisdiction must order that:


    (a) propertymust not be disposed of or otherwise dealt with by any person; or


    (b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

    if:


    (c) a *proceeds of crime authority applies for the order; and


    (d) there are reasonable grounds to suspect that a person has committed a *serious offence; and


    (e) any affidavit requirements in subsection (3) for the application have been met; and


    (f) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.

    Note:

    A court can refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.

    Property that a restraining order may cover

    18(2)  
    The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:


    (a) all or specified property of the *suspect;


    (aa) all or specified *bankruptcy property of the suspect;


    (b) all property of the suspect other than specified property;


    (ba) all bankruptcy property of the suspect other than specified bankruptcy property;


    (c) specified property of another person (whether or not that other person's identity is known) that is subject to the *effective control of the suspect;


    (d) specified property of another person (whether or not that other person's identity is known) that is:


    (i) in any case - *proceeds of the offence; or

    (ii) if the offence to which the order relates is a *serious offence - an *instrument of the offence.
    Affidavit requirements

    18(3)  
    The application for the order must be supported by an affidavit of an *authorised officer stating:


    (a) that the authorised officer suspects that the *suspect committed the offence; and


    (b) if the application is to restrain property of a person other than the suspect but not to restrain *bankruptcy property of the suspect - that the authorised officer suspects that:


    (i) the property is subject to the *effective control of the suspect; or

    (ii) in any case - the property is *proceeds of the offence; or

    (iii) if the offence to which the order relates is a *serious offence - the property is an *instrument of the offence.

    The affidavit must include the grounds on which the *authorised officer holds those suspicions.

    Restraining order need not be based on commission of a particular offence

    18(4)  
    The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular *serious offence. Risk of property being disposed of etc.

    18(5)  
    The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with. Later acquisitions of property

    18(6)  
    The court may specify that a *restraining order covers property that is acquired by the *suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.

    SECTION 19   Restraining orders - property suspected of being proceeds of indictable offences etc.  

    When a restraining order must be made

    19(1)  
    A court with *proceeds jurisdiction must order that:


    (a) property must not be disposed of or otherwise dealt with by any person; or


    (b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

    if:


    (c) a *proceeds of crime authority applies for the order; and


    (d) there are reasonable grounds to suspect that the property is:


    (i) the *proceeds of a *terrorism offence or any other *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or

    (ii) an *instrument of a *serious offence; and


    (e) the application for the order is supported by an affidavit of an *authorised officer stating that the authorised officer suspects that:


    (i) in any case - the property is proceeds of the offence; or

    (ii) if the offence to which the order relates is a serious offence - the property is an *instrument of the offence;
    and including the grounds on which the authorised officer holds the suspicion; and


    (f) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.

    Property that a restraining order may cover

    19(2)  
    The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is:


    (a) in any case - *proceeds of the offence; or


    (b) if the offence to which the order relates is a *serious offence - an *instrument of the offence.

    Refusal to make a restraining order

    19(3)  
    Despite subsection (1), the court may refuse to make a *restraining order in relation to an *indictable offence that is not a *serious offence if the court is satisfied that it is not in the public interest to make the order.

    Note:

    A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.

    Restraining order need not be based on commission of a particular offence

    19(4)  


    The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular offence. Risk of property being disposed of etc.

    19(5)  
    The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.

    SECTION 20   Restraining orders - people suspected of deriving literary proceeds from indictable offences etc.  

    When a restraining order must be made

    20(1)  
    A court with *proceeds jurisdiction must order that:


    (a) property must not be disposed of or otherwise dealt with by any person; or


    (b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

    if:


    (c) a *proceeds of crime authority applies for the order; and


    (d) there are reasonable grounds to suspect that a person has committed an *indictable offence or a *foreign indictable offence, and that the person has derived *literary proceeds in relation to the offence; and


    (e) any affidavit requirements in subsection (3) for the application have been met; and


    (f) (unless there are no such requirements) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.

    Property that a restraining order may cover

    20(2)  
    The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:


    (a) all or specified property of the *suspect;


    (aa) all or specified *bankruptcy property of the suspect;


    (b) all property of the suspect other than specified property;


    (ba) all bankruptcy property of the suspect other than specified bankruptcy property;


    (c) specified property of another person (whether or not that other person's identity is known) that is subject to the *effective control of the suspect. Affidavit requirements

    20(3)  
    The application for the order must be supported by an affidavit of an *authorised officer stating:


    (a) if the *suspect has not been convicted of the offence - that the authorised officer suspects that the suspect committed the offence; and


    (c) that the authorised officer suspects that the suspect derived *literary proceeds in relation to the offence; and


    (d) if the application is to restrain property of a person other than the suspect but not to restrain *bankruptcy property of the suspect - that the authorised officer suspects that the property is subject to the *effective control of the suspect.

    The affidavit must include the grounds on which the *authorised officer holds those suspicions.

    Refusal to make a restraining order

    20(4)  
    Despite subsection (1), the court may refuse to make a *restraining order in relation to an *indictable offence that is not a *serious offence if the court is satisfied that it is not in the public interest to make the order.

    Note:

    A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.

    Restraining order need not be based on commission of a particular offence

    20(5)  
    The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular *indictable offence or *foreign indictable offence (as the case requires). Risk of property being disposed of etc.

    20(6)  
    The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with. Later acquisitions of property

    20(7)  
    The court may specify that a *restraining order covers property that is acquired by the *suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.

    SECTION 20A   Restraining orders - unexplained wealth  

    When a restraining order must be made

    20A(1)  


    A court with *proceeds jurisdiction must order that:


    (a) property must not be disposed of or otherwise dealt with by any person; or


    (b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

    if:


    (c) a *proceeds of crime authority applies for the order; and


    (d) there are reasonable grounds to suspect that a person's *total wealth exceeds the value of the person's *wealth that was *lawfully acquired; and


    (e) any affidavit requirements in subsection (3) for the application have been met; and


    (f) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds; and


    (g) there are reasonable grounds to suspect either or both of the following:


    (i) that the person has committed an offence against a law of the Commonwealth, a *foreign indictable offence, a *relevant offence of a *participating State, a *State offence that has a federal aspect or a *Territory offence;

    (ii) that the whole or any part of the person's wealth was derived or realised, directly or indirectly, from an offence against a law of the Commonwealth, a foreign indictable offence, a relevant offence of a participating State, a State offence that has a federal aspect or a Territory offence.
    Property that a restraining order may cover

    20A(2)  
    The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:


    (a) all or specified property of the *suspect;


    (b) all or specified *bankruptcy property of the suspect;


    (c) all property of the suspect other than specified property;


    (d) all bankruptcy property of the suspect other than specified bankruptcy property;


    (e) specified property of another person (whether or not that other person's identity is known) that is subject to the *effective control of the suspect. Affidavit requirements

    20A(3)  
    The application for the order must be supported by an affidavit of an *authorised officer stating:


    (a) that the authorised officer suspects that the *total wealth of the *suspect exceeds the value of the suspect's *wealth that was *lawfully acquired; and


    (b) if the application is to restrain property of a person other than the suspect but not to restrain *bankruptcy property of the *suspect - that the authorised officer suspects that the property is subject to the *effective control of the suspect; and


    (c) that the authorised officer suspects either or both of the following:


    (i) that the suspect has committed an offence against a law of the Commonwealth, a *foreign indictable offence, a *relevant offence of a *participating State, a *State offence that has a federal aspect or a *Territory offence;

    (ii) that the whole or any part of the suspect's wealth was derived or realised, directly or indirectly, from an offence against a law of the Commonwealth, a foreign indictable offence, a relevant offence of a participating State, a State offence that has a federal aspect or a Territory offence.

    The affidavit must include the grounds on which the authorised officer holds those suspicions.

    20A(3A)  
    (Repealed by No 6 of 2015)

    20A(3B)  
    (Repealed by No 6 of 2015)

    20A(3C)  
    (Repealed by No 6 of 2015)

    Refusal to make a restraining order

    20A(4)  


    Despite subsection (1), the court may refuse to make a *restraining order if the court is satisfied that:


    (a) there are not reasonable grounds to suspect that the person's *total wealth exceeds by $100,000 or more the value of the person's *wealth that was *lawfully acquired; or


    (b) (b) it is not in the public interest to make the order.

    Note:

    A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.

    20A(4A)  


    If the court refuses to make a *restraining order under this section, it may make any order as to costs it considers appropriate, including costs on an indemnity basis. Risk of property being disposed of etc

    20A(5)  


    The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with. Later acquisitions of property

    20A(6)  
    The court may specify that a *restraining order covers property that is acquired by the *suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.

    SECTION 21   Refusal to make an order for failure to give undertaking  

    21(1)  
    The court may refuse to make a *restraining order if the Commonwealth refuses or fails to give the court an appropriate undertaking with respect to the payment of damages or costs, or both, for the making and operation of the order.

    21(2)  


    The *responsible authority may give such an undertaking on behalf of the Commonwealth.

    SECTION 22   Restraining orders must only relate to one suspect  

    22(1)  
    A *restraining order must only relate to one *suspect.

    Note:

    A restraining order might not relate to any suspect if the person who is suspected of committing the offence is not known and the restraining order only restrains proceeds of the offence. The restraining order may also cover the property of one or more other persons who are not the suspect.

    22(2)  
    A *restraining order may relate to more than one offence in relation to that *suspect.

    SECTION 23   23   Conditions on restraining orders  


    A *restraining order may be made subject to conditions.

    SECTION 24   Allowance for expenses  

    24(1)  
    The court may allow any one or more of the following to be met out of property, or a specified part of property, covered by a *restraining order:


    (a) the reasonable living expenses of the person whose property is restrained;


    (b) the reasonable living expenses of any of the *dependants of that person;


    (c) the reasonable business expenses of that person;


    (d) a specified debt incurred in good faith by that person.

    24(2)  
    The court may only make an order under subsection (1) if:


    (a) the person whose property is restrained has applied for the order; and


    (b) the person has notified the *responsible authority in writing of the application and the grounds for the application; and


    (c) the person has disclosed all of his or her *interests in property, and his or her liabilities, in a statement on oath that has been filed in the court; and


    (ca) the court is satisfied that the expense or debt does not, or will not, relate to legal costs that the person has incurred, or will incur, in connection with:


    (i) proceedings under this Act; or

    (ii) proceedings for an offence against a law of the Commonwealth, a State or a Territory; and


    (d) the court is satisfied that the person cannot meet the expense or debt out of property that is not covered by:


    (i) a *restraining order; or

    (ii) an *interstate restraining order; or

    (iii) a *foreign restraining order that is registered under the *Mutual Assistance Act.

    24(3)  
    Property that is covered by:


    (a) a *restraining order; or


    (b) an *interstate restraining order; or


    (c) a *foreign restraining order that is registered under the *Mutual Assistance Act;

    is taken, for the purposes of paragraph (2)(d), not to be covered by the order if it would not be reasonably practicable for the *Official Trustee to take custody and control of the property.

    SECTION 24A   Excluding property from or revoking restraining orders in certain cases when expenses are not allowed  

    24A(1)  
    If:


    (a) because of the operation of subsection 24(3), property that is covered by a *restraining order is taken, for the purposes of paragraph 24(2)(d), not to be covered by the order; and


    (b) as a result, and for no other reason, the court refuses an application to make an order under subsection 24(1);

    the court may:


    (c) exclude the property from the restraining order; or


    (d) if the property is the only property covered by the restraining order - revoke the restraining order.

    24A(2)  
    The court must not exclude the property or revoke the order unless the court is satisfied that the property is needed to meet any one or more of the following:


    (a) the reasonable living expenses of the person whose property is restrained;


    (b) the reasonable living expenses of any of the *dependants of that person;


    (c) the reasonable business expenses of that person;


    (d) a specified debt incurred in good faith by that person.

    24A(3)  


    If the court excludes the property from the *restraining order, the *responsible authority must give written notice of the exclusion to:


    (a) the owner of the property (if the owner is known); and


    (b) any other person the authority reasonably believes may have an *interest in the property.

    However, the authority need not give notice to the applicant for the order under subsection 24(1).

    24A(4)  


    If the court revokes the *restraining order, the *responsible authority must give written notice of the revocation to:


    (a) the owner of any property covered by the restraining order (if the owner is known); and


    (b) any other person the authority reasonably believes may have an *interest in the property.

    However, the authority need not give notice to the applicant for the order under subsection 24(1).

    Division 2 - How restraining orders are obtained  

    SECTION 25   25   Proceeds of crime authority may apply for a restraining order  


    A *proceeds of crime authority may apply for a *restraining order.

    SECTION 26   Notice of application  

    26(1)  


    Subject to subsection (4), the *responsible authority must:


    (a) give written notice of an application for a *restraining order covering property to the owner of the property (if the owner is known); and


    (b) include with the notice a copy of the application and any affidavit supporting the application.

    26(2)  


    Subject to subsection (4), the *responsible authority must also:


    (a) give written notice of an application for a *restraining order covering property to any other person the authority reasonably believes may have an *interest in the property; and


    (b) include with the notice:


    (i) a copy of the application; and

    (ii) a further notice that the person may request that the authority give the person a copy of any affidavit supporting the application.

    The authority must comply with any such request as soon as practicable.

    26(3)  
    The court must not (unless subsection (4) applies) hear the application unless it is satisfied that the owner of the property to which the application relates has received reasonable notice of the application.

    26(4)  


    The court must consider the application without notice having been given if the *responsible authority requests the court to do so.

    26(5)  


    The court may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.

    26(6)  
    A person who claims an *interest in property may appear and adduce evidence at the hearing of the application.

    SECTION 27   27   Proceeds of crime authority may choose under which section it applies for a restraining order  
    To avoid doubt, the fact that a *proceeds of crime authority may apply for a *restraining order under a section of Division 1 against property in relation to an offence does not prevent a proceeds of crime authority from applying for a *restraining order under a different section of Division 1 against that property in relation to that offence.

    SECTION 28   28   Prejudice to investigations  


    A witness who is giving evidence relating to an application for a *restraining order is not required to answer a question or produce a document if the court is satisfied that the answer or document may prejudice the investigation of, or the prosecution of a person for, an offence.

    SECTION 28A   Prohibition of publication of evidence - proceedings for restraining orders  

    28A(1)  
    If a *proceeds of crime authority applies to a court for a *restraining order, the court may make an order under subsection (2).

    28A(2)  
    If it appears to the court to be necessary in order to prevent prejudice to the administration of justice, the court may make an order prohibiting or restricting the publication of all or any of the matters referred to in the following provisions (whichever is applicable) that are contained in an affidavit made in support of the application:


    (a) subsection 17(3);


    (b) subsection 18(3);


    (c) paragraph 19(1)(e);


    (d) subsection 20(3);


    (e) subsection 20A(3).

    28A(3)  
    The court may make an order under subsection (2) at any time after the application is made and before it is determined.

    28A(4)  
    The power conferred by subsection (2) is in addition to, and is not taken to derogate from, any other power of the court.

    Division 3 - Excluding property from restraining orders  

    Note:

    In addition to this Division, section 44 provides for property to be excluded from a restraining order on the giving of satisfactory security.

    SECTION 29   Excluding property from certain restraining orders  

    29(1)  


    The court to which an application for a *restraining order under section 17, 18 or 19 was made must, when the order is made or at a later time, exclude a specified *interest in property from the order if:


    (a) an application is made under section 30 or 31; and


    (b) the court is satisfied that the relevant reason under subsection (2) or (3) for excluding the interest from the order exists.

    Note:

    Section 32 may prevent the court from hearing the application until the responsible authority has had a reasonable opportunity to conduct an examination of the applicant.

    29(2)  


    The reasons for excluding a specified *interest in property from a *restraining order are:


    (a) for a restraining order under section 17 if the offence, or any of the offences, to which the order relates is a *serious offence - the interest is neither *proceeds nor an *instrument of *unlawful activity; or


    (b) for a restraining order under section 17 if paragraph (a) does not apply - the interest is neither proceeds nor an instrument of the offence, or any offence, to which the order relates; or


    (c) for a restraining order under section 18 - the interest is neither:


    (i) in any case - proceeds of unlawful activity; nor

    (ii) if an offence to which the order relates is a serious offence - an *instrument of any serious offence; or


    (d) for a restraining order under section 19 - the interest is neither:


    (i) in any case - proceeds of an *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern; nor

    (ii) if an offence to which the order relates is a serious offence - an *instrument of any serious offence.
    Note:

    One of the circumstances in which property ceases to be proceeds of an offence or unlawful activity involves acquisition of the property by an innocent third party for sufficient consideration: see paragraph 330(4)(a).

    29(3)  


    If the offence, or each offence, to which a *restraining order relates is a *serious offence that is an offence against section 15, 24, 29 or 31 of the Financial Transaction Reports Act 1988 or section 53, 59, 136, 137, 139, 140, 141, 142 or 143 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, a further reason for excluding a specified *interest in property from the order is that each of the following requirements is met:


    (a) there are no reasonable grounds to suspect that the interest is *proceeds of the offence, or any of the offences;


    (b) there is a *suspect in relation to the order, but he or she has not been convicted of, or charged with, the offence, or any of the offences;


    (c) the conduct in question was not for the purpose of, in preparation for, or in contemplation of, any other *indictable offence, any *State indictable offence or any *foreign indictable offence;


    (d) the interest could not have been covered by a restraining order if none of the offences had been serious offences.

    29(4)  


    However, the court must not exclude a specified *interest in property from a *restraining order under section 17 or 18 unless it is also satisfied that neither a *pecuniary penalty order nor a *literary proceeds order could be made against:


    (a) the person who has the interest; or


    (b) if the interest is not held by the *suspect but is under his or her *effective control - the suspect.

    SECTION 29A   29A   Excluding property from a restraining order made under section 20A  


    The court to which an application for a *restraining order under section 20A was made must, when the order is made or at a later time, exclude a specified *interest in property from the order if:


    (a) an application is made under section 30 or 31; and


    (b)the court is satisfied that the interest is held by a person other than the *suspect and is not subject to the *effective control of the suspect.

    Note:

    Section 32 may prevent the court from hearing the application until the responsible authority has had a reasonable opportunity to conduct examinations in relation to the restraining order.

    SECTION 30   Application to exclude property from a restraining order before restraining order has been made  

    30(1)  


    A person may apply for an order under section 29 or 29A if a *restraining order that could cover property in which the person claims an *interest has been applied for, but is yet to be made.

    30(2)  


    The person must give written notice to the *responsible authority of both the application and the grounds on which the exclusion is sought.

    30(3)  


    The *responsible authority may appear and adduce evidence at the hearing of the application.

    30(4)  


    The *responsible authority must give the person notice of any grounds on which it proposes to contest the application.

    SECTION 31   Application to exclude property from a restraining order after restraining order has been made  

    31(1)  


    A person may apply for an order under section 29 or 29A if a *restraining order that covers property in which the person claims an *interest has been made.

    31(1A)  


    An application under subsection (1):


    (a) must be made to the court that made the *restraining order; and


    (b) may be made at any time after the restraining order is made.

    31(2)  
    However, unless the court gives leave, the person cannot apply if he or she:


    (a) was notified of the application for the *restraining order, but did not appear at the hearing of that application; or


    (b) appeared at the hearing of that application.

    31(3)  
    The court may give the person leave to apply if the court is satisfied that:


    (a) if paragraph (2)(a) applies - the person had a good reason for not appearing; or


    (b) if paragraph (2)(b) applies - the person now has evidence relevant to the person's application that was not available to the person at the time of the hearing; or


    (c) in either case - there are other special grounds for granting the leave.

    31(4)  


    The person must give written notice to the *responsible authority of both the application and the grounds on which the exclusion is sought.

    31(5)  


    The *responsible authority may appear and adduce evidence at the hearing of the application.

    31(6)  


    The *responsible authority must give the person notice of any grounds on whichit proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.

    SECTION 32   32   Application not to be heard unless responsible authority has had reasonable opportunity to conduct an examination  


    The court must not hear an application to exclude specified property from the *restraining order if:


    (a) the restraining order is in force; and


    (b) the *responsible authority has not been given a reasonable opportunity to conduct *examinations in relation to the application.

    Division 4 - Giving effect to restraining orders  

    SECTION 33   Notice of a restraining order  

    33(1)  


    If a court makes a *restraining order covering property that a person owns, the *responsible authority must give written notice of the order to the person.
    Note:

    A person who was not notified of the application for a restraining order may apply to revoke the restraining order within 28 days of being notified of the order: see section 42.

    33(2)  


    The *responsible authority must include a copy of the application and any affidavit supporting the application with the notice (if those documents have not already been given to the person).

    33(3)  


    However, the court may order that:


    (a) all or part of the application or affidavit is not to be given to the person; or


    (b) the *responsible authority delay giving the notice (and the documents included with the notice) for a specified period;

    if the authority requests the court to do so and the court considers that this is appropriate in order to protect the integrity of any investigation or prosecution.

    33(4)  


    If the court orders the *responsible authority to delay giving the notice (and the documents included with the notice) for a specified period, the DPP must give the notice as soon as practicable after the end of that period.

    SECTION 34   Registering restraining orders  

    34(1)  
    A *registration authority that keeps a register of property of a particular kind may record in the register particulars of a *restraining order covering property of that kind.

    34(2)  


    The *registration authority can only do so on the application of the *responsible authority for the *restraining order.

    34(3)  
    Each person who subsequently deals with the property:


    (a) is taken not to be acting in good faith for the purposes of section 36; and


    (b) is taken to have notice of the *restraining order for the purposes of section 37.

    SECTION 35   Notifying registration authorities of exclusions from or variations to restraining orders  

    35(1)  


    If the *responsible authority for a *restraining order covering particular property has previously applied to a *registration authority under section 34 for the recording in a register of particulars of the order, the responsible authority must notify the registration authority if:


    (a) the property is no longer covered by the order because it is excluded from the order under section 29 or 29A or because the property covered by the order is varied under section 39; or


    (b) a condition to which a restraining order is subject is varied under section 39.

    35(2)  
    The notice must be given within a reasonable time after the order under section 39 is made.

    SECTION 36   Court may set aside a disposition contravening a restraining order  

    36(1)  


    The *responsible authority may apply to the court to set aside a disposition or dealing with property that contravenes a *restraining order if that disposition or dealing was:


    (a) not for *sufficient consideration; or


    (b) not in favour of a person who acted in good faith.

    36(2)  


    The *responsible authority must give, to each party to the disposition or dealing, written notice of both the application and the grounds on which it seeks the setting aside of the disposition or dealing.

    36(3)  
    The court may:


    (a) set aside the disposition or dealing from the day it occurred; or


    (b) set aside the disposition or dealing from the day on which the order is made and declare the rights of any persons who acquired *interests in the property on or after the day of the disposition or dealing and before the day on which the order is made.

    SECTION 37   Contravening restraining orders  

    37(1)  


    A person commits an offence if:


    (a) the person disposes of, or otherwise deals with, property; and


    (b) the person knows that, or is reckless as to the fact that, the property is covered by a *restraining order; and


    (c) the disposition or dealing contravenes the order.

    Penalty: Imprisonment for 5 years or 300 penalty units, or both.

    37(2)  


    A person commits an offence if:


    (a) the person disposes of, or otherwise deals with, property; and


    (b) the property is covered by a *restraining order; and


    (c) the disposition or dealing contravenes the order; and


    (d) either:


    (i) particulars of the order were recorded in a register under subsection 34(1); or

    (ii) the person was given notice of the order under section 33.

    Penalty: Imprisonment for 5 years or 300 penalty units, or both.

    37(3)  
    Strict liability applies to paragraphs (2)(b) and (c) and subparagraph (2)(d)(i).

    Division 5 - Further orders  

    SECTION 38   38   Court may order Official Trustee to take custody and control of property  


    The court may order the *Official Trustee to take custody and control of property, or specified property, covered by a *restraining order if the court is satisfied that this is required.
    Note:

    Part 4-1 sets out the Official Trustee's powers over the property.

    SECTION 39   Ancillary orders  

    39(1)  
    The court that made a *restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:


    (a) an order varying the property covered by the *restraining order;


    (b) an order varying a condition to which the restraining order is subject;


    (c) an order relating to an undertaking required under section 21;


    (ca) an order directing the *suspect in relation to the restraining order to give a sworn statement to a specified person, within a specified period, setting out all of his or her *interests in property, and his or her liabilities;


    (d) an order directing the owner or a previous owner of the property (including, if the owner or previous owner is a body corporate, a specified *director of the body corporate) to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property;


    (da) if the court is satisfied that there are reasonable grounds to suspect that a person (other than the owner or a previous owner) has information relevant to identifying, locating or quantifying the property - an order directing the person to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property;


    (e) if the *Official Trustee is ordered under section 38 to take custody and control of property:


    (i) an order regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the restraining order; or

    (ii) an order determining any question relating to the property, including a question relating to the liabilities of the owner or the exercise of powers or the performance of duties of the Official Trustee; or

    (iii) an order directing any person to do anything necessary or convenient to enable the Official Trustee to take custody and control of the property;


    (f) an order giving directions about the operation of the restraining order and any one or more of the following:


    (i) a *forfeiture order that covers the same property as the restraining order;

    (ii) a *pecuniary penalty order or a *literary proceeds order that relates to the same offence as the restraining order;


    (g) an order requiring a person whose property is covered by a restraining order, or who has *effective control of property covered by a restraining order, to do anything necessary or convenient to bring the property within the jurisdiction.

    Note 1:

    If there is a pecuniary penalty order that relates to the same offence as a restraining order, the court may also order the Official Trustee to pay an amount equal to the relevant pecuniary penalty out of property covered by the restraining order: see section 282.

    Note 2:

    If there is an unexplained wealth order that relates to a restraining order under section 20A, the court may also order the Official Trustee to pay an amount equal to the unexplained wealth amount out of property covered by the restraining order: see section 282A.

    39(2)  
    The court can only make an ancillary order on the application of:


    (a) the *responsible authority; or


    (b) the owner of the property covered by the order; or


    (c) if the *Official Trustee was ordered to take custody and control of the property - the Official Trustee; or


    (d) any other person who has the leave of the court.

    39(3)  
    A person who applies for an ancillary order must give written notice of the application to all other persons entitled to make such an application.

    39(3A)  


    Despite subsection (3), the court must consider an application for an ancillary order without notice having been given under that subsection if:


    (a) the *responsible authority requests the court to do so; and


    (b) the *restraining order to which the application relates was considered, in accordance with subsection 26(4), without notice having been given.

    39(4)  
    An ancillary order may be made:


    (a) if it is made by the court that made the *restraining order - when making the restraining order; or


    (b) in any case - at any time after the restraining order is made.

    39(4A)  


    The court may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.

    39(4B)  


    If the court makes the ancillary order after a request under subsection (3A), the *responsible authority must give written notice to any person whom the authority reasonably believes may be affected by the order.

    39(5)  
    An order that is ancillary to a *restraining order does not cease to have effect merely because the restraining order, or part of it, ceases to be in force under subsection 45(4) or (5).

    Note:

    A restraining order ceases to be in force under those subsections if a confiscation order covering the same property or relating to the same offence is satisfied.

    SECTION 39A   Privilege against self incrimination etc does not apply  

    39A(1)  
    A person is not excused from giving a sworn statement under paragraph 39(1)(ca), (d) or (da) on the grounds that to do so would tend to incriminate the person or expose the person to a penalty.

    39A(2)  
    However, in the case of a natural person, a sworn statement is not admissible in civil or criminal proceedings against the person who made the statement except:


    (a) in criminal proceedings for giving false or misleading information; or


    (b) in proceedings on an application under this Act; or


    (c) in proceedings ancillary to an application under this Act; or


    (d) in proceedings for enforcement of a *confiscation order.

    SECTION 39B   Application to revoke ancillary order  

    39B(1)  
    A person may apply to the court that made an ancillary order under section 39 to revoke the order if:


    (a) the person is affected by the order; and


    (b) the application for the ancillary order was heard without notice having been given under subsection 39(3) following a request under subsection 39(3A).

    39B(2)  
    The application must be made within 14 days after the person was notified of the ancillary order.

    39B(3)  
    The applicant must give written notice of the application, and the grounds on which the revocation is sought, to any person who was entitled to make the application for the ancillary order (see subsection 39(2)).

    39B(4)  
    The effect of the ancillary order is stayed until the court determines the application.

    39B(5)  
    The court may revoke the ancillary order on application under subsection (1) if it considers it appropriate to do so.

    39B(6)  
    The court may have regard to any matter it considers appropriate in determining the application.

    39B(7)  
    If:


    (a) the ancillary order directed a person to do a thing within a particular period; and


    (b) an application is made to revoke the order under this section;

    the court may, if it considers it appropriate to do so, vary the order to extend that period by a specified period.

    SECTION 40   40   Contravening ancillary orders relating to foreign property  


    A person commits an offence if:


    (a) the court makes an order under paragraph 39(1)(g); and


    (b) the person contravenes the order.

    Penalty: Imprisonment for 5 years or 300 penalty units, or both.

    Note:

    An order under paragraph 39(1)(g) requires a person whose property is covered by a restraining order, or who has effective control of property covered by a restraining order, to do anything necessary or convenient to bring the property within the jurisdiction.

    Division 6 - Duration of restraining orders  

    SECTION 41   41   When a restraining order is in force  


    A *restraining order is in force from the time at which it is made.

    SECTION 42   Application to revoke a restraining order  

    42(1)  
    A person who was not notified of the application for a *restraining order may apply to the court to revoke the order.

    42(1A)  
    The application must be made:


    (a) within 28 days after the person is notified of the order; or


    (b) if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation - within such longer period, not exceeding 3 months, as the court allows.

    42(2)  


    The applicant must give written notice to the *responsible authority and the *Official Trustee of both the application and the grounds on which the revocation is sought.

    42(3)  
    However, the *restraining order remains in force until the court revokes the order.

    42(4)  


    The *responsible authority may adduce additional material to the court relating to the application to revoke the *restraining order.

    42(5)  


    The court may revoke the *restraining order if satisfied that:


    (a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or


    (b) it is otherwise in the interests of justice to do so.

    SECTION 43   43   Notice of revocation of a restraining order  


    If a *restraining order is revoked under section 42, the *responsible authority must give written notice of the revocation to:


    (a) the owner of any property covered by the restraining order (if the owner is known); and


    (b) any other person the authority reasonably believes may have an *interest in the property.

    However, the authority need not give notice to the applicant for the revocation.

    SECTION 44   Giving security etc. to revoke etc. a restraining order  

    44(1)  
    A court may:


    (a) revoke a *restraining order that covers a *suspect's property; or


    (b) exclude specified property from such a restraining order;

    if:


    (c) the suspect applies to the court to revoke the order or exclude the property; and


    (d) the suspect gives written notice of the application to the *responsible authority; and


    (e) the suspect gives security that is satisfactory to the court to meet any liability that may be imposed on the suspect under this Act.

    44(2)  
    A court may:


    (a) revoke a *restraining order that covers the property of a person who is not a *suspect; or


    (b) exclude specified property from such a restraining order;

    if:


    (c) the person applies to the court to revoke the order or exclude the property; and


    (d) the person gives written notice of the application to the *responsible authority; and


    (e) the person gives an undertaking concerning the person's property that is satisfactory to the court.

    SECTION 45   Cessation of restraining orders  

    Effect on certain restraining orders of withdrawal of charges, acquittals etc.

    45(1)  
    A *restraining order that relates to one or more offences ceases to be in force 28 days after one of the following occurs:


    (a) the charge, or all of the charges, that relate to the restraining order are withdrawn;


    (b) the *suspect is acquitted of the offence, or all of the offences, with which he or she was charged;


    (c) the suspect's conviction for the offence, or all of the offences, of which he or she was convicted are *quashed;

    unless:


    (d) there is a *confiscation order that relates to the offence; or


    (e) there is an application for such a confiscation order before the court; or


    (f) there is an application under:


    (i) Division 6 of Part 2-2; or

    (ii) Division 4 of Part 2-3; or

    (iii) Division 5 of Part 2-4 or 2-5;
    for confirmation of a forfeiture, or a confiscation order, that relates to the offence; or


    (g) the suspect is charged with a *related offence; or


    (h) a new trial is ordered in relation to the offence.

    Restraining orders if there is no conviction etc.

    45(2)  
    A *restraining order ceases to be in force if, within 28 days after the order was made:


    (a) the *suspect has not been convicted of, or charged with, the offence, or at least one offence, to which the restraining order relates; and


    (b) there is no *confiscation order or application for a confiscation order that relates to the offence. Restraining orders and forfeiture orders etc.

    45(3)  
    A *restraining order ceases to be in force in respect of property covered by the restraining order if:


    (a) either:


    (i) the court refuses an application for a *forfeiture order that would have covered the property; or

    (ii) the court excludes the property from a forfeiture order; or

    (iii) a forfeiture order that covers the property is discharged or ceases to have effect; or

    (iv) the court excludes the property under section 94 from forfeiture under Part 2-3; and


    (b) in the case of a refusal of an application for a *forfeiture order:


    (i) the time for an appeal against the refusal has expired without an appeal being lodged; or

    (ii) an appeal against the refusal has lapsed; or

    (iii) an appeal against the refusal has been dismissed and finally disposed of; and


    (c) no application for another *confiscation order relating to:


    (i) an offence to which the restraining order relates; or

    (ii) a *related offence;
    is yet to be determined; and


    (d) no other confiscation order relating to such an offence is in force.

    45(4)  
    A *restraining order ceases to be in force to the extent that property that it covers vests absolutely in the Commonwealth under Division 4 of Part 2-2 or Division 1 of Part 2-3. Restraining orders, pecuniary penalty orders and literary proceeds orders

    45(5)  
    A *restraining order that relates to one or more offences ceases to be in force in respect of property covered by the restraining order if:


    (a) a *pecuniary penalty order or a *literary proceeds order relates to that offence or those offences; and


    (b) one or more of the following occurs:


    (i) the pecuniary penalty order or the literary proceeds order is satisfied;

    (ii) the property is sold or disposed of to satisfy the pecuniary penalty order or literary proceeds order;

    (iii) the pecuniary penalty order or the literary proceeds order is discharged or ceases to have effect.
    Restraining orders and instruments owned by third parties

    45(6)  
    Despite subsection (1), if:


    (a) a *restraining order covers property of a person who is not a *suspect; and


    (b) the property is an *instrument of an offence to which the order relates; and


    (c) the property is not *proceeds of such an offence; and


    (ca) the property is not an instrument of a *serious offence to which the order relates; and


    (d) the property is not subject to the *effective control of another person who is a suspect in relation to the order;

    the restraining order ceases to be in force in respect of that property if the suspect has not been charged with the offence or a *related offence within 28 days after the restraining order is made.

    Restraining orders and charges relating to unexplained wealth orders

    45(6A)  


    If:


    (a) a *restraining order referred to in paragraph 179SA(1)(b) would otherwise cease to be in force under this section at a particular time; but


    (b) a charge on the property against which the restraining order was made is created by subsection 179SA(1) before that time;

    then despite anything in subsection (1), (2), (3) or (6) of this section, the restraining order does not cease to be in force until the charge ceases to have effect in respect of the property in accordance with subsection 179SA(2).

    Section does not apply to unexplained wealth restraining orders

    45(7)  


    To avoid doubt, this section does not apply to a *restraining order made under section 20A.

    SECTION 45A   Cessation of restraining orders relating to unexplained wealth  

    Restraining orders made before application for unexplained wealth order

    45A(1)  


    A *restraining order made under section 20A ceases to be in force if:


    (a) no application for an *unexplained wealth order had been made in relation to the *suspect to whom the restraining order relates before the restraining order was made; and


    (b) no such application has been made in relation to the suspect within 28 days after the restraining order was made.

    45A(2)  
    A *restraining order made under section 20A ceases to be in force if:


    (a) an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and


    (b) the application is made within 28 days after the making of the restraining order; and


    (c) the court refuses to make either:


    (i) a *preliminary unexplained wealth order in connection with the application for the unexplained wealth order; or

    (ii) the unexplained wealth order itself; and


    (d) one of the following applies:


    (i) the time for an appeal against the refusal has expired without an appeal being lodged;

    (ii) an appeal against the refusal has lapsed;

    (iii) an appeal against the refusal has been dismissed and finally disposed of.

    45A(3)  
    A *restraining order made under section 20A ceases to be in force if:


    (a) an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and


    (b) the application is made within 28 days after the making of the restraining order; and


    (c) the court makes the unexplained wealth order; and


    (d) either:


    (i) the unexplained wealth order is complied with; or

    (ii) an appeal against the unexplained wealth order has been upheld and finally disposed of.
    Restraining orders made after application for unexplained wealth order

    45A(3A)  


    A *restraining order made under section 20A ceases to be in force if:


    (a) the restraining order was made at the same time as or after an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and


    (b) the court refuses to make either:


    (i) a *preliminary unexplained wealth order in connection with the application for the unexplained wealth order; or

    (ii) the unexplained wealth order itself; and


    (c) one of the following applies:


    (i) the time for an appeal against the refusal has expired without an appeal being lodged;

    (ii) an appeal against the refusal has lapsed;

    (iii) an appeal against the refusal has been dismissed and finally disposed of.

    45A(3B)  


    A *restraining order made under section 20A ceases to be in force if:


    (a) the restraining order was made at the same time as or after an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and


    (b) the court makes the unexplained wealth order (whether before or after the restraining order was made or applied for); and


    (c) either:


    (i) the unexplained wealth order is complied with; or

    (ii) an appeal against the unexplained wealth order has been upheld and finally disposed of.
    Court may make costs order if restraining order ceases

    45A(4)  


    If a *restraining order ceases under subsection (1), (2) or (3A), the court may, on application by a person with an *interest in the property covered by the restraining order, make any order as to costs it considers appropriate, including costs on an indemnity basis.

    PART 2-2 - FORFEITURE ORDERS  

    SECTION 46   46   Simplified outline of this Part  


    Forfeiture orders can be made, forfeiting property to the Commonwealth, if certain offences have been committed. (It is not always a requirement that a person has been convicted of such an offence.)

    Orders are made on the application of a proceeds of crime authority (the Commissioner of the Australian Federal Police or the DPP). Other orders can be made to reduce the effect of forfeiture orders on grounds such as hardship to the person's dependants.

    Note:

    If a person is convicted of a serious offence, forfeiture can be automatic under Part 2-3. There is no need for a forfeiture order.

    Division 1 - Making forfeiture orders  

    SECTION 47   Forfeiture orders - conduct constituting serious offences  

    47(1)  
    A court with *proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:


    (a) the *responsible authority for a *restraining order under section 18 that covers the property applies for an order under this subsection; and


    (b) the restraining order has been in force for at least 6 months; and


    (c) the court is satisfied that a person whose conduct or suspected conduct formed the basis of the restraining order engaged in conduct constituting one or more *serious offences.

    Note:

    The order can be made before the end of the period of 6 months referred to in paragraph (1)(b) if it is made as a consent order: see section 316.

    47(2)  
    A finding of the court for the purposes of paragraph (1)(c) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some *serious offence or other was committed.

    47(3)  
    The raising of a doubt as to whether a person engaged in conduct constituting a *serious offence is not of itself sufficient to avoid a finding by the court under paragraph (1)(c). Refusal to make a forfeiture order

    47(4)  


    Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:


    (a) is an *instrument of a *serious offence other than a *terrorism offence; and


    (b) is not *proceeds of an offence;

    if the court is satisfied that it is not in the public interest to make the order.

    SECTION 48   Forfeiture orders - convictions for indictable offences  

    48(1)  
    A court with *proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:


    (a) a *proceeds of crime authority applies for the order; and


    (b) a person has been convicted of one or more *indictable offences; and


    (c) the court is satisfied that the property to be specified in the order is *proceeds of one or more of the offences.

    48(2)  
    A court with *proceeds jurisdiction may make an order that property specified in the order is forfeited to the Commonwealth if:


    (a) a *proceeds of crime authority applies for the order; and


    (b) a person has been convicted of one or more *indictable offences; and


    (c) subsection (1) does not apply; and


    (d) the court is satisfied that the property to be specified in the order is an *instrumentof one or more of the offences.

    48(3)  
    In considering whether it is appropriate to make an order under subsection (2) in respect of particular property, the court may have regard to:


    (a) any hardship that may reasonably be expected to be caused to any person by the operation of the order; and


    (b) the use that is ordinarily made, or was intended to be made, of the property to be specified in the order; and


    (c) the gravity of the offence or offences concerned.

    Note:

    Section 52 limits the court's power to make a forfeiture order if one or more of the person's convictions were due to the person absconding.

    SECTION 49   Forfeiture orders - property suspected of being proceeds of indictable offences etc.  

    49(1)  
    A court with *proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:


    (a) the *responsible authority for a *restraining order under section 19 that covers the property applies for an order under this subsection; and


    (b) the restraining order has been in force for at least 6 months; and


    (c) the court is satisfied that one or more of the following applies:


    (i) the property is *proceeds of one or more *indictable offences;

    (ii) the property is proceeds of one or more *foreign indictable offences;

    (iii) the property is proceeds of one or more *indictable offences of Commonwealth concern;

    (iv) the property is an instrument of one or more *serious offences; and


    (d) (Repealed by No 3 of 2010)


    (e) the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an *interest in the property.

    49(2)  
    A finding of the court for the purposes of paragraph (1)(c):


    (a) need not be based on a finding that a particular person committed any offence; and


    (b) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in paragraph (1)(c) was committed.

    49(3)  
    Paragraph (1)(c) does not apply if the court is satisfied that:


    (a) no application has been made under Division 3 of Part 2-1 for the property to be excluded from the *restraining order; or


    (b) any such application that has been made has been withdrawn. Refusal to make a forfeiture order

    49(4)  


    Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:


    (a) is an *instrument of a *serious offence other than a *terrorism offence; and


    (b) is not *proceeds of an offence;

    if the court is satisfied that it is not in the public interest to make the order.

    SECTION 50   50   Existence of other confiscation orders  


    The court's power to make a *forfeiture order in relation to an offence is not affected by the existence of another *confiscation order in relation to that offence.
    Note:

    There are restrictions on a proceeds of crime authority applying for forfeiture orders if previous applications for forfeiture etc. have already been made: see section 60.

    SECTION 51   51   Acquittals do not affect forfeiture orders under section 47 or 49  


    The fact that a person has been acquitted of an offence with which the person has been charged does not affect the court's power to make a *forfeiture order under section 47 or 49 in relation to the offence.

    SECTION 52   52   Making of forfeiture order if person has absconded  


    If, because of paragraph 331(1)(d), a person is taken to have been convicted of an *indictable offence, a court must not make a *forfeiture order relating to the person's conviction unless:


    (a) the court is satisfied, on the balance of probabilities, that the person has *absconded; and


    (b) either:


    (i) the person has been committed for trial for the offence; or

    (ii) the court is satisfied, having regard to all the evidence before the court, that a reasonable jury, properly instructed, could lawfully find the person guilty of the offence.

    SECTION 53   53   Jurisdictional issues concerning forfeiture orders  
    (Repealed by No 3 of 2021)

    Division 2 - Other relevant matters when a court is considering whether to make forfeiture orders  

    SECTION 54   54   Presumption in certain cases that property is an instrument of an offence  


    If:


    (a) a *proceeds of crime authority applies for:


    (i) a *forfeiture order under section 47 or 49 against particular property in relation to a person's commission of a *serious offence; or

    (ii) a forfeiture order under section 48 against particular property in relation to a person's conviction of an *indictable offence; and


    (b) evidence is given, at the hearing of the application, that the property was in the person's possession at the time of, or immediately after, the person committed the offence;

    then:


    (c) if no evidence is given that tends to show that the property was not used in, or in connection with, the commission of the offence - the court must presume that the property was used in, or in connection with, the commission of the offence; or


    (d)in any other case - the court must not make a forfeiture order against the property unless it is satisfied that the property was used or intended to be used in, or in connection with, the commission of the offence.

    SECTION 55   Forfeiture orders can extend to other interests in property  

    55(1)  
    In specifying an *interest in property in a *forfeiture order, the court may also specify other interests in the property (regardless of whose they are) if:


    (a) the amount received from disposing of the combined interests would be likely to be greater than the amount received from disposing of each of the interests separately; or


    (b) disposing of the interests separately would be impracticable or significantly more difficult than disposing of the combined interests.

    55(2)  
    If the court so specifies other *interests in the *forfeiture order, the court may make such ancillary orders as it thinks fit for the protection of a person having one or more of those other interests. These ancillary orders may include:


    (a) an order directing the Commonwealth to pay the person a specified amount as the value of the person's interest in the property; or


    (b) an order directing that specified other interests in the property be transferred to the person.

    55(3)  
    In deciding whether to make an ancillary order, the court must have regard to:


    (a) the nature, extent and value of the person's *interest in the property concerned; and


    (b) if the court is aware that any other person claims an interest in the property - the nature, extent and value of the interest claimed; and


    (c) any other matter that the court considers relevant.

    55(4)  


    For the purposes of an order described in paragraph (2)(a), an amount may be specified wholly or partly by reference to a specified proportion of the difference between:


    (a) the amount received from disposing of the combined interests specified in the *forfeiture order; and


    (b) the sum of any payments of the kind referred to in paragraph 70(1)(b) in connection with the forfeiture order.

    SECTION 56   56   Forfeiture orders must specify the value of forfeited property  


    The court must specify, in any *forfeiture order it makes, the amount it considers to be the value, at the time the order is made, of the property (other than money) specified in the order.

    SECTION 57   Court may make orders relating to buying back forfeited property  

    57(1)  
    If:

    (a)  a court makes a *forfeiture order against property; and

    (b)  a person who claims to have had an *interest in the property before the forfeiture order was made has made an application under section 57A for an order under this section; and

    (c)  the court is satisfied that the person had the interest immediately before the forfeiture order was made; and

    (d)  the court is satisfied that the person is not a *suspect in relation to the forfeiture order; and

    (e)  in a case where the property was covered by a *restraining order when the forfeiture order was made - the court is satisfied that the person is not a suspect in relation to the restraining order; and

    (f)  in a case where the forfeiture order was made under section 47 or 48 - the court is satisfied that, when the conduct that is the subject of the forfeiture order occurred, the person had no knowledge of the conduct; and

    (g)  in a case where the property was *proceeds of an offence or an *instrument of an offence - the court is satisfied that, when the property became proceeds of an offence or an instrument of an offence, the person had no knowledge of the conduct constituting the offence; and

    (h)  the court is satisfied that, if the interest were to be transferred to the person under section 89:


    (i) the amount paid to the Commonwealth under paragraph 89(1)(c) would not be property that is covered by subsection (6); and

    (ii) if the whole or a part of the amount paid to the Commonwealth under paragraph 89(1)(c) would be borrowed by the person under a loan - the person's financial circumstances are such that the person will be able to repay the loan, meet the person's eligible living expenses and meet any eligible debts of the person, using property that is not covered by subsection (6); and

    (i)  the court is satisfied that:


    (i) it would not be contrary to the public interest for the interest to be transferred to the person; and

    (ii) there is no other reason why the interest should not be transferred to the person;

    the court may make an order:

    (j)  declaring the nature, extent and value (as at the time when the order is made under this subsection) of the interest; and

    (k)  declaring that the interest may be excluded, under section 89, from the operation of the forfeiture order.

    Note:

    Money can be property.

    57(2)  
    For the purposes of this section, it is immaterial whether the loan mentioned in subparagraph (1)(h)(ii) was made under an arrangement entered into before or after the application mentioned in paragraph (1)(b) was made.

    57(3)  
    For the purposes of this section, loan includes anything that may reasonably be regarded as equivalent to a loan, and borrow has a corresponding meaning.

    57(4)  
    For the purposes of this section, each of the following are eligible living expenses of the person:

    (a)  the person's reasonable living expenses;

    (b)  the reasonable living expenses of any of the *dependants of the person;

    (c)  the reasonable business expenses of the person.

    57(5)  
    For the purposes of this section, an eligible debt of the person is a debt incurred in good faith by the person.

    57(6)  
    This subsection covers any of the following property:

    (a)  property that is wholly or partly derived or realised bythe person, directly or indirectly, from *unlawful activity;

    (b)  property that is used in, or in connection with, the commission of unlawful activity;

    (c)  property that is intended to be used in, or in connection with, the commission of unlawful activity.

    SECTION 57A   Applying for an order under section 57  

    Before a forfeiture order has been made

    57A(1)  
    A person may apply to a court for an order under section 57 in relation to an *interest in property if an application for a *forfeiture order that could specify property in which the person claims that interest has been made to the court, but the forfeiture order is yet to be made. After a forfeiture order has been made

    57A(2)  
    A person who claims to have had an *interest in property specified in a *forfeiture order immediately before the forfeiture order was made may, at any time after the forfeiture order is made, apply to the court that made the forfeiture order for an order under section 57 in relation to the interest.

    57A(3)  
    However, unless the court gives leave, the person cannot apply under subsection (2) if the person:

    (a)  was notified of the application for the *forfeiture order, but did not make an application under subsection (1) before the forfeiture order was made; or

    (b)  appeared at the hearing of the application for the forfeiture order.

    57A(4)  
    The court may give the person leave to apply under subsection (2) if the court is satisfied that:

    (a)  if the person was notified of the application for the *forfeiture order, but did not make an application under subsection (1) before the forfeiture order was made - the person had a good reason for not making an application under subsection (1) before the forfeiture order was made; or

    (b)  in any case:


    (i) the person now has evidence relevant to the making of the section 57 order that was not available to the person at the time the forfeiture order was made; or

    (ii) there are other special grounds for granting the leave.

    57A(5)  
    However, the court must not hear an application under subsection (2) if:

    (a)  the *Official Trustee has taken any action in relation to the property under section 70; and

    (b)  it would not be practicable for the court to make an order in relation to the interest under section 57. Other matters

    57A(6)  
    An applicant under subsection (1) or (2) must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.

    57A(7)  
    The *responsible authority may appear and adduce evidence at the hearing of an application under subsection (1) or (2).

    57A(8)  
    To avoid doubt, the *responsible authority may represent the Commonwealth in proceedings relating to an application under subsection (1) or (2).

    57A(9)  
    The *responsible authority must give an applicant under subsection (1) or (2) notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.

    57A(10)  
    An application under subsection (1) or (2) must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.

    SECTION 58   The court may also make supporting directions  

    58(1)  
    If a court makes a *forfeiture order, the court has power to give all directions that are necessary or convenient for giving effect to the order.

    58(2)  
    This includes, for a *forfeiture order specifying *registrable property, a direction to an officer of the court to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.

    Division 3 - How forfeiture orders are obtained  

    SECTION 59   Proceeds of crime authority may apply for a forfeiture order  

    59(1)  


    A *proceeds of crime authority may apply for a *forfeiture order.

    59(2)  
    If the application relates to a person's conviction of an *indictable offence, the application must be made before the end of the period of 6 months after the *conviction day.

    SECTION 60   Additional application for a forfeiture order  

    60(1)  


    A *proceeds of crime authority cannot, unless the court gives leave, apply for a *forfeiture order under a section of Division 1 in relation to an offence if:


    (a) an application has previously been made:


    (i) under this Division for an order under the same section of Division 1; or

    (ii) under another law of the Commonwealth (other than Division 1); or

    (iii) under a law of a *non-governing Territory;
    for the forfeiture or condemnation of the property in relation to the offence; and


    (b) the application has been finally determined on the merits.

    60(2)  
    The court must not give leave unless it is satisfied that:


    (a) the property to which the new application relates was identified only after the first application was determined; or


    (b) necessary evidence became available only after the first application was determined; or


    (c) it is in the interests of justice to grant the leave.

    60(3)  
    To avoid doubt:


    (a) a *proceeds of crime authority may apply for a *forfeiture order under a section of Division 1 against property in relation to an offence even though an application has previously been made under a different section of Division 1 for forfeiture of that property in relation to that offence; and


    (b) a proceeds of crime authority may apply for a forfeiture order against property in relation to an offence even though an application has previously been made for a *pecuniary penalty order or a *literary proceeds order in relation to that offence.

    SECTION 61   Notice of application  

    61(1)  


    The *responsible authority must give written notice of an application for a *forfeiture order to:


    (a) if the order is sought relating to a person's conviction of an offence - the person; and


    (b) any person who claims an *interest in property covered by the application; and


    (c) any person whom the authority reasonably believes may have an interest in that property.

    61(2)  


    The court hearing the application may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.

    SECTION 62   Amending an application  

    62(1)  
    The court hearing an application for a *forfeiture order may amend the application:


    (a) on application by the *responsible authority; or


    (b) with the consent of the authority.

    62(2)  
    However, the court must not amend the application to include additional property in the application unless:


    (a) the court is satisfied that:


    (i) the property was not reasonably capable of identification when the application was originally made; or

    (ii) necessary evidence became available only after the application was originally made; or


    (b) the *forfeiture order applied for is an order under section 47 or 49 and the court is satisfied that:


    (i) including the additional property in the application for the order might have prejudiced the investigation of, or the prosecution of a person for, an offence; or

    (ii) it is for any other reason appropriate to grant the application to amend.

    62(3)  


    On applying for an amendment to include additional property in the application, the *responsible authority must give written notice of the application to amend to any person whom the authority reasonably believes may have an *interest in that additional property.

    62(4)  
    If the *forfeiture order applied for is an order under section 48, any person who claims an *interest in that additional property may appear and adduce evidence at the hearing of the application to amend.

    SECTION 63   63   Court may dispense with notice requirements if person has absconded  


    The court to which an application for a *forfeiture order is made in relation to an offence may, on application by the *responsible authority, dispense with the requirements to give notice to a person under subsections 61(1) and 62(3) if the court is satisfied that the person has *absconded in connection with the offence.

    SECTION 64   Procedure on application  

    64(1)  
    Any person who claims an *interest in property covered by an application for a *forfeiture order may appear and adduce evidence at the hearing of the application.

    64(2)  


    The court may, in determining the application, have regard to:


    (a) the transcript of any proceeding against the person for an offence that constitutes *unlawful activity; and


    (b) the evidence given in any such proceeding.

    64(3)  
    The court may still make a *forfeiture order if a person entitled to be given notice of the relevant application fails to appear at the hearing of the application.

    SECTION 65   65   Applications to courts before which persons are convicted  


    If an application for a *forfeiture order is made to a court before which a person was convicted of an *indictable 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 in which it was constituted when the person was convicted of the indictable offence.

    Division 4 - Effect of forfeiture orders  

    SECTION 66   66   What property is forfeited and when - general rule  


    Property specified in a *forfeiture order vests absolutely in the Commonwealth at the time the order is made.

    SECTION 67   First exception - registrable property  

    67(1)  
    Despite section 66, if property specified in the *forfeiture order is *registrable property:


    (a) that property vests in equity in the Commonwealth but does not vest in the Commonwealth at law until the applicable registration requirements have been complied with; and


    (b) the *responsible authority has power, on behalf of the Commonwealth, to do anything necessary or convenient to give notice of, or otherwise protect, the Commonwealth's equitable interest in that property; and


    (c) the Commonwealth is entitled to be registered as the owner of that property; and


    (d) the *Official Trustee has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to obtain the registration of the Commonwealth as the owner.

    67(2)  


    Any action by the *responsible authority under paragraph (1)(b) is not a dealing for the purposes of subsection 69(1).

    67(3)  
    The *Official Trustee's powers under paragraph (1)(d) include executing any instrument required to be executed by a person transferring an *interest in property of that kind.

    SECTION 68   Second exception - if a joint owner dies before the order was made  

    68(1)  
    Despite section 66, if a person:


    (a) was, immediately before his or her death, the joint owner of property specified in the *forfeiture order; but


    (b) died before the order was made, but:


    (i) after the *responsible authority applied for the order; or

    (ii) while a *restraining order covering the property was in force;

    that property is taken to have vested in the Commonwealth immediately before the person's death.

    68(2)  
    Any such *restraining order is also taken to have continued to apply to the property as if the person had not died.

    SECTION 68A   Third exception - property located outside Australia  

    68A(1)  
    Despite section 66, if property specified in a *forfeiture order is property located outside *Australia:

    (a)  that property vests in equity in the Commonwealth; and

    (b)  that property only vests in the Commonwealth at law to the extent permitted under the law in force in the place where that property is located; and

    (c)  the *responsible authority has power, on behalf of the Commonwealth, to do anything necessary or convenient to:


    (i) give notice of, or otherwise protect, the Commonwealth's equitable interest in that property; or

    (ii) arrange for the enforcement of, or give effect to, the forfeiture order.
    Note:

    The following is an example of action by the responsible authority under subparagraph (1)(c)(ii): arranging for a request under section 32 of the *Mutual Assistance Act in relation to the enforcement of the forfeiture order.

    68A(2)  
    Any action by the *responsible authority under subparagraph (1)(c)(i) is not a dealing for the purposes of subsection 69(1).

    68A(3)  
    Despite section 66 and subsection (1) of this section, if:

    (a)  property specified in a *forfeiture order is property located outside *Australia; and

    (b)  under the law in force in the place where that property is located, that property vests in a person;

    that property vests in that person under that law.

    68A(4)  
    Subsection (3) does not affect any equitable interest vested in the Commonwealth by paragraph (1)(a).

    SECTION 69   When can the Commonwealth begin dealing with forfeited property?  

    69(1)  
    The Commonwealth, and persons acting on its behalf, can only dispose of, or otherwise deal with, property specified in a *forfeiture order after, and only if the order is still in force at, the later of the following times:

    (a)  when:


    (i) if the period provided for lodging an appeal against the order has ended without such an appeal having been lodged - that period ends; or

    (ii) if an appeal against the order has been lodged - the appeal lapses or is finally determined;

    (b)  if the order was made in relation to a person's conviction of an offence - when:


    (i) if the period provided for lodging an appeal against the conviction has ended without such an appeal having been lodged - that period ends; or

    (ii) if an appeal against the conviction has been lodged - the appeal lapses or is finally determined.

    69(2)  
    However, such disposals and dealings may occur earlier with the leave of the court and in accordance with any directions of the court.

    69(3)  
    For the purposes of paragraph (1)(b):

    (a)  if the person is to be taken to have been convicted of the offence because of paragraph 331(1)(b) - an appeal against the finding of the person guilty of the offence is taken to be an appeal against the conviction; and

    (b)  if the person is to be taken to have been convicted of the offence because of paragraph 331(1)(c) - an appeal against the person's conviction of the other offence referred to in that paragraph is taken to be an appeal against the conviction. Controlled property

    69(4) 


    If property covered by a *forfeiture order is controlled property for the purposes of Division 3 of Part 4-1, this section does not prevent or limit the exercise of powers or performance of duties by the *Official Trustee under that Division.

    SECTION 70   How must the Commonwealth deal with forfeited property?  

    70(1)  
    If the *forfeiture order is still in force at the later time mentioned in subsection 69(1), the *Official Trustee must, on the Commonwealth's behalf and as soon as practicable:

    (a)  dispose of any property specified in the order that is not money; and

    (b)  apply:


    (i) any amounts received from that disposal; and

    (ii) any property specified in the order that is money;
    to payment of its remuneration and other costs, charges and expenses of the kind referred to in subsection 288(1) payable to or incurred by it in connection with the disposal and with the *restraining order that covered the property; and

    (ba)  

    apply:

    (i) any amounts received from that disposal; and

    (ii) any property specified in the order that is money;
    to payment of an *associated GST entity's liability (if any) to pay *GST in connection with the disposal; and

    (c)  credit the remainder of the money and amounts received to the *Confiscated Assets Account as required by section 296.

    70(2)  
    However, if the *Official Trustee is required to deal with property specified in a *forfeiture order but has not yet begun:

    (a)  the Minister; or

    (b)  a *senior Departmental officer authorised by the Minister for the purposes of this subsection;

    may direct that the property be alternatively disposed of, or otherwise dealt with, as specified in the direction.

    70(3)  
    Such a direction could be that property is to be disposed of in accordance with the provisions of a specified law.

    Note:

    The quashing of a conviction of an offence relating to a forfeiture may prevent things being done under this section: see section 86.

    SECTION 71   71   Dealings with forfeited property  


    A person commits an offence if:


    (a) the person knows that a *forfeiture order has been made in respect of *registrable property; and


    (b) the person disposes of, or otherwise deals with, the property before the Commonwealth's interest has been registered on the appropriate register; and


    (c) the forfeiture order has not been discharged.

    Penalty: Imprisonment for 5 years or 300 penalty units, or both.

    Division 4A - Controlled property  

    SECTION 71A   Official Trustee may take custody and control of forfeited property  

    71A(1)  
    The *Official Trustee may take custody and control of any or all of the property covered by a *forfeiture order.

    Note:

    Part 4-1 sets out the Official Trustee's powers over the property.

    71A(2)  
    If the *Official Trustee decides to take custody and control of property under subsection (1), the court that made the *forfeiture order that covers the property may make either or both of the following orders:

    (a)  an order determining any question relating to the exercise of powers conferred on the Official Trustee under Division 3 of Part 4-1, or the performance of duties imposed on the Official Trustee under that Division, to the extent that those powers or duties relate to the property;

    (b)  an order directing any person to do anything necessary or convenient to enable the Official Trustee to take custody and control of the property.

    71A(3)  
    The court may only make an order under subsection (2) on the application of:

    (a)  the *responsible authority; or

    (b)  the person who, immediately before the making of the *forfeiture order, was the owner of the property covered by that order; or

    (c)  the *Official Trustee; or

    (d)  any other person who has the leave of the court.

    Division 5 - Reducing the effect of forfeiture orders  

    Subdivision A - Relieving hardship  

    SECTION 72   Relieving certain dependants from hardship  

    72(1)  
    The court making a *forfeiture order specifying a *person's property must make another order directing the Commonwealth to pay a specified amount to a *dependant of the person if:


    (a) the forfeiture order is not to be made under section 48; and


    (b) the court is satisfied that:


    (i) the forfeiture order would cause hardship to the dependant; and

    (ii) the specified amount would relieve that hardship; and

    (iii) if the dependant is aged at least 18 years - the dependant had no knowledge of the person's conduct that is the subject of the forfeiture order.

    72(2)  
    The specified amount must not exceed the difference between:


    (a) what the court considers is likely to be the amount received from disposing of the *person's property under the *forfeiture order; and


    (b) what the court considers is likely to be the sum of any payments of the kind referred to in paragraph 70(1)(b) in connection with the forfeiture order.

    72(3)  
    An order under this section may relate to more than one of the person's *dependants.

    Subdivision B - Excluding property from a forfeiture order  

    SECTION 73   Making exclusion orders  

    73(1)  


    A court that made a *forfeiture order, or that is hearing, or is to hear, an application (a forfeiture application ) for a forfeiture order, must make an order excluding a specified *interest in property from forfeiture (an exclusion order ) if:


    (a) a person applies for the exclusion order; and


    (b) the forfeiture order, or the forfeiture application, specifies property in which the applicant has an interest; and


    (c) if the forfeiture order was (or the forfeiture order applied for would be) made under section 47 or 49 - the court is satisfied that the applicant's interest in the property is neither of the following:


    (i) *proceeds of *unlawful activity;

    (ii) if an offence on which the order was (or would be) based is a *serious offence - an instrument of any serious offence; and


    (d) if the forfeiture order was (or the forfeiture order applied for would be) made under section 48 - the court is satisfied that the applicant's interest in the property is neither proceeds nor an instrument of any of the offences to which the forfeiture order or forfeiture application relates.


    (e) (Repealed by No 4 of 2010)

    73(2)  
    An *exclusion order must:


    (a) specify the nature, extent and value (at the time of making the order) of the *interest concerned; and


    (b) direct that the interest be excluded from the operation of the relevant *forfeiture order; and


    (c) if the interest has vested (in law or equity) in the Commonwealth under this Part and is yet to be disposed of - direct the Commonwealth to transfer the interest to the applicant; and


    (d) if the interest has vested (in law or equity) in the Commonwealth under this Part and has been disposed of - direct the Commonwealth to pay the applicant an amount equal to the value specified under paragraph (a).

    SECTION 74   Applying for exclusion orders  

    Before a forfeiture order has been made

    74(1)  


    A person may apply for an *exclusion order if a *forfeiture order that could specify property in which the person claims an *interest has been applied for, but is yet to be made. After a forfeiture order has been made

    74(2)  


    A person who claims an *interest in property specified in a *forfeiture order may, at any time after the forfeiture order is made, apply to the court that made the forfeiture order for an *exclusion order.

    74(3)  


    However, unless the court gives leave, the person cannot apply for an *exclusion order if he or she:


    (a) was notified of the application for the *forfeiture order, but did not appear at the hearing of that application; or


    (b) appeared at the hearing of that application.

    74(4)  


    The court may give the person leave to apply if the court is satisfied that:


    (a) if paragraph (3)(a) applies - the person had a good reason for not appearing; or


    (b) if paragraph (3)(b) applies - the person now has evidence relevant to the person's application that was not available to the person at the time of the hearing; or


    (c) in either case - there are other special grounds for granting the leave.

    SECTION 75   Giving notice of matters relevant to an application  

    75(1)  


    An applicant for an *exclusion order must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.
    Note:

    The responsible authority in relation to an application for an exclusion order is the authority responsible for the forfeiture order or forfeiture application referred to in section 73 (making exclusion orders).

    75(2)  


    The *responsible authority may appear and adduce evidence at the hearing of the application.

    75(3)  


    The *responsible authority must give the applicant notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.

    SECTION 76   76   When an application can be heard  


    An application for an *exclusion order must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.

    Subdivision C - Compensating for proportion of property not derived or realised from commission of any offence  

    SECTION 77   Making compensation orders  

    77(1)  


    A court that made a *forfeiture order, or that is hearing, or is to hear, an application for a forfeiture order, must make an order under subsection (2) (a compensation order ) if:


    (a) a person (the applicant ) has applied for a compensation order; and


    (b) the court is satisfied that the applicant has an *interest in property specified in the forfeiture order or in the application for the forfeiture order; and


    (c) the court is satisfied that a proportion of the value of the applicant's interest was not derived or realised, directly or indirectly, from the commission of any offence; and


    (d) the court is satisfied that the applicant's interest is not an instrument of any offence; and


    (e) in the case of a court that is hearing or is to hear an application for a forfeiture order - the court makes the forfeiture order.

    77(2)  
    A *compensation order must:


    (a) specify the proportion found by the court under paragraph (1)(c); and


    (b) direct the Commonwealth, once the property has vested absolutely in it, to:


    (i) if the property has not been disposed of - dispose of the property; and

    (ii) pay the applicant an amount equal to that proportion of the difference between the amount received from disposing of the property and the sum of any payments of the kind referred to in paragraph 70(1)(b) in connection with the *forfeiture order.

    SECTION 78   Application for compensation orders  

    Before a forfeiture order has been made

    78(1)  
    A person may apply to a court for a *compensation order if an application for a *forfeiture order that could specify property in which the person claims an *interest has been made to the court, but the forfeiture order is yet to be made. After a forfeiture order has been made

    78(2)  
    A person who claims an *interest in property specified in a *forfeiture order may, at any time after the forfeiture order is made, apply to the court that made the forfeiture order for a *compensation order.

    78(3)  
    However, unless the court gives leave, the person cannot apply under subsection (2) if he or she:


    (a) was notified of the application for the *forfeiture order, but did not make an application under subsection (1) before the forfeiture order was made; or


    (b) appeared at the hearing of the application for the forfeiture order.

    78(4)  
    The court may give the person leave to apply under subsection (2) if the court is satisfied that:


    (a) if paragraph (3)(a) applies - the person had a good reason for not making an application under subsection (1) before the *forfeiture order was made; or


    (b) in either case:


    (i) the person now has evidence relevant to the making of the *compensation order that was not available to the person at the time the forfeiture order was made; or

    (ii) there are other special grounds for granting the leave.

    SECTION 79   Giving notice of matters relevant to an application  

    79(1)  


    An applicant for a *compensation order must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.
    Note:

    The responsible authority in relation to an application for a compensation order is the authority responsible for the forfeiture order or forfeiture application referred to in section 77 (making compensation orders).

    79(2)  


    The *responsible authority may appear and adduce evidence at the hearing of the application.

    79(3)  


    The *responsible authority must give the applicant notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.

    SECTION 79A   79A   When an application can be heard  


    An application for a *compensation order must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.

    Division 6 - The effect on forfeiture orders of acquittals and quashing of convictions  

    SECTION 80   80   Forfeiture order made under section 47 or 49 unaffected by acquittal or quashing of conviction  


    A *forfeiture order made under section 47 or 49 against a person in relation to an offence is not affected if:


    (a) having been charged with the offence, the person is acquitted; or


    (b) the person is convicted of the offence and the conviction is subsequently *quashed.

    SECTION 81   Discharge of forfeiture order made under section 48 on quashing of conviction  

    81(1)  
    A *forfeiture order made under section 48 in relation to a person's conviction of an offence is discharged if:


    (a) the person's conviction of the offence is subsequently *quashed (whether or not the order relates to the person's conviction of other offences that have not been quashed); and


    (b) the *responsible authority does not, within 14 days after the conviction is quashed, apply to the court that made the order for the order to be confirmed.

    81(2)  
    However, unless and until a court decides otherwise on such an application, the *quashing of the conviction does not affect the *forfeiture order:


    (a) for 14 days after the conviction is quashed; and


    (b) if the *responsible authority makes such an application.

    SECTION 82   Notice of application for confirmation of forfeiture order  

    82(1)  


    The *responsible authority must give written notice of an application for confirmation of the *forfeiture order to:


    (a) the person whose conviction was *quashed; and


    (b) any person who claims, or prior to the forfeiture claimed, an *interest in property covered by the order; and


    (c) any person whom the authority reasonably believes may have had an interest in that property before the forfeiture.

    Note:

    If the authority applies for confirmation of a forfeiture order, it can also apply for an examination order under Part 3-1.

    82(2)  


    The court hearing the application may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.

    SECTION 83   Procedure on application for confirmation of forfeiture order  

    83(1)  
    Any person who claims an *interest in property covered by the *forfeiture order may appear and adduce evidence at the hearing of the application for confirmation of the order.

    83(2)  
    The court may, in determining the application, have regard to:


    (a) the transcript of any proceeding against the person for:


    (i) the offence of which the person was convicted; or

    (ii) if the person was taken to be convicted of that offence because of paragraph 331(1)(c) - the other offence referred to in that paragraph;
    including any appeals relating to the conviction; and


    (b) the evidence given in any such proceeding.

    SECTION 84   Court may confirm forfeiture order  

    84(1)  


    The court may confirm the *forfeiture order if the court is satisfied that:


    (a) it could have made a forfeiture order under section 47 in relation to the offence in relation to which the person's conviction was *quashed if, when the *responsible authority applied for an order under section 48, it had instead applied for an order under section 47; or


    (b) it could have made a forfeiture order under section 49 in relation to the offence in relation to which the person's conviction was quashed if, when the authority applied for an order under section 48, it had instead applied for an order under section 49.

    84(2)  


    For the purposes of paragraphs (1)(a) and (b), the requirement in paragraph 47(1)(b) or 49(1)(b) (as the case requires) is taken to be satisfied.

    84(2)  
    (Repealed by No 3 of 2010)

    SECTION 85   Effect of court's decision on confirmation of forfeiture order  

    85(1)  


    If the court confirms the *forfeiture order under paragraph 84(1)(a), the order is taken not to be affected by the *quashing of the person's conviction of the offence.

    85(2)  


    If the court confirms the *forfeiture order under paragraph 84(1)(b):


    (a) to the extent that the order covers property that is:


    (i) in any case - *proceeds of the offence; or

    (ii) if the offence is a *serious offence - an *instrument of the offence;
    the order is taken not to be affected by the *quashing of the person's conviction of the offence; but


    (b) to the extent that the order covers property that is:


    (i) in any case - not proceeds of the offence; and

    (ii) if the offence is a serious offence - not an instrument of the offence;
    the order is discharged.

    85(3)  
    If the court decides not to confirm the *forfeiture order, the order is discharged.

    SECTION 86   86   Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture order  


    During the period:


    (a) starting on the day after the person's conviction of the offence was *quashed; and


    (b) ending when the court decides whether to confirm the *forfeiture order;

    the *Official Trustee must not do any of the things required under section 70 in relation to property covered by the order or amounts received from disposing of such property.

    Division 7 - Miscellaneous  

    SECTION 87   Giving notice if a forfeiture order is discharged on appeal or by quashing of a conviction  

    87(1)  
    This section applies in relation to particular property if:


    (a) a *forfeiture order that covered that property is discharged by a court hearing an appeal against the making of the order; or


    (b) a forfeiture order that covered that property is discharged under section 81 or subsection 85(3); or


    (c) a forfeiture order that covered the property is discharged under subsection 85(2) in relation to that property.

    87(2)  


    The *responsible authority must, as soon as practicable, give written notice of the discharge to any person the authority reasonably believes may have had an *interest in that property immediately before the order was made.

    87(3)  


    The *responsible authority must, if required by a court, give or publish notice of the discharge to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.

    87(4)  
    A notice given under this section must include a statement to the effect that a person claiming to have had an *interest in that property may apply under section 88 for the transfer of the interest, or its value, to the person.

    SECTION 88   Returning property etc. following the discharge of a forfeiture order  

    88(1)  


    The *Official Trustee must arrange for:

    (a)  if property specified in a *forfeiture order is vested in the Commonwealth - an *interest in the property to be transferred to a person claiming to have had the interest in the property immediately before the order was made; or

    (b)  if property specified in a forfeiture order is no longer vested in the Commonwealth - an amount equal to the value of the interest in the property to be paid to the person;

    if:

    (c)  the forfeiture order has been discharged in relation to the property:


    (i) by a court hearing an appeal against the making of the order; or

    (ii) under section 81 or 85; and

    (d)  

    the person applies to the Official Trustee, in writing, for the transfer of the interest to the person; and

    (e)  the person had that interest in the property immediately before the order was made.

    88(2)  


    If the *Official Trustee must arrange for the property to be transferred, the Official Trustee may also, on behalf of the Commonwealth, do or authorise the doing of anything necessary or convenient to give effect to the transfer.

    88(3)  
    Without limiting subsection (2), things that may be done or authorised under that subsection include:

    (a)  executing any instrument; and

    (b)  applying for registration of an *interest in the property on any appropriate register.

    SECTION 89   Person with interest in forfeited property may buy back the interest  

    89(1)  
    If a court:

    (a)  makes a *forfeiture order against property; and

    (b)  makes an order under section 57 in respect of an *interest in the property;

    then:

    (c)  the payment to the Commonwealth, while the interest is still vested in the Commonwealth, of the amount specified in the order under section 57 as the value of the interest discharges the forfeiture order to the extent to which it relates to the interest; and

    (d)  

    the *Official Trustee:

    (i) must arrange for the interest to be transferred to the person in whom it was vested immediately before the property was forfeited to the Commonwealth; and

    (ii) may, on behalf of the Commonwealth, do or authorise the doing of anything necessary or convenient to effect the transfer.

    89(2)  
    Without limiting subparagraph (1)(d)(ii), things that may be done or authorised under that subparagraph include:

    (a)  executing any instrument; and

    (b)  making an application for registration of an *interest in the property on any appropriate register.

    SECTION 90   Buying out other interests in forfeited property  

    90(1)  
    If:

    (a)  property is forfeited to the Commonwealth under this Part; and

    (b)  an interest in the property is required to be transferred to a person (the relevant person ) under subsection 88(1) or 89(1), or under a direction under paragraph 73(2)(c); and

    (c)  the relevant person's interest in the property, immediately before the forfeiture took place, was not the only interest in the property; and

    (d)  the relevant person gives written notice to each other person who had an interest in the property immediately before the forfeiture took place that:


    (i) the relevant person intends to purchase that other interest from the Commonwealth; and

    (ii) the person served with the notice may, within 21 days after receiving the notice, lodge a written objection to the purchase of that other interest with the Minister and the *Official Trustee; and

    (e)  no person served with notice under paragraph (d) in relation to that other interest lodges a written objection to the purchase of that other interest with the Minister and the Official Trustee within the period referred to in that paragraph; and

    (f)  the relevant person pays to the Commonwealth, while that other interest is still vested in the Commonwealth, an amount equal to the value of that other interest;

    the Official Trustee must arrange for that other interest to be transferred to the relevant person.

    90(2)  
    If a person served with notice under paragraph (1)(d) in relation to the other interest mentioned in that paragraph lodges a written objection to the purchase of that other interest with the Minister and the *Official Trustee within the period referred to in that paragraph:

    (a)  the Minister; or

    (b)  a *senior Departmental officer authorised by the Minister for the purposes of this subsection;

    may direct the Official Trustee to transfer that other interest to the person.

    PART 2-3 - FORFEITURE ON CONVICTION OF A SERIOUS OFFENCE  

    SECTION 91   91   Simplified outline of this Part  


    If a person is convicted of a serious offence, property that is subject to a restraining order relating to the offence is forfeited to the Commonwealth unless the property is excluded from forfeiture.

    There are cases in which compensation is payable by the Commonwealth.

    There are cases in which forfeited property can be recovered from the Commonwealth.

    Note:

    Property can be forfeited in relation to a serious offence, without a conviction, under a forfeiture order under Part 2-2.

    Division 1 - Forfeiture on conviction of a serious offence  

    SECTION 92   Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence  

    92(1)  
    Property is forfeited to the Commonwealth at the end of the period applying under subsection (3) if:


    (a) a person is convicted of a *serious offence; and


    (b) either:


    (i) at the end of that period, the property is covered by a *restraining order under section 17 or 18 against the person that relates to the offence; or

    (ii) the property was covered by such a restraining order against the person, but the order was revoked under section 44 or the property was excluded from the order under that section; and


    (c) the property is not subject to an order under section 94 excluding the property from forfeiture under this Part.

    92(2)  
    It does not matter whether:


    (a) the *restraining order was made before or after the person's conviction of the *serious offence; or


    (b) immediately before forfeiture, the property is the *person's property or another person's property.

    92(3)  
    The period at the end of which the property is forfeited is:


    (a) the 6 month period starting on the *conviction day; or


    (b) if an *extension order is in force at the end of that period - the extended period relating to that extension order.

    92(4)  
    This section does not apply if the person is taken to have been convicted of the offence because the person *absconded in connection with the offence.

    92(5)  
    A *restraining order in relation to a *related offence with which the person has been charged, or is proposed to be charged, is taken, for the purposes of this section, to be a restraining order in relation to the offence of which the person was convicted.

    92(6)  
    If:


    (a) under section 44, a *restraining order that covered particular property is revoked, or particular property is excluded from a restraining order; and


    (b) the security referred to in paragraph 44(1)(e), or the undertaking referred to in paragraph 44(2)(e), in connection with the revocation or exclusion is still in force;

    the property is taken, for the purposes of this section, to be covered by the restraining order.

    SECTION 92A   Notice of date of forfeiture under this Part, etc  

    92A(1)  


    The *responsible authority for the *restraining order referred to in paragraph 92(1)(b) must, before property is forfeited under this Part, take reasonable steps to give any person who has or claims, or whom the authority reasonably believes may have, an *interest in the property a written notice stating:


    (a) the date on which the property will be forfeited under this Part unless it is excluded from forfeiture; and


    (b) the effect of section 93 (which deals with *extension orders); and


    (c) that the person may be able to apply for an order under one of the following sections in relation to the property:


    (i) section 29 (which deals with the exclusion of property from *restraining orders);

    (ii) section 94 (which deals with the exclusion of property from forfeiture);
    (iii)
    section 94A (which deals with compensation).

    92A(2)  


    However, the *responsible authority need not give a notice to a person under subsection (1) if the person has made:


    (a) an application for an *extension order in relation to the property; and


    (b) an application under section 30, 31 or 94 in relation to the property.

    SECTION 93   Making an extension order extending the period before property is forfeited  

    93(1)  


    The court that made the *restraining order referred to in paragraph 92(1)(b) may make an order (an extension order ) specifying an extended period for the purposes of subsection 92(3) if:


    (a) an application for the order is made within 6 months after the start of the *conviction day for the relevant conviction; and


    (b) the applicant has also applied to the court under:


    (i) section 30 or 31 to exclude property from the restraining order; or

    (ii) section 94 to exclude the property that is covered by the restraining order from forfeiture under this Part; and


    (c) the court is satisfied that the applicant made the application under section 30, 31 or 94 without undue delay, and has since diligently followed up that application.

    The extended period specified must end no later than 15 months from the start of the conviction day for the relevant conviction.

    93(2)  


    The *extension order stops being in force if the application under section 30, 31 or 94 is finally determined before the end of the 6 month period starting on the *conviction day for the relevant conviction.

    93(3)  


    The extended period ends if the application under section 30, 31 or 94 is finally determined before the end of that period.

    93(4)  


    If the court makes the *extension order, the *responsible authority must take reasonable steps to give any person who has or claims, or whom the authority reasonably believes may have, an *interest in the property to which the order relates a written notice stating:


    (a) the date on which the property will be forfeited under this Part, in accordance with the extension order, unless it is excluded from forfeiture; and


    (b) the effect of subsections (2) and (3).

    SECTION 94   Excluding property from forfeiture under this Part  

    94(1)  


    The court that made a *restraining order referred to in paragraph 92(1)(b) must make an order excluding particular property from forfeiture under this Part if:


    (a) a person (the applicant ) has applied for an order under this section; and


    (b) the court is satisfied that the applicant has an *interest in property covered by the restraining order; and


    (c) (Repealed by No 4 of 2010)


    (d) a person has been convicted of a *serious offence to which the restraining order relates; and


    (e) the court is satisfied that the applicant's interest in the property is neither *proceeds of *unlawful activity nor an *instrument of unlawful activity; and


    (f) the court is satisfied that the applicant's interest in the property was lawfully acquired.

    94(2)  
    To avoid doubt, an order under this section cannot be made in relation to property if the property has already been forfeited under this Part.

    94(3) 


    The person must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.

    94(4)  


    The *responsible authority may appear and adduce evidence at the hearing of the application.

    94(5)  


    The *responsible authority must give the applicant notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.

    94(6)  


    The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.

    SECTION 94A   Compensating for proportion of property not derived or realised from commission of any offence  

    94A(1)  
    The court that made a *restraining order referred to in paragraph 92(1)(b) must make an order that complies with subsection (2) if:


    (a) a person (the applicant ) has applied for an order under this section; and


    (b) the court is satisfied that the applicant has an *interest in property covered, or that was at any time covered, by the restraining order; and


    (c) a person has been convicted of a *serious offence to which the restraining order relates; and


    (d) the court is satisfied that a proportion of the value of the applicant's interest was not derived or realised, directly or indirectly, from the commission of any offence; and


    (e) the court is satisfied that the applicant's interest is not an *instrument of any offence.

    94A(2)  
    An order under this section must:


    (a) specify the proportion found by the court under paragraph (1)(d); and


    (b) direct the Commonwealth, once the property has vested absolutely in it, to:


    (i) if the property has not been disposed of - dispose of the property; and

    (ii) pay the applicant an amount equal to that proportion of the difference between the amount received from disposing of the property and the sum of any payments of the kind referred to in paragraph 100(1)(b) in connection with the forfeiture.

    94A(3)  
    A person who claims an *interest in property covered by a *restraining order referred to in paragraph 92(1)(b) may apply to the court that made the restraining order for an order under this section at any time.

    94A(4)  
    However, if the property has already been forfeited under this Part, the person cannot, unless the court gives leave, apply under subsection (3) if he or she:


    (a) either:


    (i) was given a notice under subsection 92A(1) in relation to the property; or

    (ii) was not given such a notice because of subsection 92A(2); and


    (b) did not make the application under subsection (3) before that forfeiture.

    94A(5)  
    The court may give the person leave to apply if the court is satisfied that:


    (a) the person had a good reason for not making the application before the forfeiture; or


    (b) the person now has evidence relevant to the application that was not available before the forfeiture; or


    (c) there are special grounds for granting the leave.

    94A(6)  


    The person must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.

    94A(7)  


    The *responsible authority may appear and adduce evidence at the hearing of the application.

    94A(8)  


    The *responsible authority must give the applicant notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.

    94A(9)  


    The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.

    SECTION 95   95   Court may declare that property has been forfeited under this Part  


    The court that made the *restraining order referred to in paragraph 92(1)(b) may declare that particular property has been forfeited under this Part if:


    (a) the *responsible authority applies to the court for the declaration; and


    (b) the court is satisfied that that property is forfeited under this Part.

    Division 2 - Effect of forfeiture on conviction of a serious offence  

    SECTION 96   96   When is property forfeited - general rule  


    Property forfeited under section 92 vests absolutely in the Commonwealth at the time of the forfeiture.

    SECTION 97   First exception - registrable property  

    97(1)  
    Despite section 96, if property forfeited under section 92 is *registrable property:


    (a) that property vests in equity in the Commonwealth but does not vest in the Commonwealth at law until the applicable registration requirements have been complied with; and


    (b) the *responsible authority for the *restraining order referred to in paragraph 92(1)(b) has power, on behalf of the Commonwealth, to do anything necessary or convenient to give notice of, or otherwise protect, the Commonwealth's equitable interest in that property; and


    (c) the Commonwealth is entitled to be registered as the owner of that property; and


    (d) the *Official Trustee has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to obtain the registration of the Commonwealth as the owner.

    97(2)  


    Any action by the *responsible authority under paragraph (1)(b) is not a dealing for the purposes of subsection 99(1).

    97(3)  
    The *Official Trustee's powers under paragraph (1)(d) include executing any instrument required to be executed by a person transferring an *interest in property of that kind.

    SECTION 98   98   Second exception - if a joint owner dies  


    Despite section 96, if:


    (a) a person who is convicted of a *serious offence was, immediately before his or her death, the joint owner of property; and


    (b) the period that would apply under subsection 92(3) if the property were subject to forfeiture under section 92 in relation to the conviction had not ended before his or her death; and


    (c) if that period had ended immediately before his or her death - the property would have been forfeited under section 92;

    the property is taken to have vested in the Commonwealth immediately before his or her death.

    SECTION 98A   Third exception - property located outside Australia  

    98A(1)  
    Despite section 96, if property forfeited under section 92 is property located outside *Australia:

    (a)  that property vests in equity in the Commonwealth; and

    (b)  that property only vests in the Commonwealth at law to the extent permitted under the law in force in the place where that property is located; and

    (c)  the *responsible authority has power, on behalf of the Commonwealth, to do anything necessary or convenient to:


    (i) give notice of, or otherwise protect, the Commonwealth's equitable interest in that property; or

    (ii) arrange for the enforcement of, or give effect to, the declaration under section 95 that relates to the forfeiture of that property.
    Note:

    The following is an example of action by the responsible authority under subparagraph (1)(c)(ii): arranging for a request under section 32 of the *Mutual Assistance Act in relation to the enforcement of the declaration under section 95 of this Act that relates to the forfeiture of that property.

    98A(2)  
    Any action by the *responsible authority under subparagraph (1)(c)(i) is not a dealing for the purposes of subsection 99(1).

    98A(3)  
    Despite section 96 and subsection (1) of this section, if:

    (a)  property forfeited under section 92 is property located outside *Australia; and

    (b)  under the law in force in the place where that property is located, that property vests in a person;

    that property vests in that person under that law.

    98A(4)  
    Subsection (3) does not affect any equitable interest vested in the Commonwealth by paragraph (1)(a).

    SECTION 99   When can the Commonwealth begin dealing with forfeited property?  

    99(1)  
    The Commonwealth, and persons acting on its behalf, can dispose of, or otherwise deal with, property forfeited under section 92 in relation to a person's conviction of a *serious offence if and only if:

    (a)  the period applying under subsection (3) has come to an end; and

    (b)  the conviction has not been *quashed by that time.

    99(2)  
    However, such disposals and dealings may occur earlier with the leave of the court and in accordance with any directions of the court.

    99(3)  
    The period at the end of which the Commonwealth, and persons acting on its behalf, can dispose of or otherwise deal with the property is:

    (a)  if the conviction is one in relation to which neither paragraph 331(1)(b) nor (c) applies, the period ending:


    (i) if the period provided for lodging an appeal against the conviction has ended without such an appeal having been lodged - at the end of that period; or

    (ii) if an appeal against the conviction has been lodged - when the appeal lapses or is finally determined; or

    (b)  if the person is taken to have been convicted because of paragraph 331(1)(b), the period ending:


    (i) if the period provided for lodging an appeal against the finding of the person guilty of the offence has ended without such an appeal having been lodged - at the end of that period; or

    (ii) if an appeal against the finding of the person guilty of the offence has been lodged - when the appeal lapses or is finally determined; or

    (c)  if the person is taken to have been convicted because of paragraph 331(1)(c), the period ending:


    (i) if the period provided for lodging an appeal against the person's conviction of the other offence referred to in that paragraph has ended without such an appeal having been lodged - at the end of that period; or

    (ii) if an appeal against the person's conviction of the other offence referred to in that paragraph has been lodged - when the appeal lapses or is finally determined.
    Controlled property

    99(4)  


    If property forfeited under section 92 is controlled property for the purposes of Division 3 of Part 4-1, this section does not prevent or limit the exercise of powers or performance of duties by the *Official Trustee under that Division.

    SECTION 100   How must forfeited property be dealt with?  

    100(1)  


    If subsection 99(1) authorises disposal of or dealing with particular property forfeited under section 92, the *Official Trustee must, on the Commonwealth's behalf and as soon as practicable:

    (a)  dispose of any of the forfeited property that is not money; and

    (b)  apply:


    (i) any amounts received from that disposal; and

    (ii) any of the forfeited property that is money;
    to payment of its remuneration and other costs, charges and expenses of the kind referred to in subsection 288(1) payable to or incurred by it in connection with the disposal and with the *restraining order that covered the property; and

    (ba)  

    apply:

    (i) any amounts received from that disposal; and

    (ii) any of the forfeited property that is money;
    to payment of an *associated GST entity's liability (if any) to pay *GST in connection with the disposal; and

    (c)  credit the remainder of the money and amounts received to the *Confiscated Assets Account as required by section 296.

    100(2)  
    However, if the *Official Trustee has not yet begun to deal with property forfeited under section 92, as required by this section:

    (a)  the Minister; or

    (b)  a *senior Departmental officer authorised by the Minister for the purposes of this subsection;

    may direct that the property be disposed of, or otherwise dealt with, as specified in the direction.

    100(3)  
    Such a direction could be that property is to be disposed of in accordance with the provisions of a specified law.

    Note:

    The quashing of a conviction of an offence relating to the for