Crimes Legislation Amendment (Economic Disruption) Act 2021 (3 of 2021)

Schedule 3   Buy-backs

Part 1   Amendments

Proceeds of Crime Act 2002

1   Section 57

Repeal the section, substitute:

57 Court may make orders relating to buying back forfeited property

(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.

(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.

(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.

(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.

(5) For the purposes of this section, an eligible debt of the person is a debt incurred in good faith by the person.

(6) This subsection covers any of the following property:

(a) property that is wholly or partly derived or realised by the 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.

57A Applying for an order under section 57

Before a forfeiture order has been made

(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

(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.

(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.

(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.

(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

(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.

(7) The *responsible authority may appear and adduce evidence at the hearing of an application under subsection (1) or (2).

(8) To avoid doubt, the *responsible authority may represent the Commonwealth in proceedings relating to an application under subsection (1) or (2).

(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.

(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.


Copyright notice

© Australian Taxation Office for the Commonwealth of Australia

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).