An Act to provide for confiscation of the proceeds of crime, and for other purposes
Chapter 1—Introduction
Part 1‑1—Preliminary
1 Short title
This Act may be cited as the Proceeds of Crime Act 2002.
2 Commencement
(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) 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.
(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.
3 Identifying defined terms
(1) Many of the terms in this Act are defined in the Dictionary in Chapter 6.
(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) 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.
(4) Terms are not asterisked in headings, notes, examples, explanatory tables, guides, outline provisions or diagrams.
(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.
(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 |
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
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
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).
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).
8 Information gathering (Chapter 3)
(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).
(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).
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).
10 Miscellaneous (Chapter 5)
Chapter 5 deals with miscellaneous matters.
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
12 Act to bind Crown
(1) This Act binds the Crown in right of the Commonwealth, each of the States and each of the *self‑governing Territories.
(2) This Act does not make the Crown liable to be prosecuted for an offence.
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.
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.
14A Concurrent operation of State and Territory laws
(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.
(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
14B Constitutional basis of the national unexplained wealth provisions
What this section is about
(1) This section sets out the constitutional basis of the *national unexplained wealth provisions.
National unexplained wealth provisions
(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
(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
(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
(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
(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
(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.
(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.
(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.
(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
(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, the national unexplained wealth provisions as applying in a self‑governing Territory are laws of the Commonwealth.
Application outside Australia
(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.
14C What is a participating State?
Participating State
(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
(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
(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
(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
(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
(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
(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
(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.
(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.
(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
(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.
14D Meaning of unexplained wealth
(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.
(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.
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.
14F When a non‑participating State is a cooperating State
States that have referred text references 1 and 2
(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
(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.
(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.
(4) The Minister may, by legislative instrument, declare that a State is not a *cooperating State.
(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
14G Effect of rollback by participating States on unexplained wealth proceedings
When this section applies
(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
(2) This Act applies to the proceedings as if the amendment had not been enacted.
Proceedings for restraining orders
(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
(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
(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).
14H Effect of rollback by self‑governing Territories on unexplained wealth proceedings
When this section applies
(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
(2) This Act applies to the proceedings as if the amendment had not been enacted.
Proceedings for restraining orders
(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
(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
(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).
14J Effect of rollback by participating States on action taken under State reference information gathering provisions
When this section applies
(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
(2) This Act applies to the application, order or notice as if the amendment had not been enacted.
Applications for production orders
(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
(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.
14K Effect of rollback by self‑governing Territories on action taken under State reference information gathering provisions
When this section applies
(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
(2) This Act applies to the application, order or notice as if the amendment had not been enacted.
Applications for production orders
(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
(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
14L Concurrent operation of State and Territory laws with national unexplained wealth provisions
Concurrent operation of laws
(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.
(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.
(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 prescribed by the regulations.
(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
(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
(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.
(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
14M Information gathering by participating States and self‑governing Territories
Schedule 1 has effect.
14N Transitional, application and saving provisions relating to the national cooperative scheme on unexplained wealth
Schedule 2 has effect.
Chapter 2—The confiscation scheme
Part 2‑1A—Freezing orders
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 or 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
15B Making freezing orders
(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 National Anti‑Corruption Commission, 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.
(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
(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
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 National Anti‑Corruption Commission, the Australian Crime Commission and the Immigration and Border Protection Department.
15D Applying for freezing orders by telephone or other electronic means
(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 National Anti‑Corruption Commission, the Australian Crime Commission and the Immigration and Border Protection Department.
(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.
(3) The magistrate may require:
(a) communication by voice to the extent that it is practicable in the circumstances; and
(b) any further information.
15E Making order by telephone etc.
(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.
(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.
(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.
(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.
(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.
(6) If the applicant does not comply with subsection (5), the *freezing order is taken never to have had effect.
(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).
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.
15FA Prohibition of publication of evidence—proceedings for freezing orders
(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).
(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.
(3) The magistrate may make an order under subsection (2) at any time after the application is made and before it is determined.
(4) The power conferred by subsection (2) is in addition to, and is not taken to derogate from, any other power of the magistrate.
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.
15H Offences relating to orders made under section 15E
Offence for stating incorrect names in telephone orders
(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
(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
(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
(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
15J Service of freezing order etc. on financial institution and account‑holder
(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.
(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).
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.
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.
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 making or operation of a freezing order.
Division 4—Duration of freezing orders
15N When a freezing order is in force
(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.
(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.
(3) The *freezing order, as originally made, must not specify a period of more than 3 *working days.
15P Order extending a freezing order
(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 National Anti‑Corruption Commission, the Australian Crime Commission and the Immigration and Border Protection Department.
(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.
(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.
(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).
(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
15Q Magistrate may vary freezing order to allow withdrawal to meet reasonable expenses
(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 reasonable living expenses of any of the *dependants of the person;
(c) the reasonable business expenses of the person;
(d) a specified debt incurred in good faith by the person.
(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 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 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.
(3) The variation does not take effect until written notice of it is given to the *financial institution.
Division 6—Revoking freezing orders
15R Application to revoke a freezing order
(1) A person may apply to a magistrate to revoke a *freezing order.
(2) The applicant for the revocation must give written notice of the application and the grounds on which the revocation is sought 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.
(3) One or more of the following may adduce additional material to the magistrate relating to the application to revoke the *freezing order:
(a) the *authorised officer who applied for the freezing order;
(b) the authorised officer whose affidavit supported the application for the freezing order;
(c) another authorised officer described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer mentioned in paragraph (a) or (b) of this subsection.
(4) The magistrate may revoke the *freezing order if satisfied that it is in the interests of justice to do so.
15S Notice of revocation of a freezing order
(1) If a *freezing order relating to an *account with a *financial institution is revoked under section 15R, an *authorised officer (the notifying officer) described in the paragraph of the definition of authorised officer in section 338 that describes the authorised officer who applied for the freezing order must cause written notice of the revocation to be given to:
(a) the financial institution; and
(b) each person in whose name the account is held.
(2) However, the notifying officer need not give notice to the applicant for the revocation.
(3) Subsection (1) does not require more than one *authorised officer to cause notice of the revocation to be given.
Part 2‑1—Restraining orders
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
17 Restraining orders—people convicted of or charged with indictable offences
When a restraining order must be made
(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 suspicions stated in the affidavit on reasonable grounds.
Property that a restraining order may cover
(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
(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
(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.
(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
(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.
18 Restraining orders—people suspected of committing serious offences
When a restraining order must be made
(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 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
(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
(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
(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.
(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
(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.
19 Restraining orders—property suspected of being proceeds of indictable offences etc.
When a restraining order must be made
(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
(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
(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
(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.
(5) The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
20 Restraining orders—people suspected of deriving literary proceeds from indictable offences etc.
When a restraining order must be made
(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
(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
(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
(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
(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.
(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
(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.
20A Restraining orders—unexplained wealth
When a restraining order must be made
(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
(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
(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.
Refusal to make a restraining order
(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) 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.
(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.
(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
(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.
21 Refusal to make an order for failure to give undertaking
(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.
(2) The *responsible authority may give such an undertaking on behalf of the Commonwealth.
22 Restraining orders must only relate to one suspect
(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.
(2) A *restraining order may relate to more than one offence in relation to that *suspect.
23 Conditions on restraining orders
A *restraining order may be made subject to conditions.
24 Allowance for expenses
(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.
(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.
(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.
24A Excluding property from or revoking restraining orders in certain cases when expenses are not allowed
(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.
(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.
(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).
(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
25 Proceeds of crime authority may apply for a restraining order
A *proceeds of crime authority may apply for a *restraining order.
26 Notice of application
(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.
(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.
(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.
(4) The court must consider the application without notice having been given if the *responsible authority requests the court to do so.
(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.
(6) A person who claims an *interest in property may appear and adduce evidence at the hearing of the application.
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.
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.
28A Prohibition of publication of evidence—proceedings for restraining orders
(1) If a *proceeds of crime authority applies to a court for a *restraining order, the court may make an order under subsection (2).
(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).
(3) The court may make an order under subsection (2) at any time after the application is made and before it is determined.
(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.
29 Excluding property from certain restraining orders
(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.
(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).
(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, former section 59 or section 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.
(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.
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.
30 Application to exclude property from a restraining order before restraining order has been made
(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.
(2) The person must give written notice to the *responsible authority of both the application and the grounds on which the exclusion is sought.
(3) The *responsible authority may appear and adduce evidence at the hearing of the application.
(4) The *responsible authority must give the person notice of any grounds on which it proposes to contest the application.
31 Application to exclude property from a restraining order after restraining order has been made
(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.
(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.
(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.
(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.
(4) The person must give written notice to the *responsible authority of both the application and the grounds on which the exclusion is sought.
(5) The *responsible authority may appear and adduce evidence at the hearing of the application.
(6) The *responsible authority must give the person 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.
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
33 Notice of a restraining order
(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.
(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).
(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.
(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 authority must give the notice as soon as practicable after the end of that period.
34 Registering restraining orders
(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.
(2) The *registration authority can only do so on the application of the *responsible authority for the *restraining order.
(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.
35 Notifying registration authorities of exclusions from or variations to restraining orders
(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.
(2) The notice must be given within a reasonable time after the order under section 39 is made.
36 Court may set aside a disposition contravening a restraining order
(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.
(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.
(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.
37 Contravening restraining orders
(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.
(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.
(3) Strict liability applies to paragraphs (2)(b) and (c) and subparagraph (2)(d)(i).
Division 5—Further orders
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.
39 Ancillary orders
(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.
(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.
(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.
(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.
(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.
(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.
(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.
(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.
39A Privilege against self incrimination etc. does not apply
(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.
(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.
39B Application to revoke ancillary order
(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).
(2) The application must be made within 14 days after the person was notified of the ancillary order.
(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)).
(4) The effect of the ancillary order is stayed until the court determines the application.
(5) The court may revoke the ancillary order on application under subsection (1) if it considers it appropriate to do so.
(6) The court may have regard to any matter it considers appropriate in determining the application.
(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.
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
41 When a restraining order is in force
A *restraining order is in force from the time at which it is made.
42 Application to revoke a restraining order
(1) A person who was not notified of the application for a *restraining order may apply to the court to revoke the order.
(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.
(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.
(3) However, the *restraining order remains in force until the court revokes the order.
(4) The *responsible authority may adduce additional material to the court relating to the application to revoke the *restraining order.
(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.
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.
44 Giving security etc. to revoke etc. a restraining order
(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.
(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.
45 Cessation of certain restraining orders
Effect on restraining orders of withdrawal of charges, acquittals etc.
(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.
(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.
(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.
(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
(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
(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
(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
(7) To avoid doubt, this section does not apply to a *restraining order made under section 20A.
45A Cessation of restraining orders relating to unexplained wealth
Restraining orders made before application for unexplained wealth order
(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.
(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.
(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
(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.
(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
(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
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
47 Forfeiture orders—conduct constituting serious offences
(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.
(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.
(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
(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.
48 Forfeiture orders—convictions for indictable offences
(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.
(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 *instrument of one or more of the offences.
(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.
49 Forfeiture orders—property suspected of being proceeds of indictable offences etc.
(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
(e) the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an *interest in the property.
(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.
(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
(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.
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.
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.
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.
Division 2—Other relevant matters when a court is considering whether to make forfeiture orders
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.
55 Forfeiture orders can extend to other interests in property
(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.
(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.
(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.
(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.
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.
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.
58 The court may also make supporting directions
(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.
(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
59 Proceeds of crime authority may apply for a forfeiture order
(1) A *proceeds of crime authority may apply for a *forfeiture order.
(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.
60 Additional application for a forfeiture order
(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.
(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.
(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.
61 Notice of application
(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.
(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.
62 Amending an application
(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.
(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.
(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.
(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.
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.
64 Procedure on application
(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.
(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.
(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.
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
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.
67 First exception—registrable property
(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.
(2) Any action by the *responsible authority under paragraph (1)(b) is not a dealing for the purposes of subsection 69(1).
(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.
68 Second exception—if a joint owner dies before the order was made
(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.
(2) Any such *restraining order is also taken to have continued to apply to the property as if the person had not died.
68A Third exception—property located outside Australia
(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.
(2) Any action by the *responsible authority under subparagraph (1)(c)(i) is not a dealing for the purposes of subsection 69(1).
(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.
(4) Subsection (3) does not affect any equitable interest vested in the Commonwealth by paragraph (1)(a).
69 When can the Commonwealth begin dealing with forfeited property?
(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.
(2) However, such disposals and dealings may occur earlier with the leave of the court and in accordance with any directions of the court.
(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
(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.
70 How must the Commonwealth deal with forfeited property?
(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.
(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.
(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.
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
71A Official Trustee may take custody and control of forfeited property
(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.
(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.
(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
72 Relieving certain dependants from hardship
(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.
(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.
(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
73 Making exclusion orders
(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.
(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).
74 Applying for exclusion orders
Before a forfeiture order has been made
(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
(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.
(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.
(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.
75 Giving notice of matters relevant to an application
(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).
(2) The *responsible authority may appear and adduce evidence at the hearing of the application.
(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.
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
77 Making compensation orders
(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.
(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.
78 Application for compensation orders
Before a forfeiture order has been made
(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
(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.
(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.
(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.
79 Giving notice of matters relevant to an application
(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).
(2) The *responsible authority may appear and adduce evidence at the hearing of the application.
(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.
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
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.
81 Discharge of forfeiture order made under section 48 on quashing of conviction
(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.
(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.
82 Notice of application for confirmation of forfeiture order
(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.
(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.
83 Procedure on application for confirmation of forfeiture order
(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.
(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.
84 Court may confirm forfeiture order
(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.
(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.
85 Effect of court’s decision on confirmation of forfeiture order
(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.
(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.
(3) If the court decides not to confirm the *forfeiture order, the order is discharged.
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
87 Giving notice if a forfeiture order is discharged on appeal or by quashing of a conviction
(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.
(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.
(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.
(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.
88 Returning property etc. following the discharge of a forfeiture order
(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.
(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.
(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.
89 Person with interest in forfeited property may buy back the interest
(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.
(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.
90 Buying out other interests in forfeited property
(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.
(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
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
92 Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence
(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.
(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.
(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.
(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.
(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.
(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.
92A Notice of date of forfeiture under this Part, etc.
(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).
(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.
93 Making an extension order extending the period before property is forfeited
(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.
(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.
(3) The extended period ends if the application under section 30, 31 or 94 is finally determined before the end of that period.
(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).
94 Excluding property from forfeiture under this Part
(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
(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.
(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.
(3) The person must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.
(4) The *responsible authority may appear and adduce evidence at the hearing of the application.
(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.
(6) The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.
94A Compensating for proportion of property not derived or realised from commission of any offence
(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.
(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.
(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.
(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.
(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.
(6) The person 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 the application.
(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.
(9) The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.
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
96 When is property forfeited—general rule
Property forfeited under section 92 vests absolutely in the Commonwealth at the time of the forfeiture.
97 First exception—registrable property
(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.
(2) Any action by the *responsible authority under paragraph (1)(b) is not a dealing for the purposes of subsection 99(1).
(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.
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.
98A Third exception—property located outside Australia
(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.
(2) Any action by the *responsible authority under subparagraph (1)(c)(i) is not a dealing for the purposes of subsection 99(1).
(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.
(4) Subsection (3) does not affect any equitable interest vested in the Commonwealth by paragraph (1)(a).
99 When can the Commonwealth begin dealing with forfeited property?
(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.
(2) However, such disposals and dealings may occur earlier with the leave of the court and in accordance with any directions of the court.
(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
(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.
100 How must forfeited property be dealt with?
(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.
(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.
(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 forfeiture will prevent things being done under this section: see section 112.
101 Minister may give supporting directions
(1) The Minister may give all directions that are necessary or convenient to realise the Commonwealth’s *interest in property forfeited under section 92.
(2) This includes, for *registrable property forfeited under section 92, directing an officer of the Department or a *police officer to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.
Division 2A—Controlled property
101A Official Trustee may take custody and control of forfeited property
(1) The *Official Trustee may take custody and control of property forfeited to the Commonwealth under section 92.
Note: Part 4‑1 sets out the Official Trustee’s powers over the property.
(2) If the *Official Trustee decides to take custody and control of property under subsection (1), the court that made the *restraining order referred to in paragraph 92(1)(b) in relation to 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.
(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 property was forfeited under section 92, 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 3—Recovery of forfeited property
102 Court may make orders relating to transfer of forfeited property etc.
If property is forfeited to the Commonwealth under section 92, the court that made the *restraining order referred to in paragraph 92(1)(b) must, if:
(a) a person who claims an *interest in the property applies under section 104 for an order under this section; and
(b) the court is satisfied that:
(i) the applicant had an interest in the property before the forfeiture of the property; and
(ii) the applicant’s interest in the property is neither *proceeds of unlawful activity nor an *instrument of unlawful activity; and
(iii) the applicant’s interest in the property was lawfully acquired;
make an order:
(c) declaring the nature, extent and value of the applicant’s interest in the property; and
(d) either:
(i) if the interest is still vested in the Commonwealth—directing the Commonwealth to transfer the interest to the applicant; or
(ii) directing the Commonwealth to pay to the applicant an amount equal to the value declared under paragraph (c).
103 Court may make orders relating to buying back forfeited property
(1) If property is forfeited to the Commonwealth under section 92, the court that made the *restraining order referred to in paragraph 92(1)(b) may, if:
(a) a person who claims to have had an *interest in the property before the forfeiture has made an application under section 104A for an order under this section; and
(b) the court is satisfied that the person had the interest immediately before the forfeiture; and
(c) the court is satisfied that the person is not a *suspect in relation to the restraining order; and
(d) the court is satisfied that, at the time when the offence mentioned in paragraph 92(1)(a) was committed, the person did not have knowledge of the conduct constituting the offence; and
(e) 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
(f) the court is satisfied that, if the interest were to be transferred to the person under section 105:
(i) the amount paid to the Commonwealth under paragraph 105(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 105(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
(g) 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;
make an order:
(h) declaring the nature, extent and value (as at the time when the order is made under this subsection) of the interest; and
(i) declaring that the forfeiture ceases to operate in relation to the interest if payment is made under section 105.
Note: Money can be property.
(2) For the purposes of this section, it is immaterial whether the loan mentioned in subparagraph (1)(f)(ii) was made under an arrangement entered into before or after the application mentioned in paragraph (1)(a) 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.
104 Applying for an order under section 102
(1) A person who claims an *interest in property that has been forfeited to the Commonwealth under section 92 may, at any time after the forfeiture, apply to the court that made the *restraining order referred to in paragraph 92(1)(b) for an order under section 102.
(2) However, unless the court gives leave, the person cannot make an application for an order under section 102 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) either:
(i) did not make an application under section 29 or 94 in relation to the property; or
(ii) made such an application and appeared at the hearing of the application.
(3) The court may give the person leave to apply if the court is satisfied that:
(a) if subparagraph (2)(b)(i) applies—the person had a good reason for not making an application under section 29 or 94; or
(b) if subparagraph (2)(b)(ii) applies—the person now has evidence relevant to the person’s application under this section that was not available at the time of the hearing; or
(c) in either case—there are other special grounds for granting the leave.
(4) The applicant must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.
(5) The *responsible authority may appear and adduce evidence at the hearing of the application.
(6) 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.
(7) The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.
104A Applying for an order under section 103
(1) 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 section 103 at any time.
(2) However, if the property has already been forfeited under section 92, the person cannot, unless the court gives leave, apply under subsection (1) of this section if the person:
(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 (1) of this section before that forfeiture.
(3) 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 that forfeiture; or
(b) the person now has evidence relevant to the application that was not available before that forfeiture; or
(c) there are special grounds for granting the leave.
(4) However, the court must not hear an application under subsection (1) if:
(a) the *Official Trustee has taken any action in relation to the property under section 100; and
(b) it would not be practicable for the court to make an order in relation to the interest under section 103.
(5) The person must give written notice to the *responsible authority of both the application and the grounds on which the order is sought.
(6) The *responsible authority may appear and adduce evidence at the hearing of the application.
(7) To avoid doubt, the *responsible authority may represent the Commonwealth in proceedings relating to an application under subsection (1).
(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.
(9) The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.
105 Person with interest in forfeited property may buy back the interest
(1) If:
(a) property is forfeited to the Commonwealth under section 92; and
(b) a court makes an order under section 103 in respect of an *interest in the property; and
(c) the amount specified in the order as the value of the interest is paid to the Commonwealth, while the interest is still vested in the Commonwealth;
section 92 ceases to apply in relation to the interest, and the *Official Trustee:
(d) 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
(e) may, on behalf of the Commonwealth, do or authorise the doing of anything necessary or convenient to effect the transfer.
(2) Without limiting paragraph (1)(e), things that may be done or authorised under that paragraph include:
(a) executing any instrument; and
(b) applying for registration of an *interest in the property on any appropriate register.
106 Buying out other interests in forfeited property
(1) If:
(a) property is forfeited to the Commonwealth under section 92; and
(b) an interest in the property is required to be transferred to a person (the relevant person) under section 105, or under a direction under subparagraph 102(d)(i); 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 the 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.
(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.
Division 4—The effect on forfeiture of convictions being quashed
107 The effect on forfeiture of convictions being quashed
(1) A forfeiture of property to the Commonwealth under section 92 in relation to a person’s conviction of an offence ceases to have effect if:
(a) the person’s conviction of the offence is subsequently *quashed; and
(b) the forfeiture does not also relate to the person’s conviction of other offences that have not been quashed; and
(c) the *responsible authority does not, within 14 days after the conviction is quashed, apply to the court that made the *restraining order referred to in paragraph 92(1)(b) for the forfeiture to be confirmed.
(2) However, unless and until a court decides otherwise on such an application, the *quashing of the conviction does not affect the forfeiture:
(a) for 14 days after the conviction is quashed; and
(b) if the *responsible authority makes such an application.
108 Notice of application for confirmation of forfeiture
(1) The *responsible authority must give written notice of an application for confirmation of the forfeiture 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 forfeiture; 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, it can also apply for an examination order under Part 3‑1.
(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.
109 Procedure on application for confirmation of forfeiture
(1) Any person who claims an *interest in property covered by the forfeiture may appear and adduce evidence at the hearing of the application for confirmation of the forfeiture.
(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.
110 Court may confirm forfeiture
(1) The court may confirm the forfeiture if the court is satisfied that:
(a) it could make a *forfeiture order under section 47 in relation to the offence in relation to which the person’s conviction was *quashed if the *responsible authority for the *restraining order referred to in paragraph 92(1)(b) were to apply for an order under that section; or
(b) it could make a forfeiture order under section 49 in relation to the offence in relation to which the person’s conviction was quashed if the authority were to apply for an order under that section.
(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.
111 Effect of court’s decision on confirmation of forfeiture
(1) If the court confirms the forfeiture under paragraph 110(1)(a), the forfeiture is taken not to be affected by the *quashing of the person’s conviction of the offence.
(2) If the court confirms the forfeiture under paragraph 110(1)(b):
(a) to the extent that the property covered by the forfeiture is:
(i) in any case—*proceeds of the offence; or
(ii) if the offence is a *serious offence—an *instrument of the offence;
the forfeiture is taken not to be affected by the *quashing of the person’s conviction of the offence; but
(b) to the extent that the property covered by the forfeiture 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 forfeiture ceases to have effect.
(3) If the court decides not to confirm the forfeiture, the forfeiture ceases to have effect.
112 Official Trustee must not deal with forfeited property before the court decides on confirmation of forfeiture
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;
the *Official Trustee must not do any of the things required under section 100 in relation to property covered by the forfeiture or amounts received from disposing of such property.
113 Giving notice if forfeiture ceases to have effect on quashing of a conviction
(1) This section applies in relation to particular property if:
(a) the property was forfeited to the Commonwealth under section 92 but the forfeiture ceases to have effect under section 107 or subsection 111(3); or
(b) the property was forfeited to the Commonwealth under section 92 but the forfeiture ceases to have effect in relation to that property under subsection 111(2).
(2) The *responsible authority for the *restraining order referred to in paragraph 92(1)(b) must, as soon as practicable after the forfeiture ceases to have effect, give written notice of the cessation to any person the authority reasonably believes may have had an *interest in that property immediately before the forfeiture.
(3) The *responsible authority must, if required by a court, give or publish notice of the cessation 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.
(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 114 for the transfer of the interest, or its value, to the person.
114 Returning property etc. following forfeiture ceasing to have effect
(1) The *Official Trustee must arrange for:
(a) if property forfeited to the Commonwealth under section 92 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 forfeiture; or
(b) if property forfeited to the Commonwealth under section 92 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 has ceased to have effect under section 107 or 111; 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 at that time.
(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.
(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.
Part 2‑4—Pecuniary penalty orders
115 Simplified outline of this Part
If certain offences have been committed, pecuniary penalty orders can be made, ordering payments to the Commonwealth of amounts based on:
(a) the benefits that a person has derived from such an offence; and
(b) (in some cases) the benefits that the person has derived from other unlawful activity.
(It is not always a requirement that a person has been convicted of the offence.)
Division 1—Making pecuniary penalty orders
116 Making pecuniary penalty orders
(1) A court with *proceeds jurisdiction must make an order requiring a person to pay an amount to the Commonwealth if:
(a) a *proceeds of crime authority applies for the order; and
(b) the court is satisfied of either or both of the following:
(i) the person has been convicted of an *indictable offence, and has derived *benefits from the commission of the offence;
(ii) the person has committed a *serious offence.
Note: The conviction for, or reasonable grounds for suspecting commission of, an indictable offence could be used as grounds for a restraining order under Part 2‑1 covering all or some of the person’s property.
(3) In determining whether a person has derived a *benefit, the court may treat as property of the person any property that, in the court’s opinion, is subject to the person’s *effective control.
(4) The court’s power to make a *pecuniary penalty 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 applications pecuniary penalty orders if previous applications for pecuniary penalty orders have already been made: see section 135.
117 Pecuniary penalty orders made in relation to serious offence convictions
(1) A court must not make a *pecuniary penalty order in relation to a person’s conviction of a *serious offence until after the end of the period of 6 months commencing on the *conviction day.
(2) However, if the court before which the person was convicted has *proceeds jurisdiction, the court may make a *pecuniary penalty order in relation to the person’s conviction when it passes sentence on the person.
Note: Pecuniary penalty orders made under this subsection cannot be enforced within 6 months: see subsection 140(3).
(3) Subsection (1) does not apply if the person is taken to have been convicted of the *serious offence because of paragraph 331(1)(d).
118 Making of pecuniary penalty 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 *pecuniary penalty order in relation 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.
119 Ancillary orders
The court that made a *pecuniary penalty order, or any other court that could have made the pecuniary penalty order, may make orders ancillary to the pecuniary penalty order, either when it makes the pecuniary penalty order or at a later time.
120 Acquittals do not affect pecuniary penalty orders
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 *pecuniary penalty order in relation to the offence.
Division 2—Penalty amounts
Subdivision A—General
121 Determining penalty amounts
(1) The amount that a person is ordered to pay to the Commonwealth under a *pecuniary penalty order (the penalty amount) is the amount the court determines under this Division.
(2) If the offence to which the order relates is not a *serious offence, the *penalty amount is determined by:
(a) assessing under Subdivision B the value of the *benefits the person derived from the commission of the offence; and
(b) subtracting from that value the sum of all the reductions (if any) in the penalty amount under Subdivision C.
(3) If the offence to which the order relates is a *serious offence, the *penalty amount is determined by:
(a) assessing under Subdivision B the value of the *benefits the person derived from:
(i) the commission of that offence; and
(ii) subject to subsection (4), the commission of any other offence that constitutes *unlawful activity; and
(b) subtracting from that value the sum of all the reductions (if any) in the penalty amount under Subdivision C.
Note: Pecuniary penalty orders can be varied under Subdivision D to increase penalty amounts in some cases.
(4) Subparagraph (3)(a)(ii) does not apply in relation to an offence that is not a *terrorism offence unless the offence was committed:
(a) within:
(i) if some or all of the person’s property, or property suspected of being subject to the *effective control of the person, is covered by a *restraining order—the period of 6 years preceding the application for the restraining order; or
(ii) otherwise—the period of 6 years preceding the application for the *pecuniary penalty order; or
(b) during the period since that application for the restraining order or the pecuniary penalty order was made
Subdivision B—The value of benefits derived from the commission of an offence
122 Evidence the court is to consider
(1) In assessing the value of *benefits that a person has derived from the commission of an offence or offences (the illegal activity), the court is to have regard to the evidence before it concerning all or any of the following:
(a) the money, or the value of the property other than money, that, because of the illegal activity, came into the possession or under the control of the person or another person;
(b) the value of any other benefit that, because of the illegal activity, was provided to the person or another person;
(c) if any of the illegal activity consisted of doing an act or thing in relation to a *narcotic substance:
(i) the market value, at the time of the offence, of similar or substantially similar narcotic substances; and
(ii) the amount that was, or the range of amounts that were, ordinarily paid for the doing of a similar or substantially similar act or thing;
(d) the value of the *person’s property before, during and after the illegal activity;
(e) the person’s income and expenditure before, during and after the illegal activity.
(2) At the hearing of an application for a *pecuniary penalty order, a *police officer, or a *Customs officer, who is experienced in the investigation of narcotics offences may testify, to the best of the officer’s information, knowledge and belief:
(a) with respect to the amount that was the market value of a *narcotic substance at a particular time or during a particular period; or
(b) with respect to the amount, or the range of amounts, ordinarily paid at a particular time, or during a particular period, for the doing of an act or thing in relation to a narcotic substance.
(3) The officer’s testimony under subsection (2):
(a) is admissible at the hearing despite any rule of law or practice relating to hearsay evidence; and
(b) is prima facie evidence of the matters testified.
123 Value of benefits derived—non‑serious offences
(1) If:
(a) an application is made for a *pecuniary penalty order against a person in relation to an offence or offences (the illegal activity); and
(b) the offence is not a *serious offence, or none of the offences are serious offences; and
(c) at the hearing of the application, evidence is given that the value of the *person’s property during or after the illegal activity exceeded the value of the person’s property before the illegal activity;
the court is to treat the value of the *benefits derived by the person from the commission of the illegal activity as being not less than the amount of the greatest excess.
(2) The amount treated as the value of the *benefits under this section is reduced to the extent (if any) that the court is satisfied that the excess was due to causes unrelated to the illegal activity.
124 Value of benefits derived—serious offences
(1) If:
(a) an application is made for a *pecuniary penalty order against a person in relation to an offence or offences (the illegal activity); and
(b) the offence is a *serious offence, or one or more of the offences are serious offences; and
(c) at the hearing of the application, evidence is given that the value of the *person’s property during or after:
(i) the illegal activity; or
(ii) any other *unlawful activity that the person has engaged in that constitutes a *terrorism offence; or
(iii) any other unlawful activity that the person has engaged in, within the period referred to in subsection (5), that does not constitute a terrorism offence;
exceeded the value of the person’s property before the illegal activity and the other unlawful activity;
the court is to treat the value of the *benefits derived by the person from the commission of the illegal activity as being not less than the amount of the greatest excess.
(2) The amount treated as the value of the *benefits under subsection (1) is reduced to the extent (if any) that the court is satisfied that the excess was due to causes unrelated to:
(a) the illegal activity; or
(b) any other *unlawful activity that the person has engaged in that constitutes a *terrorism offence; or
(c) any other unlawful activity that the person has engaged in, within the period referred to in subsection (5), that does not constitute a terrorism offence;
(3) If evidence is given, at the hearing of the application, of the person’s expenditure during the period referred to in subsection (5), the amount of the expenditure is presumed, unless the contrary is proved, to be the value of a *benefit that, because of the illegal activity, was provided to the person.
(4) Subsection (3) does not apply to expenditure to the extent that it resulted in acquisition of property that is taken into account under subsection (1).
(5) The period for the purposes of subparagraph (1)(c)(iii), paragraph (2)(c) and subsection (3) is:
(a) if some or all of the person’s property, or property that is suspected of being subject to the *effective control of the person, is covered by a *restraining order—the period of 6 years preceding the application for the restraining order;
(b) otherwise—the period of 6 years preceding the application for the *pecuniary penalty order;
and includes the period since that application for the restraining order or the pecuniary penalty order was made.
125 Value of benefits may be as at time of assessment
(1) In quantifying the value of a *benefit for the purposes of this Subdivision, the court may treat as the value of the benefit the value that the benefit would have had if derived at the time the court makes its assessment of the value of benefits.
(2) Without limiting subsection (1), the court may have regard to any decline in the purchasing power of money between the time when the *benefit was derived and the time the court makes its assessment.
126 Matters that do not reduce the value of benefits
In assessing the value of *benefits that a person has derived from the commission of an offence or offences (the illegal activity), none of the following are to be subtracted:
(a) expenses or outgoings the person incurred in relation to the illegal activity;
(b) the value of any benefits that the person derives as *agent for, or otherwise on behalf of, another person (whether or not the other person receives any of the benefits).
127 Benefits already the subject of pecuniary penalty
(1) A *benefit is not to be taken into account for the purposes of this Subdivision if a pecuniary penalty has been imposed in respect of the benefit under:
(a) this Act; or
(b) Division 3 of Part XIII of the Customs Act 1901; or
(c) a law of a Territory; or
(d) a law of a State.
(2) To avoid doubt, an amount payable under a *literary proceeds order is a pecuniary penalty for the purposes of this section.
128 Property under a person’s effective control
In assessing the value of *benefits that a person has derived, the court may treat as property of the person any property that, in the court’s opinion, is subject to the person’s *effective control.
129 Effect of property vesting in an insolvency trustee
In assessing the value of *benefits that a person has derived, the *person’s property is taken to continue to be the person’s property if it vests in any of the following:
(a) in relation to a bankruptcy—the trustee of the estate of the bankrupt; or
(b) in relation to a composition or scheme of arrangement under Division 6 of Part IV of the Bankruptcy Act 1966—the trustee of the composition or scheme of arrangement; or
(c) in relation to a personal insolvency agreement under Part X of the Bankruptcy Act 1966—the trustee of the agreement; or
(d) in relation to the estate of a deceased person in respect of which an order has been made under Part XI of the Bankruptcy Act 1966—the trustee of the estate.
Subdivision C—Reducing penalty amounts
130 Reducing penalty amounts to take account of forfeiture and proposed forfeiture
The *penalty amount under a *pecuniary penalty order against a person is reduced by an amount equal to the value, as at the time of the making of the order, of any property that is *proceeds of the *unlawful activity to which the order relates if:
(a) the property has been forfeited, under this Act or another law of the Commonwealth or under a law of a *non‑governing Territory, in relation to the unlawful activity to which the order relates; or
(b) an application has been made for a *forfeiture order that would cover the property.
131 Reducing penalty amounts to take account of tax paid
Tax paid before application for order is made
(1) The court must reduce the *penalty amount under a *pecuniary penalty order against a person by an amount that, in the court’s opinion, represents the extent to which tax that the person has paid before the application for the order is made is attributable to the *benefits to which the order relates.
Tax paid after application for order is made
(1A) The court may, if it considers that it is in the interests of justice to do so, reduce the *penalty amount under a *pecuniary penalty order against a person by an amount that, in the court’s opinion, represents the extent to which tax that the person has paid at or after the time the application for the order is made is attributable to the *benefits to which the order relates.
Tax covered by this section
(2) Tax covered by this section may be tax payable under a law of the Commonwealth, a State, a Territory or a foreign country.
132 Reducing penalty amounts to take account of fines etc.
The court may, if it considers it appropriate to do so, reduce the *penalty amount under a *pecuniary penalty order against a person by an amount equal to the amount payable by the person by way of fine, restitution, compensation or damages in relation to an offence to which the order relates.
Subdivision D—Varying pecuniary penalty orders to increase penalty amounts
133 Varying pecuniary penalty orders to increase penalty amounts
(1) The court may, on the application of the *responsible authority, vary a *pecuniary penalty order against a person by increasing the *penalty amount if one or more of subsections (2), (2A) or (3) apply. The amount of each increase is as specified in the relevant subsection.
(2) The *penalty amount may be increased if:
(a) the penalty amount was reduced under section 130 to take account of a forfeiture of property or a proposed *forfeiture order against property; and
(b) an appeal against the forfeiture or forfeiture order is allowed, or the proceedings for the proposed forfeiture order terminate without the proposed forfeiture order being made.
The amount of the increase is equal to the value of the property.
(2A) The *penalty amount may be increased if:
(a) the penalty amount was reduced under section 130 to take account of a forfeiture of property or a proposed *forfeiture order against property; and
(b) one of the following orders has been made:
(i) an order under section 73 or 94 excluding an *interest in the property from forfeiture;
(ii) an order under section 77 or 94A (which deal with compensation) directing the Commonwealth to pay an amount to a person in relation to a proportion of an interest in the property that was not derived or realised from the commission of any offence;
(iii) an order under section 102 (which deals with the recovery of property) in relation to an interest in the property.
The amount of the increase is such amount as the court considers appropriate.
(2B) In determining the amount of the increase for the purposes of subsection (2A), the court may have regard to:
(a) if subparagraph (2A)(b)(i) or (iii) applies—the value of the interest, as at the time the order was made; and
(b) if subparagraph (2A)(b)(ii) applies—the amount that the Commonwealth was required to pay; and
(c) any other matter the court considers relevant.
(3) The *penalty amount may be increased if:
(a) the penalty amount was reduced under section 131 to take account of an amount of tax the person paid; and
(b) an amount is repaid or refunded to the person in respect of that tax.
The amount of the increase is equal to the amount repaid or refunded.
(4) The *responsible authority’s application may deal with more than one increase to the same *penalty amount.
Division 3—How pecuniary penalty orders are obtained
134 Proceeds of crime authority may apply for a pecuniary penalty order
(1) A *proceeds of crime authority may apply for a *pecuniary penalty order.
(2) If the application relates to a person’s conviction of a *serious offence, the application must be made before:
(a) the end of the period of 9 months after the *conviction day; or
(b) if an *extension order is in force at the end of that period—the end of the period of 3 months after the end of the extended period relating to that extension order.
(3) If the application relates to a person’s conviction of an *indictable offence that is not a *serious offence, the application must be made before the end of the period of 6 months after the *conviction day.
(4) An application may be made in relation to one or more offences.
(5) An application may be made for a *pecuniary penalty order in relation to an offence even if:
(a) a *forfeiture order in relation to the offence, or an application for such a forfeiture order, has been made; or
(b) Part 2‑3 (forfeiture on conviction of a serious offence) applies to the offence.
(6) Despite subsections (2) and (3), the court hearing the application may give leave for the application to be made after the time before which an application would otherwise need to be made under those subsections if it is satisfied that it would be in the interests of justice to allow the application.
135 Additional application for a pecuniary penalty order
(1) A *proceeds of crime authority cannot, unless the court gives leave, apply for a *pecuniary penalty order against a person in respect of *benefits the person derived from the commission of an offence if:
(a) an application has previously been made:
(i) under this Division; or
(ii) under another law of the Commonwealth; or
(iii) under a law of a *non‑governing Territory;
for a pecuniary penalty in respect of those benefits the person derived from the commission of the offence; and
(b) the application has been finally determined on the merits.
(2) The court must not give leave unless it is satisfied that:
(a) the *benefit 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 give the leave.
(3) An application for a *literary proceeds order is not, for the purposes of this section, an application for a pecuniary penalty.
136 Notice of application
(1) The *responsible authority must give written notice of the application to a person who would be subject to the *pecuniary penalty order if it were made.
(2) The *responsible authority must include a copy of the application with the notice.
(3) The *responsible authority must give a copy of any affidavit supporting the application to a person who would be subject to the *pecuniary penalty order (if it were made) within a reasonable time before the hearing of the application.
137 Amendment of application
(1) The court hearing the application may amend the application:
(a) on application by the *responsible authority; or
(b) with the consent of the authority.
(2) However, the court must not amend the application so as to include an additional *benefit in the application unless the court is satisfied that:
(a) the benefit was not reasonably capable of identification when the application was originally made; or
(b) necessary evidence became available only after the application was originally made.
(3) On applying for an amendment to include an additional *benefit in the application, the *responsible authority must give to the person against whom the *pecuniary penalty order would be made a written notice of the application to amend.
138 Procedure on application
(1) The person who would be subject to the *pecuniary penalty order if it were made may appear and adduce evidence at the hearing of the application.
(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.
139 Applications to courts before which persons are convicted
If an application for a *pecuniary penalty 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—Enforcement of pecuniary penalty orders
140 Enforcement of pecuniary penalty orders
(1) An amount payable by a person to the Commonwealth under a *pecuniary penalty order is a civil debt due by the person to the Commonwealth.
(2) A *pecuniary penalty order against a person may be enforced as if it were an order made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.
(3) However, if the order was made under subsection 117(2) when sentence was being passed on the person for the offence to which the order relates, the order cannot be enforced against the person within the period of 6 months after the order was made.
(4) The debt arising from the order is taken to be a judgment debt.
(5) If a *pecuniary penalty order is made against a person after the person’s death, this section has effect as if the person had died on the day after the order was made.
141 Property subject to a person’s effective control
(1) If:
(a) a person is subject to a *pecuniary penalty order; and
(b) the *responsible authority applies to the court for an order under this section; and
(c) the court is satisfied that particular property is subject to the *effective control of the person;
the court may make an order declaring that the whole, or a specified part, of that property is available to satisfy the pecuniary penalty order.
(2) The order under subsection (1) may be enforced against the property as if the property were the *person’s property.
(3) A *restraining order may be made in respect of the property as if:
(a) the property were the *person’s property; and
(b) the person had committed a *serious offence.
(4) If the *responsible authority applies for an order under subsection (1) relating to particular property, the authority must give written notice of the application to:
(a) the person who is subject to the *pecuniary penalty order; and
(b) any person whom the authority has reason to believe may have an *interest in the property.
(5) The person who is subject to the *pecuniary penalty order, and any person who claims an *interest in the property, may appear and adduce evidence at the hearing of the application.
142 Charge on property subject to restraining order
(1) If:
(a) a *pecuniary penalty order is made against a person in relation to an *indictable offence; and
(b) a *restraining order is, or has been, made against:
(i) the *person’s property; or
(ii) another person’s property in relation to which an order under subsection 141(1) is, or has been, made; and
(c) the restraining order relates to that offence or a *related offence;
then, upon the making of the later of the orders, there is created, by force of this section, a charge on the property to secure the payment to the Commonwealth of the *penalty amount.
(2) The charge ceases to have effect in respect of the property:
(a) if the *pecuniary penalty order was made in relation to the person’s conviction of the *indictable offence and that conviction is *quashed—upon the order being discharged under Division 5; or
(b) upon the discharge of the pecuniary penalty order or the *restraining order by a court hearing an appeal against the making of the order; or
(c) upon payment to the Commonwealth of the *penalty amount in satisfaction of the pecuniary penalty order; or
(d) upon the sale or other disposition of the property:
(i) under an order under Division 4 of Part 4‑1; or
(ii) by the owner of the property with the consent of the court that made the pecuniary penalty order; or
(iii) if the restraining order directed the *Official Trustee to take custody and control of the property—by the owner of the property with the consent of the Official Trustee; or
(e) upon the sale of the property to a purchaser in good faith for value who, at the time of purchase, has no notice of the charge;
whichever first occurs.
(3) The charge:
(a) is subject to every *encumbrance on the property (other than an encumbrance in which the person referred to paragraph (1)(a) has an *interest) that came into existence before the charge and that would, apart from this subsection, have priority over the charge; and
(b) has priority over all other encumbrances; and
(c) subject to subsection (2), is not affected by any change of ownership of the property.
(4) Subsection 73(2) of the Personal Property Securities Act 2009 applies to the charge (to the extent, if any, to which that Act applies in relation to the property charged).
Note 1: The effect of this subsection is that the priority between the charge and a security interest in the property to which the Personal Property Securities Act 2009 applies is to be determined in accordance with this Act rather than the Personal Property Securities Act 2009.
Note 2: Subsection 73(2) of the Personal Property Securities Act 2009 applies to charges created by this section after the commencement of subsection (4) (which is at the registration commencement time within the meaning of the Personal Property Securities Act 2009).
143 Charges may be registered
(1) If:
(a) a charge is created by section 142 on property of a particular kind; and
(b) the provisions of any law of the Commonwealth or of a State or Territory provide for the registration of title to, or charges over, property of that kind;
the *Official Trustee or the *responsible authority for the *pecuniary penalty order or *restraining order referred to in that section may cause the charge so created to be registered under the provisions of that law.
(2) A person who purchases or otherwise acquires an *interest in the property after the registration of the charge is, for the purposes of paragraph 142(2)(e), taken to have notice of the charge at the time of the purchase or acquisition.
(3) In this section:
registration of a charge on a particular kind of personal property within the meaning of the Personal Property Securities Act 2009 includes the registration of data in relation to that kind of property for the purposes of paragraph 148(c) of that Act.
Note: The Personal Property Securities Act 2009 provides for the registration of such data only if regulations are made for the purposes of paragraph 148(c) of that Act.
144 Penalty amounts exceeding the court’s jurisdiction
(1) If:
(a) a court makes a *pecuniary penalty order of a particular amount; and
(b) the court does not have jurisdiction with respect to the recovery of debts of an amount equal to that amount;
the registrar of the court must issue a certificate containing the particulars specified in the regulations.
(2) The certificate may be registered, in accordance with the regulations, in a court having jurisdiction with respect to the recovery of debts of an amount equal to the amount of the relevant order.
(3) Upon registration in a court, the certificate is enforceable in all respects as a final judgment of the court in favour of the Commonwealth.
Division 5—The effect on pecuniary penalty orders of convictions being quashed
145 Pecuniary penalty order unaffected if not made in relation to a conviction
A *pecuniary penalty order made in relation to an offence but not made in relation to a person’s conviction of the offence is not affected if the person is convicted of the offence and the conviction is subsequently *quashed.
146 Discharge of pecuniary penalty order if made in relation to a conviction
(1) Subject to subsections (2) and (3), a *pecuniary penalty order made in relation to a person’s conviction of an offence is discharged if:
(a) the person’s conviction of any of the offences to which the order relates is subsequently *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 or varied.
(2) Unless and until a court decides otherwise on such an application, the *quashing of the conviction does not affect the *pecuniary penalty order:
(a) for 14 days after the conviction is quashed; and
(b) if the *responsible authority makes such an application.
(2A) To avoid doubt, the *responsible authority may make an application to confirm the order and an application to vary the order, and the court may hear both applications at the same time.
(3) A *pecuniary penalty order made in relation to a person’s conviction of an offence is discharged if:
(a) the person’s conviction of the offence is subsequently *quashed; and
(b) the order does not relate to any other offence; and
(c) the offence is not a *serious offence.
147 Notice of application for confirmation or variation of pecuniary penalty order
The *responsible authority must give to the person written notice of an application for confirmation or variation of the *pecuniary penalty order.
Note: If the authority applies for confirmation or variation of a pecuniary penalty order, it can also apply for an examination order under Part 3‑1.
148 Procedure on application for confirmation or variation of pecuniary penalty order
(1) The person may appear and adduce evidence at the hearing of the application for confirmation or variation of the order.
(2) The court may, in determining the application, have regard to:
(a) the transcript of any proceeding against the person for:
(i) any of the offences to which the order relates of which the person was convicted; or
(ii) if the person was taken to be convicted of any of those offences because of paragraph 331(1)(c)—the other offence referred to in that paragraph;
including any appeals relating to such a conviction; and
(b) the evidence given in any such proceeding.
149 Court may confirm pecuniary penalty order
The court may confirm the *pecuniary penalty order if the court is satisfied that, when the *responsible authority applied for the order, the court could have made the order without relying on the person’s conviction that was *quashed.
149A Court may vary pecuniary penalty order
(1) The court may vary the *pecuniary penalty order by reducing the *penalty amount by an amount worked out under subsection (2) if the court is satisfied that:
(a) the order relates to more than one offence; and
(b) when the *responsible authority applied for the order, the court could have made the order in relation to at least one of the offences that has not been *quashed.
(2) The amount is an amount equal to so much of the *penalty amount as the court reasonably believes to be attributable to a person’s conviction of an offence:
(a) to which the *pecuniary penalty order relates; and
(b) that was *quashed.
(3) In determining the amount by which the *penalty amount should be reduced under subsection (2), the court may have regard to:
(a) the transcripts and evidence referred to in subsection 148(2); and
(b) the transcript of, and the evidence given in, any proceedings relating to the application for the *pecuniary penalty order or any application to vary the order; and
(c) any other matter that the court considers relevant.
150 Effect of court’s decision on confirmation or variation of pecuniary penalty order
(1) If the court confirms the *pecuniary penalty order under section 149, or varies the order under section 149A, the order is taken not to be affected by the *quashing of the person’s conviction of the offence.
(2) If the court decides not to confirm or vary the *pecuniary penalty order, the order is discharged.
Part 2‑5—Literary proceeds orders
151 Simplified outline of this Part
If certain offences have been committed, literary proceeds orders can be made, ordering payments to the Commonwealth of amounts based on the literary proceeds that a person has derived in relation to such an offence. (There is no requirement that a person has been convicted of the offence.)
Division 1—Making literary proceeds orders
152 Making literary proceeds orders
(1) A court with *proceeds jurisdiction may make an order requiring a person to pay an amount to the Commonwealth if:
(a) a *proceeds of crime authority applies for the order; and
(b) the court is satisfied that the person has committed an *indictable offence (whether or not the person has been convicted of the offence); and
(c) the court is satisfied that the person has derived *literary proceeds in relation to the offence.
(2) A court with *proceeds jurisdiction may make an order requiring a person to pay an amount to the Commonwealth if:
(a) a *proceeds of crime authority applies for the order; and
(b) the court is satisfied that the person has committed a *foreign indictable offence (whether or not the person has been convicted of the offence); and
(c) the court is satisfied that the person has derived *literary proceeds in relation to the offence.
(3) However, the *literary proceeds must have been derived after the commencement of this Act.
Note: Because of section 14, it does not matter whether the offence to which the order relates was committed before or after the commencement of this Act.
(4) The court’s power to make a *literary proceeds order in relation to an offence is not affected by the existence of another *confiscation order in relation to that offence.
153 Meaning of literary proceeds
(1) Literary proceeds are any *benefit that a person derives from the commercial exploitation of:
(a) the person’s notoriety resulting, directly or indirectly, from the person committing an *indictable offence or a *foreign indictable offence; or
(b) the notoriety of another person, involved in the commission of that offence, resulting from the first‑mentioned person committing that offence.
(2) The commercial exploitation may be by any means, including:
(a) publishing any material in written or electronic form; or
(b) any use of media from which visual images, words or sounds can be produced; or
(c) any live entertainment, representation or interview.
(3) If the offence is an *indictable offence, it does not matter whether the *benefits are derived within or outside *Australia.
(3A) If the offence is a *foreign indictable offence, then a *benefit is not treated as *literary proceeds unless the benefit is derived in *Australia or transferred to Australia.
(4) In determining:
(a) whether a person has derived *literary proceeds; or
(b) the value of literary proceeds that a person has derived;
the court may treat as property of the person any property that, in the court’s opinion:
(c) is subject to the person’s *effective control; or
(d) was not received by the person, but was transferred to, or(in the case of money) paid to, another person at the person’s direction.
154 Matters taken into account in deciding whether to make literary proceeds orders
In deciding whether to make a *literary proceeds order, the court:
(a) must take into account:
(i) the nature and purpose of the product or activity from which the *literary proceeds were derived; and
(ii) whether supplying the product or carrying out the activity was in the public interest; and
(iii) the social, cultural or educational value of the product or activity; and
(iv) the seriousness of the offence to which the product or activity relates; and
(v) how long ago the offence was committed; and
(b) may take into account such other matters as it thinks fit.
155 Additional literary proceeds orders
More than one *literary proceeds order may be made against a person in relation to the same offence.
156 Ancillary orders
The court that made a *literary proceeds order, or any other court that could have made the literary proceeds order, may make orders ancillary to the literary proceeds order, either when it makes the literary proceeds order or at a later time.
157 Acquittals do not affect literary proceeds orders
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 *literary proceeds order in relation to the offence.
Division 2—Literary proceeds amounts
158 Determining literary proceeds amounts
(1) The amount that a person is ordered to pay to the Commonwealth under a *literary proceeds order (the literary proceeds amount) is the amount that the court thinks appropriate.
(2) However, the amount:
(a) must not exceed the amount of the *literary proceeds relating to the offence to which the order relates, less any deductions arising under section 159; and
(b) may be further reduced under section 160.
(3) In determining the *literary proceeds amount, the court is to have regard to such matters as it thinks fit, including any of the following:
(a) the amount of the *literary proceeds relating to the offence;
(b) if the person stood trial for the offence—the evidence adduced in the proceedings for the offence;
(c) if the person was convicted of the offence—the transcript of the sentencing proceedings.
159 Deductions from literary proceeds amounts
In determining the *literary proceeds amount under a *literary proceeds order against a person, the court must deduct the following:
(a) any expenses and outgoings that the person incurred in deriving the *literary proceeds;
(b) the value of any property of the person forfeited under:
(i) a *forfeiture order; or
(ii) an *interstate forfeiture order; or
(iii) a *foreign forfeiture order;
relating to the offence to which the literary proceeds order relates, to the extent that the property is literary proceeds;
(c) any amount payable by the person under:
(i) a *pecuniary penalty order; or
(ii) an order under section 243B of the Customs Act 1901; or
(iii) an *interstate pecuniary penalty order; or
(iv) a *foreign pecuniary penalty order;
relating to the offence to which the literary proceeds order relates, to the extent that the amount is literary proceeds;
(d) the amount of any previous literary proceeds order made against the person in relation to the same exploitation of the person’s notoriety resulting from the person committing the offence in question.
160 Reducing literary proceeds amounts to take account of tax paid
(1) The court may reduce the *literary proceeds amount under a *literary proceeds order against a person by an amount that, in the court’s opinion, represents the extent to which tax that the person has paid is attributable to the *literary proceeds to which the order relates.
(2) The tax may be tax payable under a law of the Commonwealth, a State, a Territory or a foreign country.
161 Varying literary proceeds orders to increase literary proceeds amounts
(1) The court may, on the application of the *responsible authority, vary a *literary proceeds order against a person by increasing the *literary proceeds amount if one or more of subsections (2), (3) and (4) apply. The amount of each increase is as specified in the relevant subsection.
(2) The *literary proceeds amount may be increased if:
(a) the value of property of the person forfeited under a *forfeiture order, an *interstate forfeiture order or a *foreign forfeiture order was deducted from the literary proceeds amount under paragraph 159(b); and
(b) an appeal against the forfeiture, or against the order, is allowed.
The amount of the increase is equal to the value of the property.
(3) The *literary proceeds amount may be increased if:
(a) an amount payable under a *pecuniary penalty order, an order under section 243B of the Customs Act 1901, an *interstate pecuniary penalty order or a *foreign pecuniary penalty order was deducted from the *literary proceeds amount under paragraph 159(c); and
(b) an appeal against the amount payable, or against the order, is allowed.
The amount of the increase is equal to the amount that was payable.
(4) The *literary proceeds amount may be increased if:
(a) in determining a *literary proceeds amount, the court took into account, under section 160, an amount of tax paid by the person who is the subject of the order; and
(b) an amount is repaid or refunded to the person in respect of that tax.
The amount of the increase is equal to the amount repaid or refunded.
(5) The *responsible authority’s application may deal with more than one increase to the same *literary proceeds amount.
Division 3—How literary proceeds orders are obtained
162 Proceeds of crime authority may apply for a literary proceeds order
(1) A *proceeds of crime authority may apply for a *literary proceeds order.
(2) An application may be made in relation to one or more offences.
163 Notice of application
(1) The *responsible authority must give written notice of the application to the person who would be subject to the *literary proceeds order if it were made.
(2) The *responsible authority must include a copy of the application, and any affidavit supporting the application, with the notice.
164 Amendment of application
(1) The court hearing the application may amend the application:
(a) on application by the *responsible authority; or
(b) with the consent of the authority.
(2) However, the court must not amend the application so as to include additional *literary proceeds in the application unless the court is satisfied that:
(a) the literary proceeds were not reasonably capable of identification when the application was originally made; or
(b) necessary evidence became available only after the application was originally made.
(3) If:
(a) the *responsible authority applies to amend the application for a *literary proceeds order against a person; and
(b) the effect of the amendment would be to include additional *literary proceeds in the application;
the authority must give the person written notice of the application to amend.
165 Procedure on application
The person who would be subject to the *literary proceeds order if it were made may appear and adduce evidence at the hearing of the application.
166 Applications to courts before which persons are convicted
If an application for a *literary proceeds 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—Enforcement of literary proceeds orders
167 Enforcement of literary proceeds orders
(1) An amount payable by a person to the Commonwealth under a *literary proceeds order is a civil debt due by the person to the Commonwealth.
(2) A *literary proceeds order against a person may be enforced as if it were an order made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.
(3) The debt arising from the order is taken to be a judgment debt.
168 Property subject to a person’s effective control
(1) If:
(a) a person is subject to a *literary proceeds order; and
(b) the *responsible authority applies to the court for an order under this section; and
(c) the court is satisfied that particular property is subject to the *effective control of the person;
the court may make an order declaring that the whole, or a specified part, of that property is available to satisfy the literary proceeds order.
(2) The order under subsection (1) may be enforced against the property as if the property were the *person’s property.
(3) A *restraining order may be made in respect of the property as if:
(a) the property were the *person’s property; and
(b) the person had committed a *serious offence.
(4) If the *responsible authority applies for an order under subsection (1) relating to particular property, the authority must give written notice of the application to:
(a) the person who is subject to the *literary proceeds order; and
(b) any person whom the authority reasonably believes may have an *interest in the property.
(5) The person who is subject to the *literary proceeds order, and any person who claims an *interest in the property, may appear and adduce evidence at the hearing of the application.
169 Charge on property subject to restraining order
(1) If:
(a) a *literary proceeds order is made against a person in relation to an *indictable offence; and
(b) a *restraining order is, or has been, made against:
(i) the *person’s property; or
(ii) another person’s property in relation to which an order under subsection 168(1) is, or has been, made; and
(c) the restraining order relates to that offence or a *related offence;
then, upon the making of the later of the orders, there is created, by force of this section, a charge on the property to secure the payment to the Commonwealth of the *literary proceeds amount.
(2) The charge ceases to have effect in respect of the property:
(a) if the *literary proceeds order was made in relation to the person’s conviction of the *indictable offence and that conviction is *quashed—upon the order being discharged under Division 5; or
(b) upon the discharge of the literary proceeds order or the *restraining order by a court hearing an appeal against the making of the order; or
(c) upon payment to the Commonwealth of the *literary proceeds amount in satisfaction of the literary proceeds order; or
(d) upon the sale or other disposition of the property:
(i) under an order under Division 4 of Part 4‑1; or
(ii) by the owner of the property with the consent of the court that made the literary proceeds order; or
(iii) where the restraining order directed the *Official Trustee to take custody and control of the property—by the owner of the property with the consent of the Official Trustee; or
(e) upon the sale of the property to a purchaser in good faith for value who, at the time of purchase, has no notice of the charge;
whichever first occurs.
(3) The charge:
(a) is subject to every *encumbrance on the property (other than an encumbrance in which the person referred to in paragraph (1)(a) has an *interest) that came into existence before the charge and that would, apart from this subsection, have priority over the charge; and
(b) has priority over all other encumbrances; and
(c) subject to subsection (2), is not affected by any change of ownership of the property.
(4) Subsection 73(2) of the Personal Property Securities Act 2009 applies to the charge (to the extent, if any, to which that Act applies in relation to the property charged).
Note 1: The effect of this subsection is that the priority between the charge and a security interest in the property to which the Personal Property Securities Act 2009 applies is to be determined in accordance with this Act rather than the Personal Property Securities Act 2009.
Note 2: Subsection 73(2) of the Personal Property Securities Act 2009 applies to charges created by this section after the commencement of subsection (4) (which is at the registration commencement time within the meaning of the Personal Property Securities Act 2009).
170 Charges may be registered
(1) If:
(a) a charge is created by section 169 on property of a particular kind; and
(b) the provisions of any law of the Commonwealth or of a State or Territory provide for the registration of title to, or charges over, property of that kind;
the *Official Trustee or the *responsible authority for the *literary proceeds order or *restraining order referred to in that section may cause the charge so created to be registered under the provisions of that law.
Note: A charge is created under section 169 if both a literary proceeds order and a restraining order have been made in relation to an indictable offence (or related offence).
(2) A person who purchases or otherwise acquires an *interest in the property after the registration of the charge is, for the purposes of paragraph 169(2)(e), taken to have notice of the charge at the time of the purchase or acquisition.
(3) In this section:
registration of a charge on a particular kind of personal property within the meaning of the Personal Property Securities Act 2009 includes the registration of data in relation to that kind of property for the purposes of paragraph 148(c) of that Act.
Note: The Personal Property Securities Act 2009 provides for the registration of such data only if regulations are made for the purposes of paragraph 148(c) of that Act.
171 Literary proceeds amounts exceeding the court’s jurisdiction
(1) If:
(a) a court makes a *literary proceeds order; and
(b) the court does not have jurisdiction with respect to the recovery of debts of an amount equal to the *literary proceeds amount under the order;
the registrar of the court must issue a certificate containing the particulars specified in the regulations.
(2) The certificate may be registered, in accordance with the regulations, in a court having jurisdiction with respect to the recovery of debts of an amount equal to the *literary proceeds amount.
(3) Upon registration in a court, the certificate is enforceable in all respects as a final judgment of the court in favour of the Commonwealth.
Division 5—The effect on literary proceeds orders of convictions being quashed
172 Literary proceeds order unaffected if not made in relation to a conviction
A *literary proceeds order made in relation to an offence but not made in relation to a person’s conviction of the offence is not affected if the person is convicted of the offence and the conviction is subsequently *quashed.
173 Discharge of literary proceeds order if made in relation to a conviction
(1) A *literary proceeds order made 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.
(2) However, unless and until a court decides otherwise on such an application, the *quashing of the conviction does not affect the *literary proceeds order:
(a) for 14 days after the conviction is quashed; and
(b) if the *responsible authority makes such an application.
174 Notice of application for confirmation of literary proceeds order
The *responsible authority must give to the person written notice of an application for confirmation of the *literary proceeds order.
Note: If the authority applies for confirmation of a forfeiture order, it can also apply for an examination order under Part 3‑1.
175 Procedure on application for confirmation of literary proceeds order
(1) The person may appear and adduce evidence at the hearing of the application for confirmation of the order.
(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.
176 Court may confirm literary proceeds order
The court may confirm the *literary proceeds order if the court is satisfied that, when the *responsible authority applied for the order, the court could have made the order:
(a) on the ground that the person had committed the offence in relation to which the person’s conviction was *quashed; and
(b) without relying on the person’s conviction of the offence.
177 Effect of court’s decision on confirmation of literary proceeds order
(1) If the court confirms the *literary proceeds order under section 176, the order is taken not to be affected by the *quashing of the person’s conviction of the offence.
(2) If the court decides not to confirm the *literary proceeds order, the order is discharged.
Division 6—Literary proceeds orders covering future literary proceeds
178 Literary proceeds orders can cover future literary proceeds
(1) The court may include in a *literary proceeds order one or more amounts in relation to *benefits that the person who is the subject of the order may derive in the future if the court is satisfied that:
(a) the person will derive the benefits; and
(b) if the person derives the benefits, they will be *literary proceeds in relation to the offence to which the order relates.
(2) However, the court must not include an amount in the order unless the *responsible authority, in its application for the order, requested the inclusion in the order of one or more amounts in relation to *benefits that the person who would be the subject of the order may derive in the future.
(3) Each amount included in the order is to be an amount that the court considers would be a *literary proceeds amount in relation to a *benefit that the person may derive in the future, if the court were to make a *literary proceeds order after the person derived the benefit.
Note: Division 2 describes how literary proceeds amounts are determined.
179 Enforcement of literary proceeds orders in relation to future literary proceeds
If:
(a) an amount is included in a *literary proceeds order in relation to *benefits that the person who is the subject of the order may derive in the future; and
(b) the person subsequently derives those benefits;
immediately the benefits are derived, Division 4 applies to the amount as if it were a *literary proceeds amount under a literary proceeds order.
Part 2‑6—Unexplained wealth orders
179A Simplified outline of this Part
This Part provides for the making of certain orders relating to unexplained wealth.
A preliminary unexplained wealth order requires a person to attend court for the purpose of enabling the court to decide whether to make an unexplained wealth order against the person.
An unexplained wealth order is an order requiring the person to pay an amount equal to so much of the person’s total wealth as the person cannot satisfy the court is not derived or realised, directly or indirectly, from certain offences.
Division 1—Making unexplained wealth orders
179B Making a preliminary unexplained wealth order requiring a person to appear
(1) A court with *proceeds jurisdiction must make an order (a preliminary unexplained wealth order) requiring a person to appear before the court for the purpose of enabling the court to decide whether or not to make an *unexplained wealth order in relation to the person if:
(a) a *proceeds of crime authority applies for an unexplained wealth order in relation to the person; and
(b) the court is satisfied that an *authorised officer has reasonable grounds to suspect that the person’s *total wealth exceeds the value of the person’s *wealth that was *lawfully acquired; and
(c) any affidavit requirements in subsection (2) for the application have been met.
Effect of restraining orders
(1A) Paragraphs (1)(b) and (c) do not apply if a *restraining order made under section 20A in relation to the person:
(a) is in force; or
(b) has been revoked under section 44.
(1B) If subsection (1A) applies, the court may, in considering making an order under subsection (1), take into account:
(a) an affidavit of an *authorised officer that:
(i) supported the application for the *restraining order made under section 20A; and
(ii) met the requirements of subsection 20A(3); and
(b) any material that an authorised officer or *proceeds of crime authority provided, in the proceedings under section 20A, relating to the requirements of subsection 20A(3); and
(c) any other material that an authorised officer or proceeds of crime authority provides in the proceedings under this section.
This subsection does not limit the court’s power to take other material into account.
Affidavit requirements
(2) An application for an *unexplained wealth order in relation to a person must be supported by an affidavit of an *authorised officer that:
(a) states that the authorised officer suspects that the person’s *total wealth exceeds the value of the person’s *wealth that was *lawfully acquired; and
(b) includes the grounds on which the authorised officer holds that suspicion.
Considering application without notice
(3) The court must make the order under subsection (1) without notice having been given to any person if the *responsible authority requests the court to do so.
Refusal to make preliminary unexplained wealth order
(4) Despite subsection (1), the court may refuse to make the *preliminary unexplained wealth order if the court is satisfied that 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.
179C Application to revoke a preliminary unexplained wealth order
(1) If a court makes a *preliminary unexplained wealth order requiring a person to appear before the court, the person may apply to the court to revoke the order.
(2) The application must be made:
(a) within 28 days after the person is notified of the *preliminary unexplained wealth 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.
(4) However, the *preliminary unexplained wealth order remains in force until the court revokes the order.
(5) The court may revoke the *preliminary unexplained wealth order on application under subsection (1) 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 in the public interest to do so; or
(c) it is otherwise in the interests of justice to do so.
179CA Notice and procedure on application to revoke preliminary unexplained wealth order
(1) This section applies if a person applies under section 179C for revocation of a *preliminary unexplained wealth order.
(2) The applicant may appear and adduce material at the hearing of the application.
(3) The applicant must give the *responsible authority:
(a) written notice of the application; and
(b) a copy of any affidavit supporting the application.
(4) The *responsible authority may appear and adduce additional material at the hearing of the application.
(5) The *responsible authority must give the applicant a copy of any affidavit it proposes to rely on to contest the application.
(6) The notice and copies of affidavits must be given under subsections (3) and (5) within a reasonable time before the hearing of the application.
179D Notice of revocation of a preliminary unexplained wealth order
If a *preliminary unexplained wealth order is revoked under section 179C, the *responsible authority must give written notice of the revocation to the applicant for the revocation.
179E Making an unexplained wealth order
(1) A court with *proceeds jurisdiction must make an order (an unexplained wealth order) requiring a person to pay an amount to the Commonwealth if:
(a) the court has made a *preliminary unexplained wealth order in relation to the person; and
(b) the court is not satisfied that the whole or any part of the person’s *wealth was not derived or realised, directly or indirectly, from one or more of the following:
(i) an offence against a law of the Commonwealth;
(ii) a *foreign indictable offence;
(iia) a *relevant offence of a *participating State;
(iii) a *State offence that has a federal aspect;
(iv) a *Territory offence.
(2) The court must specify in the order that the person is liable to pay to the Commonwealth an amount (the person’s unexplained wealth amount) equal to the amount that, in the opinion of the court, is the difference between:
(a) the person’s *total wealth; and
(b) the sum of the values of the property that the court is satisfied was not derived or realised, directly or indirectly, from one or more of the following:
(i) an offence against a law of the Commonwealth;
(ii) a *foreign indictable offence;
(iia) a *relevant offence of a *participating State;
(iii) a *State offence that has a federal aspect;
(iv) a *Territory offence;
reduced by any amount deducted under section 179J (reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc.).
(3) In proceedings under this section, the burden of proving that a person’s *wealth is not derived or realised, directly or indirectly, from one or more of the offences referred to in paragraph (1)(b) lies on the person.
(4) To avoid doubt:
(a) when considering whether to make an order under subsection (1), the court may have regard to information not included in the application; and
(b) the court may make an order under subsection (1) in relation to a person even if the person failed to appear as required by the *preliminary unexplained wealth order.
(5) To avoid doubt, subsection (3) has effect despite section 317.
(6) Despite subsection (1), the court may refuse to make an order under that subsection if the court is satisfied that:
(a) the person’s *unexplained wealth amount is less than $100,000; or
(b) it is not in the public interest to make the order.
179EA Refusal to make an order for failure to give undertaking
(1) The court may refuse to make a *preliminary unexplained wealth order or an *unexplained wealth 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.
(2) The *responsible authority may give such an undertaking on behalf of the Commonwealth.
179EB Costs
If the court refuses to make a *preliminary unexplained wealth order or an *unexplained wealth order, it may make any order as to costs it considers appropriate, including costs on an indemnity basis.
179F Ancillary orders
(1) A court that makes an *unexplained wealth order, or any other court that could have made the unexplained wealth order, may make orders ancillary to the order, either when the order is made or at a later time.
(2) A court that makes a *preliminary unexplained wealth order, or any other court that could have made the order, may make orders ancillary to the order, either when the order is made or at a later time.
Division 2—Unexplained wealth amounts
179G Determining unexplained wealth amounts
Meaning of wealth
(1) The property of a person that, taken together, constitutes the wealth of a person for the purposes of this Part is:
(a) property owned by the person at any time;
(b) property that has been under the *effective control of the person at any time;
(c) property that the person has disposed of (whether by sale, gift or otherwise) or consumed at any time;
including property owned, effectively controlled, disposed of or consumed before the commencement of this Part.
Meaning of total wealth
(2) The total wealth of a person is the sum of all of the values of the property that constitutes the person’s wealth.
Value of property
(3) The value of any property that has been disposed of or consumed, or that is for any other reason no longer available, is the greater of:
(a) the value of the property at the time it was acquired; and
(b) the value of the property immediately before it was disposed of, consumed or stopped being available.
(4) The value of any other property is the greater of:
(a) the value of the property at the time it was acquired; and
(b) the value of the property on the day that the application for the *unexplained wealth order was made.
179H Effect of property vesting in an insolvency trustee
In assessing the value of property of a person, property is taken to continue to be the *person’s property if it vests in any of the following:
(a) in relation to a bankruptcy—the trustee of the estate of the bankrupt;
(b) in relation to a composition or scheme of arrangement under Division 6 of Part IV of the Bankruptcy Act 1966—the trustee of the composition or scheme of arrangement;
(c) in relation to a personal insolvency agreement under Part X of the Bankruptcy Act 1966—the trustee of the agreement;
(d) in relation to the estate of a deceased person in respect of which an order has been made under Part XI of the Bankruptcy Act 1966—the trustee of the estate.
179J Reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc.
In determining the *unexplained wealth amount specified in an *unexplained wealth order in relation to a person, the court must deduct an amount equal to the following:
(a) the value, at the time of making the order, of any property of the person forfeited under:
(i) a *forfeiture order; or
(ii) an *interstate forfeiture order; or
(iii) a *foreign forfeiture order;
(b) the sum of any amounts payable by the person under:
(i) a *pecuniary penalty order; or
(ii) a *literary proceeds order; or
(iii) an order under section 243B of the Customs Act 1901; or
(iv) an *interstate pecuniary penalty order; or
(v) a *foreign pecuniary penalty order.
179K Varying unexplained wealth orders to increase amounts
(1) The court may, on the application of the *responsible authority, vary an *unexplained wealth order against a person by increasing the *unexplained wealth amount if subsection (2) or (3) applies. The amount of the increase is as specified in subsection (2) or (3).
(2) The *unexplained wealth amount may be increased if:
(a) the value of property of the person forfeited under a *forfeiture order, an *interstate forfeiture order or a *foreign forfeiture order was deducted from the unexplained wealth amount under paragraph 179J(a); and
(b) an appeal against the forfeiture, or against the order, is allowed.
The amount of the increase is equal to the value of the property.
(3) The *unexplained wealth amount may be increased if:
(a) an amount payable under a *pecuniary penalty order, a *literary proceeds order, an order under section 243B of the Customs Act 1901, an *interstate pecuniary penalty order or a *foreign pecuniary penalty order was deducted from the *unexplained wealth amount under paragraph 179J(b); and
(b) an appeal against the amount payable, or against the order, is allowed.
The amount of the increase is equal to the amount that was payable.
(4) The *responsible authority’s application may deal with more than one increase to the same *unexplained wealth amount.
179L Relieving certain dependants from hardship
(1) The court making an *unexplained wealth order in relation to a person must make another order directing the Commonwealth, once the unexplained wealth order is satisfied, to pay a specified amount to a *dependant of the person if the court is satisfied that:
(a) the unexplained wealth order would cause hardship to the dependant; and
(b) the specified amount would relieve that hardship; and
(c) 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 unexplained wealth order.
(2) The specified amount must not exceed the person’s *unexplained wealth amount.
(3) An order under this section may relate to more than one of the person’s *dependants.
Division 3—How unexplained wealth orders are obtained
179M Proceeds of crime authority may apply for an unexplained wealth order
A *proceeds of crime authority may apply for an *unexplained wealth order.
179N Notice of application
(1) This section sets out the notice requirements if a *proceeds of crime authority has made an application for an *unexplained wealth order.
(2) If a court with *proceeds jurisdiction makes a *preliminary unexplained wealth order in relation to the person, the *responsible authority must, within 7 days of the making of the order:
(a) give written notice of the order to the person who would be subject to the *unexplained wealth order if it were made; and
(b) provide to the person a copy of the application for the unexplained wealth order, and a copy of:
(i) the affidavit referred to in subsection 179B(2); or
(ii) if, because of subsection 179B(1A), there is no such affidavit—the affidavit referred to in paragraph 179B(1B)(a).
(2A) The court may make an order extending the period during which the things referred to in subsection (2) must be done, by a period not exceeding 28 days, if:
(a) the *responsible authority applies for the order before the end of the period (including that period as previously extended); and
(b) the court is satisfied that it is appropriate to do so.
(2B) The period referred to in subsection (2) may be extended more than once.
(3) The *responsible authority must also give a copy of any other affidavit supporting the application to the person who would be subject to the *unexplained wealth order if it were made.
(4) The copies must be given under subsection (3) within a reasonable time before the hearing in relation to whether the order is to be made.
179P Additional application for an unexplained wealth order
(1) A *proceeds of crime authority cannot, unless the court gives leave, apply for an *unexplained wealth order against a person if:
(a) an application has previously been made for an unexplained wealth order in relation to the person; and
(b) the application has been finally determined on the merits.
(2) The court must not give leave unless it is satisfied that:
(a) the *wealth 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 give the leave.
179Q Procedure on application and other notice requirements
(1) The person who would be subject to an *unexplained wealth order if it were made may appear and adduce evidence at the hearing in relation to whether the order is to be made.
(2) The person must give the *responsible authority written notice of any grounds on which he or she proposes to contest the making of the order.
(3) The *responsible authority may appear and adduce evidence at the hearing in relation to whether an *unexplained wealth order is to be made.
Division 4—Enforcement of unexplained wealth orders
179R Enforcement of an unexplained wealth order
(1) An amount payable by a person to the Commonwealth under an *unexplained wealth order is a civil debt due by the person to the Commonwealth.
(2) An *unexplained wealth order against a person may be enforced as if it were an order made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.
(3) The debt arising from the order is taken to be a judgment debt.
(4) If an *unexplained wealth order is made against a person after the person’s death, this section has effect as if the person had died on the day after the order was made.
179S Property subject to a person’s effective control
(1) If:
(a) a person is subject to an *unexplained wealth order; and
(b) the *responsible authority applies to the court for an order under this section; and
(c) the court is satisfied that particular property is subject to the *effective control of the person;
the court may make an order declaring that the whole, or a specified part, of that property is available to satisfy the unexplained wealth order.
(2) The order under subsection (1) may be enforced against the property as if the property were the *person’s property.
(3) The court may, on application by the *responsible authority, make a *restraining order under section 20A in respect of the property as if:
(a) the property were the *person’s property; and
(b) the requirements in paragraphs 20A(1)(c) to (g) were satisfied.
(4) If the *responsible authority applies for an order under subsection (1) relating to particular property, the authority must give written notice of the application to:
(a) the person who is subject to the *unexplained wealth order; and
(b) any person whom the authority has reason to believe may have an *interest in the property.
(5) The person who is subject to the *unexplained wealth order, and any person who claims an *interest in the property, may appear and adduce evidence at the hearing of the application.
179SA Charge on property subject to restraining order
(1) If:
(a) an *unexplained wealth order is made against a person; and
(b) the person is the *suspect in relation to a *restraining order that is or has been made against:
(i) the *person’s property; or
(ii) another person’s property in relation to which an order under subsection 179S(1) is, or has been, made;
then, upon the making of the later of the orders, there is created, by force of this section, a charge on the property to secure the payment to the Commonwealth of the person’s *unexplained wealth amount.
(2) The charge ceases to have effect in respect of the property:
(a) upon the discharge of the *unexplained wealth order or the *restraining order by a court hearing an appeal against the making of the order; or
(b) upon payment to the Commonwealth of the *unexplained wealth amount in satisfaction of the unexplained wealth order; or
(c) upon the sale or other disposition of the property:
(i) under an order under Division 4 of Part 4‑1; or
(ii) by the owner of the property with the consent of the court that made the unexplained wealth order; or
(iii) if the restraining order directed the *Official Trustee to take custody and control of the property—by the owner of the property with the consent of the Official Trustee; or
(d) upon the sale of the property to a purchaser in good faith for value who, at the time of purchase, has no notice of the charge; or
(e) upon the *responsible authority for the unexplained wealth order or restraining order determining, by writing, that the charge should cease to have effect in respect of the property;
whichever first occurs.
(3) The charge:
(a) is subject to every *encumbrance on the property (other than an encumbrance in which the person referred to in paragraph (1)(a) has an *interest) that came into existence before the charge and that would, apart from this subsection, have priority over the charge; and
(b) has priority over all other encumbrances; and
(c) subject to subsection (2), is not affected by any change of ownership of the property.
(4) Subsection 73(2) of the Personal Property Securities Act 2009 applies to the charge (to the extent, if any, to which that Act applies in relation to the property charged).
Note: The effect of this subsection is that the priority between the charge and a security interest in the property to which the Personal Property Securities Act 2009 applies is to be determined in accordance with this Act rather than the Personal Property Securities Act 2009.
(5) A determination made under paragraph (2)(e) is not a legislative instrument.
179SB Charges may be registered
(1) If:
(a) a charge is created by section 179SA on property of a particular kind; and
(b) the provisions of any law of the Commonwealth or of a State or Territory provide for the registration of title to, or charges over, property of that kind;
the *Official Trustee or the *responsible authority for the *unexplained wealth order or *restraining order referred to in that section may cause the charge so created to be registered under the provisions of that law.
(2) A person who purchases or otherwise acquires an *interest in the property after the registration of the charge is taken, for the purposes of paragraph 179SA(2)(d), to have notice of the charge at the time of the purchase or acquisition.
(3) In this section:
registration of a charge on a particular kind of personal property within the meaning of the Personal Property Securities Act 2009 includes the registration of data in relation to that kind of property for the purposes of paragraph 148(c) of that Act.
Note: The Personal Property Securities Act 2009 provides for the registration of such data only if regulations are made for the purposes of paragraph 148(c) of that Act.
179T Amounts exceeding the court’s jurisdiction
(1) If:
(a) a court makes an *unexplained wealth order of a particular amount; and
(b) the court does not have jurisdiction with respect to the recovery of debts of an amount equal to that amount;
the registrar of the court must issue a certificate containing the particulars specified in the regulations.
(2) The certificate may be registered, in accordance with the regulations, in a court having jurisdiction with respect to the recovery of debts of an amount equal to the amount of the relevant order.
(3) Upon registration in a court, the certificate is enforceable in all respects as a final judgment of the court in favour of the Commonwealth.
Division 5—Oversight
179U Parliamentary supervision
(1) The operation of this Part and section 20A is subject to the oversight of the Parliamentary Joint Committee on Law Enforcement (the Committee).
Appearing before the Committee
(2) The Committee may require the Australian Crime Commission, the Australian Federal Police, the *DPP or any other federal agency or authority that is the recipient of any material disclosed as the result of the operation of this Part to appear before it from time to time to give evidence.
Report about unexplained wealth investigations and proceedings
(3) The Commissioner of the Australian Federal Police must give the Committee a report in respect of each financial year that contains the following information:
(a) the number of matters investigated in the year, by each *enforcement agency, in respect of which a likely outcome may, or will, be the initiation of proceedings under this Part, and the basis for determining that number;
(b) the number and results of applications in the year for:
(i) *restraining orders under section 20A; and
(ii) *unexplained wealth orders;
(c) any other information of a kind prescribed by the regulations.
(4) The report must be given as soon as practicable after the report under section 67 of the Australian Federal Police Act 1979 in respect of the financial year is laid before a House of the Parliament in accordance with that section.
(5) If the Commissioner of the Australian Federal Police requests the *DPP or the Chief Executive Officer (however described) of an *enforcement agency to give the Commissioner information that the Commissioner considers necessary to prepare the report, the DPP or Chief Executive Officer must comply with the request.
Chapter 3—Information gathering
Part 3‑1—Examinations
Division 1—Examination orders
180 Examination orders relating to restraining orders
(1) If a *restraining order is in force, the court that made the restraining order, or any other court that could have made the restraining order, may make an order (an examination order) for the *examination of any person, including:
(a) a person whose property is, or a person who has or claims an *interest in property that is, the subject of the restraining order; or
(b) a person who is a *suspect in relation to the restraining order; or
(c) the spouse or *de facto partner of a person referred to in paragraph (a) or (b);
about the *affairs of a person referred to in paragraph (a), (b) or (c).
(2) The *examination order ceases to have effect if the *restraining order to which it relates ceases to have effect.
180A Examination orders relating to applications for exclusion from forfeiture
(1) If an application for an order under section 73 or 94 for an *interest in property to be excluded from forfeiture is made, the court to which the application is made may make an order (an examination order) for the *examination of any person including:
(a) a person who has or claims an interest in the property; or
(b) the spouse or *de facto partner of a person referred to in paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
180B Examination orders relating to applications for compensation
(1) If an application for an order under section 77 or 94A (which deal with compensation) is made in relation to an *interest in property that has been or may be forfeited, the court to which the application is made may make an order (an examination order) for the *examination of any person including:
(a) a person who has or claims an *interest in the property; or
(b) the spouse or *de facto partner of a person referred to in paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
180C Examination orders relating to applications under section 102
(1) If an application for an order under section 102 (which deals with the recovery of property) is made under section 104 in relation to forfeited property, the court to which the application is made may make an order (an examination order) for the *examination of any person including:
(a) a person who has or claims an *interest in the property; or
(b) the spouse or *de facto partner of a person referred to in paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
180D Examination orders relating to enforcement of confiscation orders
(1) If a *confiscation order has been made but not satisfied, the court that made the confiscation order may make an order (an examination order) for the *examination of any person including:
(a) a person against whom the confiscation order was made; or
(b) the spouse or *de facto partner of a person referred to in paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when proceedings relating to the enforcement of the *confiscation order are finally determined, withdrawn or otherwise disposed of.
180E Examination orders relating to restraining orders revoked under section 44
(1) If a *restraining order is revoked under section 44 (which deals with giving security to revoke etc. a restraining order), the court that revoked the restraining order may make an order (an examination order) for the *examination of any person including:
(a) a person whose property was, or a person who had an *interest in property that was, the subject of the restraining order; or
(b) the spouse or *de facto partner of a person referred to in paragraph (a);
about the *affairs of a person referred to in paragraph (a) or (b).
(2) The *examination order ceases to have effect when the *restraining order would have ceased to have effect, assuming it had not been revoked under section 44.
181 Examination orders relating to applications relating to quashing of convictions
(1) If an application relating to the *quashing of a person’s conviction of an offence is made, as mentioned in section 81, 107, 146 or 173, the court to which the application is made may make an order (an examination order) for the *examination of any person, including:
(a) the person whose conviction is quashed; or
(b) a person whose property is, or a person who has an *interest in property that is, the subject of the forfeiture, *pecuniary penalty order or *literary proceeds order to which the application relates; or
(c) the spouse or *de facto partner of a person referred to in paragraph (a) or (b);
about the *affairs of a person referred to in paragraph (a), (b) or (c).
(2) The *examination order ceases to have effect:
(a) if the application is withdrawn; or
(b) when the court makes a decision on the application.
181A Examination orders relating to applications under section 57A
(1) If an application for an order under section 57 (which deals with buying back forfeited property) is made under section 57A in relation to property that is the subject of a *forfeiture order, the court to which the application is made may make an order (an examination order) for the *examination of any person including:
(a) the person who made the application; or
(b) a person who is a *suspect in relation to the forfeiture order; or
(c) in a case where the property was covered by a *restraining order when the forfeiture order was made—a person who is a suspect in relation to the restraining order; or
(d) the spouse or *de facto partner of a person referred to in paragraph (a), (b) or (c);
about the *affairs of a person referred to in paragraph (a), (b), (c) or (d).
(2) The *examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
181B Examination orders relating to applications under section 104A
(1) If an application for an order under section 103 (which deals with buying back forfeited property) is made under section 104A in relation to property, the court to which the application is made may make an order (an examination order) for the *examination of any person including:
(a) the person who made the application; or
(b) a person who is a *suspect in relation to the *restraining order mentioned in section 103; or
