Proceeds of Crime Act 1987

An Act to provide for confiscation of the proceeds of crime, and for related purposes

This Act may be cited as the Proceeds of Crime Act 1987.

This Act shall come into operation on the day on which it receives the Royal Assent.

(1) The principal objects of this Act are:

(a) to deprive persons of the proceeds of, and benefits derived from, the commission of offences against the laws of the Commonwealth or the Territories;

(b) to provide for the forfeiture of property used in or in connection with the commission of such offences; and

(2) The objects of this Act include the objects of:

(a) providing for the enforcement in the Territories of forfeiture orders, pecuniary penalty orders and restraining orders made in respect of offences against the laws of the States;

(b) facilitating the enforcement in Australia, pursuant to the Mutual Assistance Act, of forfeiture orders, pecuniary penalty orders and restraining orders made in respect of foreign serious offences; and

(c) assisting foreign countries, pursuant to the Mutual Assistance Act, to trace the proceeds of, benefits derived from and property used in or in connection with the commission of foreign serious offences.

4 Interpretation

(1) In this Act, unless the contrary intention appears:

ACC means the Australian Crime Commission.

account means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for:

(a) a fixed term deposit; and

(b) a safety deposit box.

ADI (authorised deposit‑taking institution) means:

(a) a body corporate that is an ADI for the purposes of the Banking Act 1959; or

(b) the Reserve Bank of Australia; or

AFP member means a member or special member of the Australian Federal Police.

agent includes, if the agent is a corporation, the officers and agents of the corporation.

appropriate officer means the DPP or a person in a class of persons declared by the regulations to be within this definition.

approved means approved by the Minister in writing for the purposes of the provision in which the term occurs.

Australia, when used in a geographical sense, includes the external Territories.

Bankruptcy Act means the Bankruptcy Act 1966.

benefit includes service or advantage.

commencement of the Proceeds of Crime Act 2002 means the commencement of sections 3 to 338 of the Proceeds of Crime Act 2002.

Commissioner means the Commissioner of the Australian Federal Police.

Confiscated Assets Special Account means the Account continued in existence under section 34A.

confiscation order means a forfeiture order or a pecuniary penalty order.

co‑operative housing society means a society registered or incorporated as a co‑operative housing society or similar society under a law of a State or Territory.

corresponding law means a law of a State that is declared by the regulations to be a law that corresponds to this Act.

Crimes Act means the Crimes Act 1914.

criminal investigation, in relation to a foreign serious offence, has the same meaning as in the Mutual Assistance Act.

criminal proceeding, in relation to a foreign serious offence, has the same meaning as in the Mutual Assistance Act.

Customs Act means the Customs Act 1901.

Customs officer means an officer of Customs within the meaning of the Customs Act.

director, in relation to a financial institution or a corporation, means:

(a) if the institution or corporation is a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory—a constituent member of the body corporate;

(b) any person occupying or acting in the position of director of the institution or corporation, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and

(c) any person in accordance with whose directions or instructions the directors of the institution or corporation are accustomed to act.

distributable funds means amounts standing to the credit of the Confiscated Assets Special Account that is:

(a) identified as distributable funds in accordance with the regulations (other than such money as is identified by the Official Trustee under subsection 34E(2) as suspended funds); or

(b) identified by the Official Trustee under subsection 34E(3) as distributable funds.

DPP means the Director of Public Prosecutions.

encumbrance, in relation to property, includes any interest, mortgage, charge, right, claim or demand in respect of the property.

equitable sharing program means an arrangement under which any or all of the following happen:

(a) the Commonwealth shares with a participating State a proportion of any proceeds of any unlawful activity recovered under a Commonwealth law, where, in the opinion of the Attorney‑General, that State has made a significant contribution to the recovery of those proceeds or to the investigation or prosecution of the relevant unlawful activity;

(b) each participating State shares with the Commonwealth any proceeds resulting from a breach of the criminal law of that State where, in the opinion of the appropriate Minister of that State, officers of a law enforcement agency of the Commonwealth have made a significant contribution to the recovery of those proceeds;

(c) the Commonwealth shares with a foreign country a proportion of any proceeds of any unlawful activity recovered under a Commonwealth law where, in the opinion of the Attorney‑General, the foreign country has made a significant contribution to the recovery of those proceeds or to the investigation or prosecution of the unlawful activity.

executive officer, in relation to a financial institution or a corporation, means any person, by whatever name called and whether or not he or she is a director of the institution or corporation, who is concerned, or takes part, in the management of the institution or corporation.

facsimile copy means a copy obtained by facsimile transmission.

financial institution means:

(a) an ADI; or

(b) a co‑operative housing society; or

(d) a body corporate that is, or that, if it had been incorporated in Australia, would be, a financial corporation within the meaning of paragraph 51(xx) of the Constitution.

fixed term deposit means an interest bearing deposit lodged for a fixed period.

foreign forfeiture order has the same meaning as in the Mutual Assistance Act.

foreign pecuniary penalty order has the same meaning as in the Mutual Assistance Act.

foreign restraining order has the same meaning as in the Mutual Assistance Act.

foreign serious offence has the same meaning as in the Mutual Assistance Act.

forfeiture order means an order under subsection 19(1).

GBE means a prescribed government business enterprise.

indictable offence means an offence against a law of the Commonwealth, or a law of a Territory, that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

interest, in relation to property, means:

(a) a legal or equitable estate or interest in the property; or

(b) a right, power or privilege in connection with the property;

whether present or future and whether vested or contingent.

interstate forfeiture order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.

interstate indictable offence means an offence against a law of a State, being an offence in relation to which an interstate forfeiture order or an interstate pecuniary penalty order may be made under a corresponding law of that State.

interstate pecuniary penalty order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.

interstate restraining order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition.

law enforcement authority means the Australian Federal Police or the ACC.

magistrate includes a justice of the peace.

magistrate’s court means a court of summary jurisdiction constituted by a Stipendiary Magistrate, a Police Magistrate or a Special Magistrate.

Mutual Assistance Act means the Mutual Assistance in Criminal Matters Act 1987.

narcotic substance means:

(a) a narcotic substance within the meaning of the Customs Act; or

(b) a substance declared by the regulations to be a substance to which this definition applies.

officer means a director, secretary, executive officer or employee.

Official Trustee means the Official Trustee in Bankruptcy.

ordinary indictable offence means an indictable offence that is not a serious offence.

pecuniary penalty order means an order under subsection 26(1).

penalty amount, in relation to a pecuniary penalty order against a person, means the amount that the person is liable to pay the Commonwealth under the order.

petition means a petition under the Bankruptcy Act.

police officer means:

(a) an AFP member; or

(b) a member of the police force of a State or Territory.

premises includes:

(a) a structure, building, aircraft, vehicle or vessel;

(b) a place (whether enclosed or built upon or not); and

prescribed officer means an SES employee or acting SES employee in the Attorney‑General’s Department.

prescribed time, in relation to a warrant issued under Division 1 of Part III in relation to property, means:

(a) where an information is laid in respect of the relevant offence either before the warrant is issued or within 48 hours after the warrant is issued—the day that is one month after the date of the issue of the warrant; or

(b) in any other case—the time that is 48 hours after the time of the issue of the warrant.

proceeds, in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence.

proceeds of confiscated assets means the following:

(a) the remainder of the proceeds referred to in paragraph 9A(c) of the Crimes Act 1914;

(b) the money referred to in paragraph 208DA(3)(a) of the Customs Act 1901;

(d) the amount referred to in subsection 243B(4) of the Customs Act 1901;

(e) the remainder of the money referred to in paragraph 243G(6)(a) of the Customs Act 1901;

(f) the remainder of the proceeds referred to in paragraph 243G(6)(b) of the Customs Act 1901;

(g) the remainder of the money referred to in subparagraph 20(3)(b)(i);

(h) the remainder of the proceeds referred to in subparagraph 20(3)(b)(ii);

(i) the amount referred to in subsection 26(8);

(j) the remainder of the money referred to in subparagraph 30(4)(b)(i);

(k) the remainder of the proceeds referred to in subparagraph 30(4)(b)(ii);

(l) an amount referred to in subsection 33(1) or (2);

(m) an amount referred to in paragraph 34(f);

(n) the remainder of the money referred to in paragraph 49(6)(a);

(o) the remainder of the proceeds referred to in paragraph 49(6)(b);

(p) the remainder of the money referred to in paragraph 63(4)(a);

(q) the remainder of the proceeds referred to in paragraph 63(4)(b).

production order means an order under section 66.

property means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible and includes an interest in any such real or personal property.

property‑tracking document, in relation to an offence, means:

(a) a document relevant to:

(i) identifying, locating or quantifying property of a person who committed the offence; or

(ii) identifying or locating any document necessary for the transfer of property of a person who committed the offence; or

(b) a document relevant to:

(i) identifying, locating or quantifying tainted property in relation to the offence; or

(ii) identifying or locating any document necessary for the transfer of tainted property in relation to the offence.

registrable property means property title to which is passed by registration on a register kept pursuant to a provision of any law of the Commonwealth or of a State or Territory.

relevant application period, in relation to a person’s conviction of an indictable offence, means the period of 6 months after:

(a) where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(a)—the day on which the person was convicted of the offence;

(b) where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(b)—the day on which the person was discharged without conviction;

(c) where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(c)—the day on which the court took the offence into account in passing sentence for the other offence referred to in that paragraph; or

(d) where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(d)—the day on which the person is to be taken to have absconded in connection with the offence.

relevant offence, in relation to tainted property, means an offence by reason of the commission of which the property is tainted property.

relevant Supreme Court means:

(a) in relation to property seized under a warrant issued under Division 1 of Part III—the Supreme Court of the State or Territory in which an information in respect of the relevant offence has been, or is to be, laid;

(b) in relation to property seized under section 38—the Supreme Court of the State or Territory in which an information in respect of the relevant offence has been laid; or

(c) in relation to a person’s conviction of an offence or the charging, or proposed charging, of a person with an offence—the Supreme Court of the State or Territory in which the person has been convicted or has been, or is to be, charged with the offence.

restraining order means an order under subsection 43(2).

State includes the Australian Capital Territory and the Northern Territory.

State indictable offence means an offence against a law of a State that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

suspended funds means amounts standing to the credit of the Confiscated Assets Special Account that is:

(a) identified as suspended funds in accordance with the regulations (other than such money as is identified by the Official Trustee under subsection 34E(3) as distributable funds); or

(b) identified by the Official Trustee under subsection 34E(2) as suspended funds.

tainted property, in relation to an offence, means:

(a) property used in, or in connection with, the commission of the offence; or

(b) proceeds of the offence;

and when used without reference to a particular offence means tainted property in relation to an indictable offence.

Territory does not include the Australian Capital Territory or the Northern Territory.

unlawful activity means an act or omission that constitutes an offence against a law in force in the Commonwealth, a State, a Territory or a foreign country.

(2) A reference in this Act to a person being charged with an offence is a reference to an information being laid against the person for the offence whether or not:

(a) a summons to require the attendance of the person to answer the information has been issued; or

(b) a warrant for the apprehension of the person has been issued.

(3) A reference in this Act to a benefit derived by a person includes a reference to:

(a) a benefit derived, directly or indirectly, by the person; and

(b) a benefit derived, directly or indirectly, by another person at the request or direction of the first person.

(3A) For the purposes of this Act, in determining whether a person has derived substantial benefit from the commission of 2 or more public fraud offences, have regard to the aggregate of the benefits derived by the person from the commission of those offences.

(4) A reference in this Act to the property of a person includes a reference to property in respect of which the person has the beneficial interest.

(5) A reference in this Act to a criminal offence is a reference to an offence against a law of the Commonwealth or of a Territory.

(6) Without prejudice to its effect by virtue of subsection (5), this Act has effect as if a reference in this Act to a criminal offence included a reference to an offence against a law of a State.

(7) A reference in this Act to acquiring property, or an interest in property, for sufficient consideration is a reference to acquiring the property or the interest for a consideration that is sufficient and that, having regard solely to commercial considerations, reflects the value of the property or the interest.

(8) For the purposes of this Act, a person shall not be regarded as a director within the meaning of paragraph (c) of the definition of director in subsection (1) by reason only that the directors act on advice given by that person in the proper performance of the functions attaching to his or her professional capacity or to his or her business relationship with the directors of the financial institution or corporation, as the case may be.

5 Meaning of conviction etc. of offence

(1) For the purposes of this Act, a person shall be taken to be convicted of an offence if:

(a) the person is convicted, whether summarily or on indictment, of the offence;

(b) the person is charged with, and found guilty of, the offence but is discharged without conviction;

(c) a court, with the consent of the person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another offence; or

(d) the person absconds in connection with the offence.

(2) For the purposes of this Act, a person’s conviction of an offence shall be taken to be quashed:

(a) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(a)—if the conviction is quashed or set aside;

(b) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(b)—if the finding of guilt is quashed or set aside;

(c) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(c)—if either of the following events occur:

(i) the person’s conviction of the other offence referred to in that paragraph is quashed or set aside;

(ii) the decision of the court to take the offence into account in passing sentence for that other offence is quashed or set aside; or

(d) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(d)—if, after the person is brought before a court in respect of the offence, the person is discharged in respect of the offence or a conviction of the person for the offence is quashed or set aside.

(3) For the purposes of this Act, a person shall be taken to have been convicted of an offence in a particular State or Territory if:

(a) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(a)—the person was convicted of the offence in a court in that State or Territory;

(b) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(b)—the person was discharged without conviction by a court in that State or Territory;

(c) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(c)—the offence was taken into account by a court in that State or Territory in passing sentence on the person for the other offence referred to in that paragraph; or

(d) where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(d)—the information alleging the commission of the offence by the person was laid in that State or Territory.

(4) For the purposes of this Act, where a person is to be taken to have been convicted of an offence in a particular State or Territory by reason of paragraph (3)(d), the person shall be taken to have been so convicted before the Supreme Court of that State or Territory.

(5) A reference in this Act, in relation to a person’s conviction of an offence, to the commission of the offence shall, where the person is to be taken to have been convicted of the offence by reason of paragraph (1)(d), be read as a reference to the alleged commission of the offence by the person.

(6) This section does not apply to a foreign serious offence.

6 Meaning of absconding

For the purposes of this Act (except section 17), a person shall be taken to abscond in connection with an offence if and only if:

(a) an information is laid alleging the commission of the offence by the person;

(b) a warrant for the arrest of the person is issued in relation to that information; and

(i) the person dies without the warrant being executed;

(ii) at the end of the period of 6 months commencing on the day on which the warrant is issued:

(A) the person cannot be found; or

(B) the person is, for any other reason, not amenable to justice and, if the person is outside Australia, extradition proceedings are not on foot;

(iii) at the end of the period of 6 months commencing on the day on which the warrant is issued:

(A) the person is, by reason of being outside Australia, not amenable to justice; and

(B) extradition proceedings are on foot;

and subsequently those proceedings terminate without an order for the person’s extradition being made.

7 Meaning of public fraud offence and serious offence

(1) In this Act:

public fraud offence means any of the following:

(a) an offence against section 134.1, 134.2, 135.1 or 135.4 of the Criminal Code;

(b) an offence against repealed section 29D or 86A of the Crimes Act committed after the commencement of this Act;

(c) an offence against section 5, 6, 7 or 8 of the Crimes (Taxation Offences) Act 1980 committed after the commencement of this Act;

(d) an ancillary offence in relation to an offence covered by paragraph (b) or (c).

serious offence means:

(a) a serious narcotics offence; or

(b) a money laundering offence in relation to the proceeds of a serious narcotics offence; or

(d) an offence that is the subject of a declaration under section 96A.

(1A) Paragraph (d) of the definition of serious offence in subsection (1) has effect subject to subsections 96A(2), (4) and (6).

(2) In this section:

ancillary offence, in relation to an offence (in this definition called the main offence), means:

(a) an offence of conspiring to commit the main offence;

(b) an offence of aiding, abetting, counselling or procuring, or being in any way knowingly concerned in, the commission of the main offence;

(c) an offence of receiving or assisting another person in order to enable the person to escape punishment for, or to dispose of the proceeds of, the main offence; or

(d) an offence of attempting to commit the main offence.

money laundering offence means an offence against section 81.

possession includes possession for supply.

production includes growing and manufacture.

serious narcotics offence means an offence:

(a) constituted by the production, possession, supply, importation or export of a narcotic substance; and

(b) involving a quantity of the narcotic substance that is equal to or greater than the trafficable quantity applicable to the narcotic substance.

trafficable quantity, in relation to a narcotic substance, means:

(a) if paragraph (b) does not apply—a trafficable quantity of the substance within the meaning of the Customs Act; or

(b) if the law against which the offence is committed is not the Customs Act and that law includes references to trafficable quantity—a trafficable quantity of the substance within the meaning of that law.

(3) To avoid doubt, express references in this section to ancillary offences do not imply that section 11.6 of the Criminal Code has no application to a particular provision of this Act.

8 Related offences

For the purposes of this Act, 2 offences are related to one another if the elements of the 2 offences are substantially the same acts or omissions.

9 Meaning of dealing with property

For the purposes of this Act, dealing with property of a person includes:

(a) if a debt is owed to that person—making a payment to any person in reduction of the amount of the debt;

(b) removing the property from Australia; and

9A Effective control of property

(1) Property, or an interest in property, may be subject to the effective control of a person within the meaning of this Act whether or not the person has:

(a) a legal or equitable estate or interest in the property; or

(b) a right, power or privilege in connection with the property.

(2) Without limiting the generality of any other provision of this Act, in determining:

(a) whether or not property, or an interest in property, is subject to the effective control of a person; or

(b) whether or not there are reasonable grounds to believe that property, or an interest in property, is subject to the effective control of a person;

regard may be had to:

(c) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property;

(d) a trust that has a relationship to the property; and

(e) family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (c) or trusts of the kind referred to in paragraph (d), and other persons.

10 Appropriate court in relation to indictable offence

(1) Where a person is convicted of an offence before the Supreme Court of a State or Territory, that Supreme Court is the appropriate court in relation to the conviction.

(2) Where a person is convicted of an offence before any other court of a State or Territory, the court before which the person was convicted and the Supreme Court of that State or Territory are both appropriate courts in relation to the conviction.

11 Act to bind Crown

(1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and of Norfolk Island.

(2) Nothing in this Act renders the Crown in right of the Commonwealth, of a State, of the Northern Territory or of Norfolk Island liable to be prosecuted for an offence.

12 Act to apply both within and outside Australia

This Act applies throughout the whole of Australia and also applies outside Australia.

13 Application

(1) Subject to subsection (2), Parts II and III (other than section 59) do not apply to a person’s conviction of an offence if the person was convicted of the offence before the commencement of this Act.

(2) Subsection (1) does not apply in relation to interstate forfeiture orders, interstate pecuniary penalty orders, interstate restraining orders, foreign forfeiture orders, foreign pecuniary penalty orders or foreign restraining orders.

(3) Subject to subsection (1) this Act applies to:

(a) an offence committed, or believed to have been committed, at any time (whether before or after the commencement of this Act); and

(b) a person’s conviction at any time of an offence (whether before or after the commencement of this Act).

13A Application of the Criminal Code

Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.

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

Part II—Confiscation

Division 1—Application for confiscation order

14 Application for confiscation order

(1) Where a person is convicted of an indictable offence, the DPP may, subject to subsections (2), (3) and (4) apply to an appropriate court for one or both of the following orders:

(a) a forfeiture order against property that is tainted property in respect of the offence;

(b) a pecuniary penalty order against the person in respect of benefits derived by the person from the commission of the offence.

(2) The DPP:

(a) is not empowered to make an application after the end of the relevant application period in relation to the conviction; and

(b) is not empowered to make an application after the commencement of the Proceeds of Crime Act 2002 unless some or all of the property which could be used to satisfy the order is property in respect of which a restraining order is in force.

(3) The DPP is not empowered to make an application to a court under subsection (1) for a forfeiture order against property in respect of a person’s conviction of an offence if:

(a) an application has previously been made:

(i) under that subsection;

(ii) under another law of the Commonwealth; or

(iii) under a law of a Territory;

for forfeiture or condemnation of the property in respect of the offence; and

(b) the application has been finally determined on the merits;

except with the leave of the court.

(4) The DPP is not empowered to make an application to a court under subsection (1) for a pecuniary penalty order against a person in respect of benefits derived by the person from the commission of an offence if:

(a) an application has previously been made:

(i) under that subsection;

(ii) under another law of the Commonwealth; or

(iii) under a law of a Territory;

for a pecuniary penalty in respect of those benefits derived by the person from the commission of the offence; and

(b) the application has been finally determined on the merits;

except with the leave of the court.

(5) The court shall not grant leave under subsection (3) or (4) unless satisfied that:

(a) the tainted property, or the benefit, to which the new application relates was identified only after the first application was determined;

(b) necessary evidence became available only after the first application was determined; or

(6) An application may be made under this section in relation to one or more indictable offences.

(7) An application may be made under this section for a pecuniary penalty order in respect of an offence even if section 30 applies to the offence.

15 Notice of application

(1) Where the DPP applies for a forfeiture order against property in respect of a person’s conviction of an offence:

(a) the DPP shall give written notice of the application to the person and to any other person the DPP has reason to believe may have an interest in the property;

(b) the person, and any other person who claims an interest in the property, may appear and adduce evidence at the hearing of the application; and

(c) the court may, at any time before the final determination of the application, direct the DPP to give or publish notice of the application to a specified person or class of persons, in the manner and within the time that the court considers appropriate.

(2) Where the DPP applies for a pecuniary penalty order against a person:

(a) the DPP shall give the person written notice of the application; and

(b) the person may appear and adduce evidence at the hearing of the application.

16 Amendment of application

(1) Subject to subsection (2), where the DPP applies for a confiscation order, the court hearing the application may amend the application:

(a) on application by the DPP; or

(b) with the consent of the DPP.

(2) The court shall not amend the application so as to:

(a) include additional property in an application for a forfeiture order; or

(b) include an additional benefit in an application for a pecuniary penalty order;

unless the court is satisfied that:

(d) necessary evidence became available only after the application was originally made.

(3) Where:

(a) the DPP applies to amend an application for a forfeiture order; and

(b) the amendment would have the effect of including additional property in the application for the forfeiture order;

then:

(c) the DPP shall give written notice of the application to amend to any person who the DPP has reason to believe may have an interest in property to be included in the application for the forteiture order; and

(d) any person who claims an interest in the property to be included in the application for the forfeiture order may appear and adduce evidence at the hearing of the application to amend.

(4) Where:

(a) the DPP applies to amend an application for a pecuniary penalty order against a person; and

(b) the effect of the amendment would be to include an additional benefit in the application for the pecuniary penalty order;

the DPP shall give the person written notice of the application to amend.

17 Making of confiscation order where person has absconded

Where a person is, by reason of paragraph 5(1)(d), to be taken to have been convicted of an indictable offence, a court shall not make a confiscation order in reliance on the person’s conviction of the offence unless the court is satisfied, on the balance of probabilities, that the person has absconded and:

(a) the person has been committed for trial for the offence; or

(b) 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.

18 Procedure on application

(1) Where an application is made to a court for a confiscation order in respect of a person’s conviction of an offence, the court may, in determining the application, have regard to the transcript of any proceeding against the person for the offence and to the evidence given in any such proceeding.

(2) Where:

(a) an application is made for a confiscation order in respect of a person’s conviction of an offence;

(b) the application is made to the court before which the person was convicted; and

the court may, if satisfied that it is reasonable to do so in all the circumstances, defer passing sentence until it has determined the application for the confiscation order.

(3) Where:

(a) a person is to be taken to have been convicted of an offence by reason of paragraph 5(1)(c); and

(b) an application is made to a court for a confiscation order in respect of the conviction;

the reference in subsection (1) to a proceeding against the person for the offence includes a reference to a proceeding against the person for the other offence referred to in that paragraph.

Division 2—Forfeiture orders

19 Forfeiture orders

(1) Where:

(a) the DPP applies to a court for an order under this section against property in respect of a person’s conviction of an offence; and

(b) the court is satisfied that the property is tainted property in respect of the offence;

the court may, if it considers it appropriate, order that the property, or such of the property as is specified by the court in the order, is forfeited to the Commonwealth.

(2) Where the court orders that property (other than money) is forfeited to the Commonwealth, the court shall specify in the order the amount that it considers to be the value of the property at the time when the order is made.

(3) In considering whether it is appropriate to make a forfeiture order 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 such an order; and

(b) the use that is ordinarily made, or was intended to be made, of the property.

(4) In considering whether it is appropriate to make a forfeiture order under subsection (1) in respect of particular property, the court may also have regard to the gravity of the offence concerned.

(5) A court that makes a forfeiture order against property may, if it is satisfied that:

(a) it would not be contrary to the public interest for a person’s interest in the property to be transferred to the person; and

(b) there is no other reason why the person’s interest in the property should not be transferred to that person;

by order:

(d) declare that the forfeiture order may, to the extent to which it relates to the interest, be discharged as provided by section 33.

(6) Where:

(a) the DPP applies for a forfeiture order against particular property in reliance on a person’s conviction of an 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 commission of 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 shall presume that the property was used in, or in connection with, the commission of the offence; or

(d) in any other case—the court shall not make a forfeiture order against the property unless it is satisfied that the property was used in, or in connection with, the commission of the offence.

(7) Where 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.

(8) Without limiting the generality of subsection (7), where a court makes a forfeiture order against registrable property, the court may direct an officer of the court to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.

20 Effects of forfeiture order

(1) Subject to subsection (2), where a court makes a forfeiture order against property, the property vests absolutely in the Commonwealth.

(2) Where a forfeiture order is made against registrable property:

(a) the 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;

(b) the Commonwealth is entitled to be registered as owner of the property; and

(c) the Minister 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 owner, including, without limiting the generality of this, the execution of any instrument required to be executed by a person transferring an interest in property of that kind.

(2A) If a forfeiture order has been made against registrable property:

(a) the DPP has power, on behalf of the Commonwealth, to do anything necessary or convenient to give notice of, or otherwise protect, the equitable interest of the Commonwealth in the property; and

(b) any such action by or on behalf of the Commonwealth is not a dealing for the purposes of paragraph (3)(a).

(3) Where a court makes a forfeiture order against property:

(a) the property shall not, except with the leave of the court and in accordance with any directions of the court, be disposed of, or otherwise dealt with, by or on behalf of the Commonwealth, before the relevant time; and

(b) if, at the relevant time, the order has not been discharged, then, subject to any direction under subsection (3A), the Official Trustee must, as soon as practicable after the relevant time:

(i) if the property is money—after paying the Official Trustee’s remuneration and other costs, charges and expenses of the kind referred to in subsection 55(1) payable to or incurred by it in connection with the restraining order, credit the amount of the remainder of the money to the Confiscated Assets Special Account as required by section 34B; and

(ii) if the property is not money—sell or otherwise dispose of the property and, after paying the Official Trustee’s remuneration and other costs, charges and expenses of the kind referred to in subsection 55(1) payable to or incurred by it in connection with the restraining order or the sale or disposition, credit the amount of the remainder of those proceeds to the Confiscated Assets Special Account as required by section 34B.

(3A) Where a court makes a forfeiture order against property, the Attorney‑General, or a prescribed officer authorised by the Attorney‑General for the purposes of this subsection, may, at or after the relevant time but before the property is dealt with under paragraph (3)(b), direct that the property be disposed of, or otherwise dealt with, as specified in the direction.

(4) Without limiting the generality of subsection (3A), the directions that may be given pursuant to that subsection include a direction that property is to be disposed of in accordance with the provisions of a law specified in the direction.

(5) A reference in this section to the appeal period in relation to a person’s conviction of an offence is:

(a) in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(b)—a reference to the appeal period in relation to the finding of the person guilty of the offence; and

(b) in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(c)—a reference to the appeal period in relation to the person’s conviction of the other offence referred to in that paragraph.

(6) In this section:

appeal period, in relation to a decision of a court or a finding, means the period ending:

(a) if the period provided for the lodging of an appeal against the decision or finding has ended without such an appeal having been lodged—at the end of that period; or

(b) if an appeal against the decision or finding has been lodged—when the appeal lapses or is finally determined.

relevant time, in relation to a forfeiture order made in reliance on a person’s conviction of an offence, means:

(a) the end of the appeal period in relation to the making of the forfeiture order; or

(b) the end of the appeal period in relation to the person’s conviction;

whichever is the later.

21 Effect of forfeiture order on third parties

(1) Where an application is made for a forfeiture order against particular property, a person who claims an interest in the property may apply, before the forfeiture order is made, to the court for an order under subsection (6).

(2) Subject to subsections (3) and (7), where a court makes a forfeiture order against property, a person who claims an interest in the property may apply to the court for an order under subsection (6).

(3) A person who:

(a) was given notice of the application for the forfeiture order; or

(b) appeared at the hearing of the application;

shall not make an application to a court under subsection (2) except with the leave of the court.

(4) The court may grant the person leave to apply if the court is satisfied that there are special grounds for granting the leave.

(5) Without limiting the generality of subsection (4), the court may grant a person leave to apply if the court is satisfied that:

(a) the person, for a good reason, did not attend the hearing of the application for the forfeiture order although the person had notice of the application; or

(b) particular evidence proposed to be adduced by the person in connection with the application under subsection (2) was not available to the person at the time of the hearing of the application for the forfeiture order.

(6) If a person applies to a court for an order under this subsection in respect of the applicant’s interest in property and the court is satisfied that:

(a) the applicant was not, in any way, involved in the commission of an offence in respect of which forfeiture of the property is sought, or the forfeiture order against the property was made, as the case requires; and

(b) if the applicant acquired the interest at the time of or after the commission of such an offence—the applicant acquired the interest:

(i) for sufficient consideration; and

(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time of the acquisition, tainted property;

the court shall make an order:

(d) either:

(i) if the interest is still vested in the Commonwealth—directing the Commonwealth to transfer the interest to the applicant; or

(ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

(7) Subject to subsection (8), an application under subsection (2) shall be made before the end of the period of 6 months commencing on the day on which the forfeiture order is made.

(8) Where a forfeiture order is made against property, the court that made the forfeiture order may grant a person claiming an interest in the property leave to apply under subsection (2) outside the period referred to in subsection (7) if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the part of the person.

(9) A person who makes an application under subsection (1) or (2) in respect of property shall give notice to the DPP and the Minister, as prescribed, of the making of the application.

(10) The DPP shall be a party to any proceedings upon an application under subsection (1) or (2) and the Minister may intervene in any such proceedings.

22 Discharge of forfeiture order on appeal or by quashing of conviction

(1) Where:

(a) a court makes a forfeiture order against property in reliance on a person’s conviction of an offence; and

(b) the conviction is subsequently quashed;

the quashing of the conviction discharges the order.

(1A) This section does not apply if the conviction is quashed after the commencement of the Proceeds of Crime Act 2002.

Note: Division 6 of Part 2‑2 of the Proceeds of Crime Act 2002 applies in relation to convictions quashed after that commencement: see subitem 21(1) of Schedule 7 to the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002.

(2) Where a forfeiture order against property is discharged as provided by subsection (1) or by a court hearing an appeal against the making of the order, the DPP shall:

(a) as soon as practicable after the discharge of the order, give written notice of the discharge of the forfeiture order to any person the DPP has reason to believe may have had an interest in the property immediately before the making of the forfeiture order; and

(b) if required to do so by a court—give or publish notice of the discharge of the forfeiture order to a specified person or class of persons in the manner and within the time that the court considers appropriate.

(3) A notice under subsection (2) shall include a statement to the effect that a person claiming an interest in the property may apply under subsection (4) for the transfer of the interest to the person.

(4) Where a forfeiture order against property is discharged as provided by subsection (1) or by a court hearing an appeal against the making of the order, any person who claims to have had an interest in the property immediately before the making of the forfeiture order may apply to the Minister, in writing, for the transfer of the interest to the person and, on receipt of an application from a person who had an interest in the property immediately before the making of the forfeiture order:

(a) if the interest is still vested in the Commonwealth—the Minister shall arrange for the interest to be transferred to the person; or

(b) in any other case—there is payable to the person an amount equal to the value of the interest.

(5) Where the Minister is required by this section to arrange for property to be transferred to a person, the Minister has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, without limiting the generality of this, the execution of any instrument and the making of an application for registration of an interest in the property on any appropriate register.

Division 2A—Registered foreign and international forfeiture orders

23 Registered foreign and international forfeiture orders

(1) If:

(a) a foreign forfeiture order is registered in a court in Australia under the Mutual Assistance Act; or

(b) an order is registered in a court in Australia under section 45 of the International War Crimes Tribunals Act 1995;

Division 2 applies in relation to the order as if subsections 19(5) and 20(3), (4), (5) and (6) and sections 21 and 22 were omitted.

(2) If:

(a) a foreign forfeiture order against property is registered in a court in Australia under the Mutual Assistance Act; or

(b) an order against property is registered in a court in Australia under section 45 of the International War Crimes Tribunals Act 1995;

the property may, subject to section 23A, be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney‑General or of a person authorised by the Attorney‑General in writing for the purposes of this subsection.

23A Effect on third parties of registration of foreign or international forfeiture order

(1) This section applies where, after the commencement of this section, a court in Australia registers under the Mutual Assistance Act a foreign forfeiture order against property.

(1A) This section also applies if a court registers under section 45 of the International War Crimes Tribunals Act 1995 an order against property.

(2) On registering the foreign or international forfeiture order, the court shall direct the DPP to give or publish notice of the registration:

(a) to specified persons (other than a person convicted of a foreign or international offence in respect of which the order was made) the court has reason to believe may have an interest in the property; and

(b) in the manner and within the time the court considers appropriate.

(3) A person (other than a person convicted of a foreign or international offence in respect of which the foreign or international forfeiture order was made) who claims an interest in the property may apply to the court for an order under subsection (7).

(4) A person who was given notice of, or appeared at, the hearing held in connection with the making of the foreign or international forfeiture order is not entitled, except with the leave of the court, to apply under subsection (3).

(5) The court may grant leave under subsection (4) if satisfied that there are special grounds for doing so.

(6) Without limiting the generality of subsection (5), the court may grant a person leave under subsection (4) if the court is satisfied that:

(a) the person, for a good reason, did not attend the hearing referred to in subsection (4) although the person had notice of the hearing; or

(b) particular evidence that the person proposes to adduce in connection with the proposed application under subsection (3) was not available to the person at the time of the hearing referred to in subsection (4).

(7) If, on an application for an order under this subsection, the court is satisfied that:

(a) the applicant was not, in any way, involved in the commission of a foreign or international offence in respect of which the foreign or international forfeiture order was made; and

(b) if the applicant acquired his, her or its interest in the property at the time of or after the commission of such an offence—the applicant acquired the interest:

(i) for sufficient consideration; and

(ii) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was, at the time of the acquisition, tainted property in relation to a foreign or international offence;

the court shall make an order:

(c) declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest in the property; and

(d) either:

(i) directing the Commonwealth to transfer the interest to the applicant; or

(ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

(8) Subject to subsection (9), an application under subsection (3) shall be made before the end of 6 weeks beginning on the day when the foreign or international forfeiture order is registered in the court.

(9) The court may grant a person leave to apply under subsection (3) outside the period referred to in subsection (8) if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the person’s part.

(10) A person who applies under subsection (3) shall give to the DPP and the Minister notice, as prescribed, of the application.

(11) The DPP shall be a party to proceedings on an application under subsection (3) and the Minister may intervene in such proceedings.

(12) In this section:

foreign or international forfeiture order means:

(a) the foreign forfeiture order mentioned in subsection (1) in relation to which this section applies; or

(b) the order mentioned in subsection (1A) in relation to which this section applies;

as the case may be.

foreign or international offence means:

(a) a foreign serious offence; or

(b) a Tribunal offence within the meaning of the International War Crimes Tribunals Act 1995;

as the case requires.

Division 3—Pecuniary penalty orders

24 Application of Division

This Division applies to:

(a) property that comes into the possession, or under the control, of a person either within or outside Australia and either before or after the commencement of this Act; and

(b) benefits that are provided to a person either within or outside Australia and either before or after the commencement of this Act.

25 Special provisions in relation to serious offences

(1) Where an application is made to a court for a pecuniary penalty order against a person in reliance on the person’s conviction of a serious offence, the court shall not make a pecuniary penalty order in reliance on the conviction until after the end of the period of 6 months commencing on the day of the conviction.

(2) Subsection (1) does not apply to an application for a pecuniary penalty order against a person who is to be taken to have been convicted of the serious offence by reason of paragraph 5(1)(d).

26 Pecuniary penalty orders

(1) Where:

(a) an application is made to a court for an order under this section in respect of benefits derived by a person from the commission of an offence; and

(b) the court is satisfied that the person derived benefits from the commission of the offence;

the court may, if it considers it appropriate:

(d) order the person to pay to the Commonwealth a pecuniary penalty equal to the penalty amount.

(2) Subject to subsections (3) and (4), the penalty amount is the value of the benefits as assessed under paragraph (1)(c).

(3) Where:

(a) property that is proceeds of the offence has been forfeited, under this Act or another law of the Commonwealth or under a law of a Territory, in relation to the offence; or

(b) a forfeiture order is proposed to be made against property that is proceeds of the offence;

the penalty amount shall be taken to be reduced by an amount equal to the value of the property as at the time of the making of the pecuniary penalty order.

(4) Where the court making a pecuniary penalty order is satisfied that an amount of tax (whether payable under a law of the Commonwealth, a State, a Territory or a foreign country) that has been paid by the person is attributable in whole or in part to the benefits in respect of which the order is being made, the court may determine that the penalty amount be reduced by the amount that, in the opinion of the court, represents the extent to which the amount of tax so paid is attributable to those benefits and where the court makes such a determination the penalty amount shall be taken to be reduced accordingly.

(5) If the court considers it appropriate to do so, the court may reduce the amount payable by a person under a pecuniary penalty order made in relation to an offence by an amount equal to the amount payable by the person by way of fine, restitution, compensation or damages in relation to the offence.

(6) Where:

(a) a court makes a pecuniary penalty order in relation to an offence;

(b) in calculating the penalty amount, the court took into account a forfeiture of, or proposed forfeiture order in respect of, property; and

(c) 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 DPP may apply to the court for a variation of the pecuniary penalty order to increase the penalty amount by the value of the property and the court may, if it considers it appropriate to do so, vary the order accordingly.

(7) Where:

(a) a court makes a pecuniary penalty order against a person in relation to an offence;

(b) in calculating the penalty amount, the court took into account, in accordance with subsection (4), an amount of tax paid by the person; and

the DPP may apply to the court for a variation of the pecuniary penalty order to increase the penalty amount by the amount repaid or refunded and the court may, if it considers it appropriate to do so, vary the order accordingly.

(8) An amount payable by a person to the Commonwealth in accordance with a pecuniary penalty order is a civil debt due by the person to the Commonwealth.

(9) 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 and the debt arising from the order shall be taken to be a judgment debt.

27 Assessment of pecuniary penalty

(1) In this section:

insolvency trustee means:

(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.

offence period, in relation to an application under subsection 14(1) made in relation to 2 or more offences, means the period commencing when the earlier or earliest of those offences was committed and ending when the later or latest of those offences was committed.

(2) For the purposes of an application for a pecuniary penalty order against a person (in this subsection called the defendant), the value of the benefits derived by the defendant from the commission of an offence or offences shall be assessed by the court having 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 came into the possession or under the control of:

(i) the defendant; or

(ii) another person at the request or direction of the defendant;

by reason of the commission of the offence or any of the offences;

(b) the value of any other benefit provided to:

(i) the defendant; or

(ii) another person at the request or direction of the defendant;

by reason of the commission of the offence or any of the offences;

(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 defendant’s property:

(i) where the application relates to a single offence—before, during and after the commission of the offence; or

(ii) where the application relates to 2 or more offences—before, during and after the offence period;

(e) the defendant’s income and expenditure:

(i) where the application relates to a single offence—before, during and after the commission of the offence; or

(ii) where the application relates to 2 or more offences—before, during and after the offence period.

(3) The court, in quantifying the value of a benefit for the purposes of this section, may treat as the value of the benefit the value that the benefit would have had if derived at the time when the valuation is being made and, without limiting the generality of this, may have regard to any decline in the purchasing power of money between the time when the benefit was derived and the time when the valuation is being made.

(4) Where an application is made for a pecuniary penalty order against a person in respect of a single ordinary indictable offence, the following provisions have effect:

(a) if, at the hearing of the application, evidence is given that the value of the person’s property during or after the commission of the offence exceeded the value of the person’s property before the commission of the offence, then, for the purposes of subsection 26(1), the court shall, subject to paragraphs (b) and (c) and subsection (7), treat the value of the benefits derived by the person from the commission of the offence as being not less than the amount of the greatest excess;

(b) if, after evidence of the kind referred to in paragraph (a) is given, the person satisfies the court that the whole of the excess was due to causes unrelated to the commission of the offence, paragraph (a) does not apply to the excess;

(c) if, after evidence of the kind referred to in paragraph (a) is given, the person satisfies the court that a part of the excess was due to causes unrelated to the commission of the offence, paragraph (a) applies to the excess as if it were reduced by the amount of that part.

(5) Where an application is made for a pecuniary penalty order against a person in respect of 2 or more ordinary indictable offences, the following provisions have effect:

(a) if, at the hearing of the application, evidence is given that the value of the person’s property at any time during or after the offence period exceeded the value of the person’s property before the offence period, then, for the purposes of subsection 26(1), the court shall, subject to paragraphs (b) and (c) and to subsection (7), treat the value of the benefits derived by the person from the commission of the offences as being not less than the amount of the excess;

(c) if, after evidence of the kind referred to in paragraph (a) is given, the person satisfies the court that a part of the excess was due to causes unrelated to the commission of the offences, paragraph (a) applies to the excess as if it were reduced by the amount of that part.

(6) Where an application is made for a pecuniary penalty order against a person in relation to a serious offence or serious offences:

(a) all property of the person at the time the application is made; and

(b) all property of the person at any time:

(i) within the period between the day the offence, or the earliest offence, was committed and the day on which the application is made; or

(ii) within the period of 5 years immediately before the day on which the application is made;

whichever is the shorter;

shall be presumed, unless the contrary is proved, to be property that came into the possession or under the control of the person by reason of the commission of the offence or offences.

(7) A benefit shall not be taken into account for the purposes of this section if a pecuniary penalty has been imposed in respect of the benefit under:

(a) this Act;

(b) Division 3 of Part XIII of the Customs Act;

(d) a law of a State.

(8) In calculating, for the purposes of an application for a pecuniary penalty order, the value of benefits derived by a person from the commission of an offence or offences, any expenses or outgoings of the person in connection with the commission of the offence or offences shall be disregarded.

(9) For the purposes of this section, where property of a person vests in an insolvency trustee, the property shall be taken to continue to be the property of the person.

(10) 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, that was the amount, or 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;

notwithstanding any rule of law or practice relating to hearsay evidence, and the testimony is prima facie evidence of the matters testified to.

28 Court may lift corporate veil etc.

(1) In assessing the value of benefits derived by a person from the commission of an offence or offences, the court may treat as property of the person any property that, in the opinion of the court, is subject to the effective control of the person.

(3) On application by the DPP, a court may, if in its opinion particular property is subject to the effective control of a person against whom the court has made a pecuniary penalty order, make an order declaring that the whole, or a specified part, of that property is available to satisfy the pecuniary penalty order.

(4) Where a court declares that property is available to satisfy a pecuniary penalty order:

(a) the order may be enforced against the property as if the property were property of the person against whom the order is made; and

(b) a restraining order may be made in respect of the property as if the property were property of the person against whom the order is made.

(5) Where the DPP makes an application for an order under subsection (3) that property is available to satisfy a pecuniary penalty order against a person:

(a) the DPP shall give written notice of the application to the person and to any person who the DPP has reason to believe may have an interest in the property; and

(b) the person and any person who claims an interest in the property may appear and adduce evidence at the hearing of the application.

29 Amounts paid in respect of registered foreign pecuniary penalty orders

Where a foreign pecuniary penalty order is registered in a court in Australia under the Mutual Assistance Act, any amount paid (whether in Australia, in the foreign country in which the order was made or elsewhere) in satisfaction of the foreign pecuniary penalty order shall be taken to have been paid in satisfaction of the debt that arises by reason of the registration of the foreign pecuniary penalty order in that court.

Division 4—Forfeiture in case of serious offence

30 Forfeiture of all restrained property if person convicted of serious offence

(1) If:

(a) a person (in this subsection called the defendant) is convicted of a serious offence (otherwise than by reason of paragraph 5(1)(d));

(b) before the commencement of the Proceeds of Crime Act 2002, a restraining order is or was granted in respect of property (whether property of the defendant or of some other person) in reliance on:

(i) the defendant’s conviction of that offence; or

(ii) the charging or proposed charging of the defendant with that offence or a related offence;

(c) the restraining order, to the extent to which it relates to the property, is not the subject of a declaration under subsection 48(4); and

(d) the restraining order is in force at the end of:

(i) the period of 6 months starting on the day of the conviction; or

(ii) if an order under section 30A is in force at the end of that period—the end of the extended period;

the property is, under this subsection, forfeited to the Commonwealth at the end of that period, or that extended period, as the case may be.

(2) Subject to subsection (3), where property is forfeited to the Commonwealth by virtue of subsection (1), the property vests absolutely in the Commonwealth.

(3) Where registrable property is forfeited to the Commonwealth by virtue of subsection (1):

(a) the 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;

(b) the Commonwealth is entitled to be registered as owner of the property; and

(c) the Minister has power, on behalf of the Commonwealth, to do, or to authorise the doing of, anything necessary or convenient to obtain the registration of the Commonwealth as owner, including, without limiting the generality of this, the execution of any instrument required to be executed by a person transferring an interest in property of that kind.

(3A) If registrable property has been forfeited to the Commonwealth because of subsection (1):

(a) the DPP has power, on behalf of the Commonwealth, to do anything necessary or convenient to give notice of, or otherwise protect, the equitable interest of the Commonwealth in the property; and

(b) any such action by or on behalf of the Commonwealth is not a dealing for the purposes of paragraph (4)(a).

(4) Where property is forfeited to the Commonwealth under this section in respect of a person’s conviction of a serious offence:

(a) the property shall not, except with the leave of the court that made the relevant restraining order and in accordance with any directions of the court, be disposed of, or otherwise dealt with, by or on behalf of the Commonwealth, before the end of the appeal period in respect of the conviction; and

(b) if, at the end of the appeal period in respect of the conviction, the conviction has not been quashed, then, subject to any direction under subsection (4A), the Official Trustee must, as soon as practicable after the end of the appeal period:

(4A) Where property is forfeited under this section because of a person’s conviction of a serious offence, the Attorney‑General, or a prescribed officer authorised by the Attorney‑General for the purposes of this subsection, may, at or after the end of the appeal period in respect of the conviction but before the property is dealt with under paragraph (4)(b), direct that the property be disposed of, or otherwise dealt with, as specified in the direction.

(5) Without limiting the generality of subsection (4A), the directions that may be given pursuant to that subsection include a direction that property is to be disposed of in accordance with the provisions of a law specified in the direction.

(6) Where property is forfeited to the Commonwealth under subsection (1), the Minister may give all directions that are necessary or convenient to realise the Commonwealth’s interest in the property.

(7) Without limiting the generality of subsection (6), where registrable property is forfeited to the Commonwealth under subsection (1), the Minister may direct 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.

(8) A reference in this section to the appeal period in relation to the conviction of a person of an offence is:

(b) in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(c)—a reference to the appeal period in relation to the conviction of the person of the other offence referred to in that paragraph.

(8A) Where a court makes a restraining order in reliance on:

(a) a person’s conviction of a serious offence; or

(b) the charging or proposed charging of a person with such an offence;

a person may apply to the court for a declaration that property that was subject to the restraining order has been forfeited to the Commonwealth under subsection (1) and the court, if satisfied that the property has been forfeited to the Commonwealth under that subsection, shall make a declaration accordingly.

(9) In this section:

appeal period, in relation to a person’s conviction of an offence, means the period ending:

(a) if the period provided for the lodging of an appeal against the conviction has ended without such an appeal having been lodged—at the end of that period; or

(b) if an appeal against the conviction has been lodged—when the appeal lapses or is finally determined.

30A Extension of waiting period

(1) If:

(a) a person (the defendant) is convicted of a serious offence; and

(b) a restraining order is or was granted in reliance on:

(i) the defendant’s conviction of the offence; or

(ii) the charging or proposed charging of the defendant with the offence or a related offence; and

the person mentioned in paragraph (c) may apply to the court for an order extending the waiting period in relation to the defendant’s conviction.

(2) Subsection (1) does not apply if the person is taken to have been convicted of the serious offence because of paragraph 5(1)(d).

(3) An application under this section must be made before the end of the waiting period concerned.

(4) Subject to subsection (5), the court may, on an application made under this section, extend the waiting period for such further period as the court specifies. The further period must not, however, be longer than 9 months from the end of the waiting period concerned.

(5) The court must not grant an application under this section unless satisfied that the applicant made the section 48 application without undue delay, and has since diligently prosecuted that application.

(6) If the court extends a waiting period, the extended period ends:

(a) when the period specified by the court ends; or

(b) when the section 48 application is finally determined;

whichever happens first.

(7) If:

(a) the court makes an order under this section; and

(b) the section 48 application is finally determined within the period of 6 months starting on the day of the defendant’s conviction;

the order under this section stops being in force on the day the section 48 application is finally determined.

(8) In this section:

section 48 application means an application under subsection 48(2), (3) or (4).

waiting period, in relation to a person’s conviction of an offence, means the period of 6 months mentioned in subparagraph 30(1)(d)(i).

31 Recovery of property to which section 30 applies

(1) Where property is forfeited to the Commonwealth under section 30, a person who claims an interest in the property may, subject to subsections (2) and (4), apply to the court that made the relevant restraining order for an order under subsection (6) or (7).

(2) The application shall, subject to subsection (3), be made before the end of the period of 6 months commencing on the day on which the property is forfeited to the Commonwealth.

(3) The court may grant a person leave to apply after the end of the period referred to in subsection (2) if the court is satisfied that the delay in making the application is not due to neglect on the part of the applicant.

(4) An application for an order under subsection (6) or (7) in relation to an interest in property shall not be made by a person who was given notice of:

(a) proceedings on the application for the relevant restraining order; or

(b) the making of the relevant restraining order;

except with the leave of the court.

(5) The court may grant a person leave to make an application if the court is satisfied that the person’s failure to seek to have the property excluded from the relevant restraining order was not due to any neglect on the part of the applicant.

(6) Where a person applies for an order under this subsection in respect of an interest in property, the court may:

(a) if satisfied that:

(i) the applicant was not, in any way, involved in the commission of the relevant serious offence;

(ia) the applicant’s interest in the property is not subject to the effective control of the defendant; and

(ii) if the applicant acquired the interest at the time of or after the commission of the offence—the applicant acquired the interest:

(A) for sufficient consideration; and

(B) without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; or

(b) if satisfied that:

(i) the property was not used in, or in connection with, any unlawful activity and was not derived or realised, directly or indirectly, by any person from any unlawful activity; and

(ii) the applicant’s interest in the property was lawfully acquired;

make an order:

(d) either:

(i) if the interest is still vested in the Commonwealth—directing the Commonwealth to transfer the interest to the applicant; or

(ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

(7) Where a person applies for an order under this subsection in respect of an interest in property, the court may, if satisfied that:

(a) it would not be contrary to the public interest for the interest to be transferred to the person; and

(b) there is no other reason why the interest should not be transferred to the person;

by order:

(d) declare that section 30 shall cease to operate in relation to the interest if payment is made in accordance with section 33.

(7A) A person who makes an application under subsection (1) in respect of property shall give notice to the DPP and the Minister, as prescribed, of the making of the application.

(7B) The DPP shall be a party to any proceedings upon an application under subsection (1) and the Minister may intervene in any such proceedings.

(8) In this section:

defendant, in relation to property forfeited to the Commonwealth under section 30, means the person by virtue of whose conviction the property is forfeited.

relevant restraining order, in relation to property forfeited to the Commonwealth under section 30, means the restraining order by virtue of which the property is forfeited.

32 Effect of quashing of conviction

(1) Where:

(a) property is forfeited to the Commonwealth under section 30 in respect of a person’s conviction of a serious offence; and

(b) the conviction is subsequently quashed;

the DPP shall:

(c) as soon as practicable after the quashing of the conviction, give notice of the quashing of the conviction to any person the DPP has reason to believe may have had an interest in the property immediately before the property was forfeited; and

(d) if required to do so by a court—give or publish notice of the quashing of the conviction to a specified person or class of persons in the manner and within the time that the court considers appropriate.

(1A) This section does not apply if the conviction is quashed after the commencement of the Proceeds of Crime Act 2002.

Note: Division 4 of Part 2‑3 of the Proceeds of Crime Act 2002 applies in relation to convictions quashed after that commencement: see subitem 21(2) of Schedule 7 to the Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002.

(2) A notice under subsection (1) shall include a statement to the effect that a person claiming an interest in the property may apply under subsection (3) for the transfer of the interest to the person.

(3) Where subsection (1) applies to property, any person who claims to have had an interest in the property immediately before it was forfeited may apply to the Minister, in writing, for the transfer of the interest to the person and, on receipt of an application from a person who had an interest in the property immediately before it was forfeited:

(a) if the interest is still vested in the Commonwealth—the Minister shall arrange for the interest to be transferred to the person; or

(b) in any other case—there is payable to the person an amount equal to the value of the interest.

(4) Where the Minister is required by this section to arrange for property to be transferred to a person, the Minister has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, without limiting the generality of this, the execution of any instrument and the making of an application for registration of an interest in the property on any appropriate register.

Division 5—Miscellaneous

33 Person with interest in forfeited property may buy back the interest

(1) Where a court:

(a) makes a forfeiture order against property; and

(b) makes an order under subsection 19(5) in respect of an interest in the property;

the payment to the Commonwealth, while the interest is still vested in the Commonwealth, of the amount specified in the order under subsection 19(5) as the value of the interest discharges the forfeiture order to the extent to which it relates to the interest.

(2) Where:

(a) property is forfeited to the Commonwealth under section 30;

(b) a court makes an order under subsection 31(7) in respect of an interest in the property; and

(c) there is paid to the Commonwealth, while the interest is still vested in the Commonwealth, the amount specified in the order under subsection 31(7) as the value of the interest;

section 30 ceases to apply in relation to the interest.

(3) Where subsection (1) or (2) applies to an interest in property, the Minister shall arrange for the interest to be transferred to the person in whom it was vested immediately before the property was forfeited to the Commonwealth.

(4) Where the Minister is required by this section to arrange for an interest in property to be transferred to a person, the Minister has power, on behalf of the Commonwealth, to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, without limiting the generality of this, the execution of any instrument and the making of an application for registration of an interest in the property on any appropriate register.

34 Buying out other interests in forfeited property

Where:

(a) property is forfeited to the Commonwealth under this Part;

(b) an interest in the property is required to be transferred to a person (in this section called the purchaser) under subsection 22(4) or 33(3), or under a direction under subparagraph 21(6)(d)(i), 23A(7)(d)(i) or 31(6)(d)(i);

(c) the purchaser’s interest in the property, immediately before the forfeiture took place, was not the only interest in the property;

(d) the purchaser gives written notice to each other person who had an interest in the property immediately before the forfeiture took place that:

(i) the purchaser 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 interest with the Minister;

(e) the person served with notice under paragraph (d) in relation to that interest does not lodge a written objection to the purchase of that interest with the Minister within the period referred to in that paragraph; and

(f) the person pays to the Commonwealth, while that interest is still vested in the Commonwealth, an amount equal to the value of that interest;

the Minister shall arrange for that interest to be transferred to the purchaser.

Part IIA—Confiscated Assets Special Account

34A Confiscated Assets Special Account

(1) The Confiscated Assets Account established by Part IIA of this Act is continued in existence as the Confiscated Assets Special Account.

Note: The Confiscated Assets Account was established by subsection 5(3) of the Financial Management Legislation Amendment Act 1999.

(2) The Account is a special account for the purposes of the Public Governance, Performance and Accountability Act 2013.

34B Credits to Confiscated Assets Special Account

(1) There must be credited to the Confiscated Assets Special Account amounts equal to:

(a) proceeds of confiscated assets; and

(b) money paid to the Commonwealth by a foreign country, within the meaning of the Mutual Assistance Act, under a treaty or arrangement providing for mutual assistance in criminal matters; and

(c) money paid to the Commonwealth under a foreign pecuniary penalty order registered under section 34 of the Mutual Assistance Act; and

(d) money (including the proceeds of sale of any property) that is, under a direction referred to in subsection 23(2), directed to be credited to the Confiscated Assets Special Account; and

(e) money deriving from the enforcement of an interstate forfeiture order registered in a Territory, other than money covered by a direction under subsection 20(3A) or 30(4A); and

(f) the Commonwealth’s share, under the equitable sharing program, of proceeds resulting from a breach of the criminal law of a State; and

(g) money, other than money referred to in paragraph (b), paid to the Commonwealth by a foreign country in connection with assistance provided by the Commonwealth in relation to the recovery by that country of the proceeds of unlawful activity or the investigation or prosecution of unlawful activity.

(2) Subject to section 34E, all amounts credited to the Confiscated Assets Special Account are to be identified in accordance with the regulations as distributable funds or suspended funds.

34C Debits from the Confiscated Assets Special Account

(1) The purposes of the Confiscated Assets Special Account are:

(a) to the extent to which it comprises suspended funds:

(i) making such payments, if any, to States or to foreign countries as the Attorney‑General considers are appropriate under the equitable sharing program; and

(ii) making such payments as the Attorney‑General considers necessary to satisfy the Commonwealth’s obligations in respect of a registered foreign forfeiture order, an order registered under section 45 of the International War Crimes Tribunals Act 1995 or a registered foreign pecuniary penalty order; and

(iii) making such payments to a State as the Attorney‑General considers necessary following a credit to the Account under paragraph 34B(1)(b) of money received from a foreign country; and

(iv) paying the prescribed annual management fee in accordance with the regulations; and

(v) making such payments by way of restitution as are required under subparagraph 21(6)(d)(ii), paragraph 22(4)(b) or subparagraph 31(6)(d)(ii); and

(b) to the extent to which it comprises distributable funds—making payments to a GBE of any proceeds of confiscated assets that relate to a relevant offence that caused financial loss to the GBE.

(2) In this section:

relevant offence means an offence against section 131.1, 132.1, 132.6, 132.8, 134.1, 134.2, 135.1, 135.2, 135.4, 136.1, 137.1 or 137.2 of the Criminal Code or a prescribed offence.

34D Debiting balance of distributable funds standing to the credit of Confiscated Assets Special Account

(1) Once in each financial year the Attorney‑General must determine, in accordance with the regulations, the amount of distributable funds not required for meeting payments under paragraph 34C(1)(b).

(2) As soon as practicable after the making of the determination, that amount must be debited from the balance of distributable funds standing to the credit of the Confiscated Assets Special Account.

34E Determinations by Official Trustee about suspended and distributable funds

(1) The Official Trustee may, at such times as it considers appropriate, but must, at least once in every 6 months, determine whether the amount of suspended funds standing to the credit of the Confiscated Assets Special Account:

(a) is likely to be insufficient to meet the payments to be made out of the suspended funds for the purposes of paragraph 34C(1)(a); or

(b) is likely to exceed the amount required to meet those payments.

(2) Where the Official Trustee determines that the amount of suspended funds is likely to be insufficient to meet the payments to be made out of the suspended funds for the purposes of paragraph 34C(1)(a), the Official Trustee must declare that such an amount of the distributable funds as the Official Trustee identifies, being not more than the amount required to meet those payments, is to be identified as suspended funds.

(3) Where the Official Trustee determines that the amount of suspended funds is likely to exceed the amount required to meet those payments, the Official Trustee must declare that such an amount of the suspended funds as the Official Trustee identifies, being not more than the amount of the likely excess, is to be identified as distributable funds.

Part III—Control of property liable to confiscation

Division 1—Search powers

35 Powers to search for, and seize, tainted property

(1) A police officer may:

(a) search a person for tainted property; and

(b) seize any property found in the course of the search that the police officer believes, on reasonable grounds, to be tainted property;

but only if the search or seizure, as the case requires, is made:

(d) under a warrant issued under section 36; or

(e) under section 38.

(2) A police officer may:

(a) enter upon land, or upon or into premises;

(b) search the land or premises for tainted property; and

(c) seize any property found in the course of the search that the police officer believes, on reasonable grounds, to be tainted property;

but only if the entry, search or seizure, as the case requires, is made:

(d) with the consent of the occupier of the land or premises;

(e) under a warrant issued under section 36; or

(f) under section 38.

(2A) A police officer is not empowered to do anything under this section after the commencement of the Proceeds of Crime Act 2002 unless it is done under a warrant issued under section 36 of this Act for which an application was made under that section before that commencement.

(3) Where a police officer may search a person under this Division, the police officer may also search:

(a) the clothing that is being worn by the person; and

(b) any property in, or apparently in, the person’s immediate control.

(4) Nothing in this Division shall be taken to authorise a police officer to carry out a search by way of an examination of a body cavity of a person.

36 Search warrants in relation to tainted property

(1) Where a police officer has reasonable grounds for suspecting that there is, or may be within the next following 72 hours, tainted property of a particular kind:

(a) on a person;

(b) in the clothing that is being worn by a person; or

the police officer may:

(d) lay before a magistrate an information on oath setting out those grounds; and

(e) apply for the issue of a warrant to search the person for tainted property of that kind.

(2) Where an application is made under subsection (1) for a warrant to search a person, the magistrate may, subject to subsection (6), issue a warrant authorising a police officer (whether or not named in the warrant), with such assistance, and by such force, as is necessary and reasonable:

(a) to search the person for tainted property of that kind; and

(b) to seize property found in the course of the search that the police officer believes, on reasonable grounds, to be tainted property of that kind.

(3) Where a police officer has reasonable grounds for suspecting that there is, or may be within the next following 72 hours, upon any land, or upon or in any premises, tainted property of a particular kind, the police officer may:

(a) lay before a magistrate an information on oath setting out those grounds; and

(b) apply for the issue of a warrant to search the land or premises for tainted property of that kind.

(4) Where an application is made under subsection (3) for a warrant to search land or premises, the magistrate may, subject to subsection (6), issue a warrant authorising a police officer (whether or not named in the warrant), with such assistance, and by such force, as is necessary and reasonable:

(a) to enter upon the land, or upon or into the premises;

(b) to search the land or premises for tainted property of that kind; and

(c) to seize property found in the course of the search that the police officer believes on reasonable grounds to be tainted property of that kind.

(5) A warrant may be issued under subsection (2) or (4) in relation to tainted property whether or not an information has been laid in respect of the relevant offence.

(6) A magistrate shall not issue a warrant under subsection (2) or (4) unless:

(a) the informant or some other person has given to the magistrate, either orally or by affidavit, any further information that the magistrate requires concerning the grounds on which the issue of the warrant is sought;

(b) where an information has not been laid in respect of the relevant offence at the time when the application for the warrant is made—the magistrate is satisfied:

(i) that the property is tainted property; and

(ii) that an information will be laid in respect of the relevant offence within 48 hours; and

(7) There shall be included in a warrant issued under this section:

(a) a statement of the purpose for which the warrant is issued, including a reference to the nature of the relevant offence;

(b) a description of the kind of property authorised to be seized; and

(8) There shall also be stated in a warrant issued under subsection (4) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night.

(9) If, in the course of searching, under a warrant issued under this section, for tainted property in relation to a particular offence, a police officer finds:

(a) property that the police officer believes, on reasonable grounds, to be:

(i) tainted property in relation to the offence, although not of a kind specified in the warrant; or

(ii) tainted property in relation to another indictable offence; or

(b) any thing that the police officer believes, on reasonable grounds, will afford evidence as to the commission of a criminal offence;

and the police officer believes, on reasonable grounds, that it is necessary to seize that property or thing in order to prevent its concealment, loss or destruction, or its use in committing, continuing or repeating the offence or the other offence, the warrant shall be deemed to authorise the police officer to seize that property or thing.

(10) A police officer acting in accordance with a warrant issued under subsection (2) may remove, or require a person to remove, any of the clothing that the person is wearing but only if the removal of the clothing is necessary and reasonable for an effective search of the person under the warrant.

(11) A person shall not be searched under this section except by a person of the same sex.

37 Search warrants may be granted by telephone

(1) Where, by reason of circumstances of urgency, a police officer considers it necessary to do so, the police officer may make application for a search warrant under section 36 to a magistrate, by telephone, in accordance with this section.

(2) Before making the application, the police officer shall prepare an information of a kind referred to in subsection 36(1) or (3), but may, if it is necessary to do so, make the application before the information has been sworn.

(3) Where a magistrate is, upon application made pursuant to subsection (1), satisfied:

(a) after having considered the terms of the information prepared in accordance with subsection (2); and

(b) after having received such further information (if any) as the magistrate requires concerning the grounds on which the issue of the warrant is being sought;

that there are reasonable grounds for issuing the warrant, the magistrate shall complete and sign such a search warrant as the magistrate would have issued under section 36 if the application had been made to the magistrate in accordance with that section.

(4) Where a magistrate signs a warrant under subsection (3):

(a) the magistrate shall inform the police officer of the terms of the warrant and the date on which and the time at which it was signed, and record on the warrant the reasons for granting the warrant; and

(b) the police officer shall complete a form of warrant in the terms furnished to the police officer by the magistrate and write on it the name of the magistrate and the date on which and the time at which the warrant was signed.

(5) Where a police officer completes a form of warrant in accordance with subsection (4), the police officer shall, not later than the day next following the date of the execution of the warrant or the expiry of the warrant, whichever is earlier, give the magistrate who signed the warrant the form of warrant completed by the police officer and the information duly sworn in connection with the warrant.

(6) Upon receipt of the documents referred to in subsection (5), the magistrate shall attach to them the warrant signed by the magistrate and deal with the documents in the manner in which the magistrate would have dealt with the information if the application for the warrant had been made in accordance with section 36.

(7) A form of warrant duly completed by a police officer in accordance with subsection (4) is, if it is in accordance with the terms of the warrant signed by the magistrate, authority for any search, entry or seizure that the warrant so signed authorises.

(8) Where it is material, in any proceedings, for a court to be satisfied that a search, entry or seizure was authorised in accordance with this section, and the warrant signed by a magistrate in accordance with this section authorising the search, entry or seizure is not produced in evidence, the court shall assume, unless the contrary is proved, that the search, entry or seizure was not authorised by such a warrant.

(9) In this section, magistrate does not include a person by virtue only of the person being a justice of the peace.

38 Searches in emergencies

(1) Where a police officer suspects, on reasonable grounds, that particular property is tainted property, the police officer may:

(a) search a person for the property and, if the property is found in the course of the search, seize the property; or

(b) enter upon land, or upon or into premises, and search for the property and, if the property is found in the course of the search, seize the property.

(2) A police officer shall not exercise a power under subsection (1) unless:

(a) the police officer believes, on reasonable grounds, that it is necessary to exercise the power in order to prevent the concealment, loss or destruction of the property; and

(b) the circumstances are so serious and urgent that they require the immediate exercise of the power without the authority of an order of a court or of a warrant issued under this Act.

(2A) Subsection (1) does not apply in respect of particular property unless an information has been laid in respect of the offence that the police officer believes, on reasonable grounds, to be the offence by reason of the commission of which the property is tainted property.

(2B) If, in the course of searching, in accordance with subsection (1), for tainted property in relation to a particular indictable offence, a police officer finds:

(a) property that the police officer believes, on reasonable grounds, to be tainted property in relation to another indictable offence; or

(b) any thing that the police officer believes, on reasonable grounds, will afford evidence as to the commission of a criminal offence;

(3) Where a person is searched under this section, the search shall, if it is practicable in the circumstances to do so, be carried out by a person of the same sex.

39 Responsibility for seized property

(1) Subject to subsection (2), where property is seized under this Division, the Commissioner shall arrange for the property to be kept until it is dealt with in accordance with another provision of this Act, and shall ensure that all reasonable steps are taken to preserve the property while it is so kept.

(2) Where:

(a) a police officer seizes property under this Division; and

(b) the officer believes on reasonable grounds that the property will afford evidence as to the commission of an offence that is the subject of a special ACC operation/investigation;

the Chief Executive Officer of the ACC shall arrange for the property to be kept until it is dealt with in accordance with another provision of this Act, and shall ensure that all reasonable steps are taken to preserve the property while it is so kept.

(3) In this section:

special ACC operation/investigation has the same meaning as in the Australian Crime Commission Act 2002.

40 Return of seized property

(1) Where property has been seized under this Division (otherwise than because it may afford evidence of the commission of an offence), a person who claims an interest in the property may apply to the relevant Supreme Court for an order that the property be returned to the person.

(2) Where a person makes an application under subsection (1) and the court is satisfied that:

(a) the person is entitled to possession of the property;

(b) the property is not tainted property in relation to the relevant offence; and

(c) the person in respect of whose conviction, charging or proposed charging the seizure of the property was made has no interest in the property;

the court shall order the responsible custodian to return the property to the person and where such an order is made the responsible custodian shall arrange for the property to be returned to the person.

(3) Where: